Madras High Court
The Government Of Tamil Nadu vs S.Jayalakshmi And Others on 7 January, 2009
Author: M.Sathyanarayanan
Bench: D.Murugesan, M.Sathyanarayanan
In the High Court of Judicature at Madras
Dated:- 07-01-2009
Coram:
The Honourable Mr.Justice D.MURUGESAN
and
The Honourable Mr.Justice M.SATHYANARAYANAN
Writ Appeal Nos.2607 to 2030, 2708 to 2713, 3179 to 3193, 2455 to 2469 of 2003 & 2345 to 2359 & 3373 to 3380 of 2004 & 1236 to 1240 of 2005
1. The Government of Tamil Nadu
rep. by Special Secretary to Government,
Commercial Taxes (J1 Department),
Secretariat, Chennai-600 009.
2. The Inspector General of Registration,
Chennai-600 028.
3. The District Registrar,
Trichy District,
Tiruchirappalli - 620 001. .. Appellants
Versus
S.Jayalakshmi and others. .. Respondent
Writ Appeals filed under Clause 15 of the Letters Patent against the order of the learned Judge dated 1.11.2002, made in W.P.No.19862 of 2002.
For Appellant .. Mr.P.Subramanian, Addl.Govt.Pleader(W)
For Respondents .. Mr.R.Krishnasamy, S.C. for
Mr.K.Harikrishnan.
*******
JUDGMENT
M.SATHYANARAYANAN, J The appellants are the official respondents in writ petitions. The writ petitions were filed by each of the respondent in these writ appeals, challenging the demand of additional stamp duty on the document of sale executed by the Tamil Nadu Police Housing Corporation Limited ( in short " Corporation") a Government of Tamil Nadu Undertaking, in favour of the writ petitioners and consequential refusal to release the respective sale deeds to the writ petitioners, already registered by the Office of the Sub Registrar of Assurance, on account of non payment of additional stamp duty.
2. The Tamil Nadu Police Housing Corporation is a Government of Tamil Nadu Undertaking which has been formed to provide houses, police stations and office for police personnel. Each of the writ petitioner was allotted a flat by the Corporation. The respective writ petitioner had executed lease-cum-sale agreement in the year 1985 and also paid instalments in full. Thereafter, sale deed was given to each of the writ petitioner and the sale deeds were registered in the Office of the Sub Registrar at Thiruverumbur, Trichy District.
3. The third appellant herein all of a sudden, during the beginning of the year 2000, started issuing notices demanding additional stamp duty on the instruments purporting to exercise powers under Section 47-A of the Indian Stamp Act. The reason for demand of additional stamp duty was that market value of the property as on the date of the registration has not been taken into consideration by the Sub Registrar, Thiruverumbur while registering the sale deeds.
4. The writ petitioners formed an association viz., Trichy Navalpatti Police Colony Owners and Occupants Association and they submitted representation to the third appellant herein stating that the power under Section 47-A of the Stamp Act can only be exercised by the Registering Officer when he has reason to believe that the market value of the property which is the subject matter of conveyance, has not been truly set forth with a view to fraudulently evade payment of stamp duty and that mere lapse of time between the date of agreement and the execution of document will not be the determining factor that the document is under value. The third appellant in turn had sent a communication dated 20.12.2000 to the second appellant herein stating that all the sale deeds given by Tamil Nadu Police Housing Corporation in favour of the allottees/writ petitioners may be registered on the basis of the real value of the property agreed between the said Corporation and the allottees.
5. The second appellant in spite of such communication from the third appellant, had rejected the request of the above said association on 24.1.2001. The association preferred further appeal to the first appellant who was also rejected the said appeal vide order dated 9.11.2001. The association, challenging the vires of the said order, filed W.P.No.11082 of 2001 and this Court has passed an order dated 3.4.2002 stating that since the issue pertaining to the right of an individual, each individual has to file a separate writ petition setting out the details and granted liberty to the association to file a writ petition by each individual. Hence the writ petitions came to be filed.
6. In the writ petitions, it is contended that the transaction of sale between the Corporation and the respective writ petitioner was a sale between the Government of Tamil Nadu Undertaking and the allottee and there cannot be any under valuation or mala fide attached to such transactions. It is further contended that unless there is fraudulent evasion in payment of stamp duty, aid of Section 47-A of the Indian Stamp Act cannot be pressed into service to review the payment of stamp duty already paid on documents.
7. The second appellant who was arrayed as second respondent in the writ petitions filed his counter submitting that the Corporation has built various types of houses and allotted to the writ petitioners according to the category by way of executing sale deeds and the said sale deeds were presented before the registering officer Thiruverumbur and the said officer, has inadvertently admitted the documents for registration on the value set forth therein, instead of taking into account, the guideline value and P.W.D. rates. By virtue of power conferred under Section 9(1)(a) of the Indian Stamp Act, the Government empowered to issue notification remitting or reducing the stamp duty for various kinds of instruments from time to time.
8. It is further contended by the second respondent that in the absence of any notification under the above said provision, the documents in question are chargeable to stamp duty on the market value, on the date of execution of such sale deeds as per explanation to Section 47-A of the Indian Stamp Act.
9. The third respondent in the writ petition/ third appellant has filed his counter stating that the registering officer, Thiruverumbur had inadvertently admitted the deeds of sale produced for registration on the value set forth in the said documents instead of taking into consideration, guideline value and P.W.D. rates. The said mistake was pointed out by the Local Audit in its reports 3/99 and 6/99 and hence action was taken under Section 47-A(1) and 47-A (3) of the Indian Stamp Act.
10. The learned Judge after taking into consideration the averments made in the writ petitions and the counter affidavits, found that in the year 1985, Tamil Nadu Police Housing Corporation which is Government of Tamil Nadu Undertaking has executed lease-cum-sale Agreement in favour of the writ petitioners and they also paid their respective sale consideration in instalments and thereafter, got executed sale deeds by the Corporation before the concerned Sub-Registrar as early as in the year 1999, 2000 and 2001 respectively.
11. The learned Judge on consideration of the materials available on record, held that there is no material on record either to suspect or to hold that the conveyance by the Tamil Nadu Police Housing Corporation in favour of the writ petitioners is either attracted by alleged under valuation or fraudulent evasion of stamp duty. On the other hand, since the sale deeds were executed by the Corporation which is the Government of Tamil Nadu Undertaking in favour of the writ petitioners, it can be presumed that it is a bona fide transaction. The learned Judge further held that unless there is any substantial and material evidence and reasons to believe that the market value of the property conveyed has not been truly set forth in the instrument, with an object to commit a fraudulent evasion of stamp duty to cause loss of revenue, it cannot be presumed that the power conferred under Section 47-A of the Indian Stamp Act is a routine one in respect of each and every transaction.
12. The learned Judge taken into consideration the pronouncements of the Hon'ble Supreme Court of India and held that the market value as set forth in the sale deeds executed by the Tamil Nadu Police Housing Corporation in favour of the respective writ petitioner are truly set forth and hence action under Section 47-A (1) of the Indian Stamp Act cannot be invoked and thereby allowed all the writ petitions. The official respondents in the writ petitions, aggrieved by the said orders, had preferred these writ appeals.
13. Mr.P.Subramanian, learned Additional Government Pleader has submitted that in the absence of exemption notification under Section 9(1)(a) of the Indian Stamp Act, the deeds of conveyance executed by the Tamil Nadu Police Housing Corporation in favour of the writ petitioners are liable for stamp duty as on the date of registration of instruments. The learned additional Government Pleader would further contend that the powers conferred under Section 47-A(1) and 47-A(3) of the Indian Stamp Act can be invoked when there is a reason to believe that there is loss of revenue due to under valuation.
14. The learned Additional Government Pleader in support of his submissions, placed reliance upon the judgment reported in 2008(1) CTC 60 (SC) - State of Rajasthan and others vs. Khandaka Jain Jewellers. The said case arose out of the suit for specific performance. The Hon'ble Supreme Court of Indian has taken into consideration Section 17 and Section 47-A of the Rajasthan (Amendment) Stamp Duty Act found that the Registering Authority is under an obligation to ascertain the correct value at the time and should not go by the value mentioned in the instrument. The Hon'ble Supreme Court of India after considering the scope of Section 47-A read with Sections 3, 17 and 27 of the above said Act found that the Registering Authority has to ascertain whether the Correct value is given in the instrument regarding the market value of the property at the time of sale. Ultimately, it has been held in the said decision that the Collector shall determine the valuation of the instrument on the basis of the market value of the property at the date when the document was tendered by the respondent for registration, and the respondent therein shall pay the stamp duty charges and surcharge, if any, as assessed by the Collector as per the provisions of the Act.
15. The learned Additional Government Pleader heavily stressed upon the ratio laid down in the said decision and submitted the valuation as on the date of presentation of the instrument is the primary factor for levying the stamp duty and since the Registering Officer has inadvertently admitted the instruments for registration on the value set forth in the document instead of taking into account, guideline value and P.W.D. rates, representations submitted by the writ petitioners were rightly rejected, which were confirmed by the Appellate Authority. It has been further submitted by the learned Additional Government Pleader (Writs) that the scope of Section 47-A (1) of the Indian Stamp Act has not been properly considered at the time of disposal of the writ petitions and therefore, prayed for setting aside the impugned orders passed in the writ petitions.
16. Per contra, Mr.R.Krishnasamy, learned senior counsel for Mr.K.Harishankar, learned counsel appearing for the respondent in each of the writ appeals would contend that the lease-cum-sale Agreement came to be executed in the year 1985 by the Tamil Nadu Police Housing Corporation and after the entire instalments were paid, the documents were registered by the respective Sub Registrar in the year 1999, 2000 and 2001. Since the transactions were between the Government Undertaking and the allottees who are the Police Personnel, there is no reason to believe or doubt bona fide of the valuation set forth in the respective instruments. It is further submitted by the learned senior counsel appearing for the respondent that the learned Judge has taken into consideration the ratio laid down in various judgments of the Hon'ble Supreme Court of India and this Court and correctly arrived at a finding and thereby allowed the writ petitions and no interference is warranted in exercise of powers conferred under Clause 15 of Letters of Patent.
17. The learned senior counsel in support of his submissions, placed reliance upon the following decisions:-
i. AIR 1982 (Mad.) 138 - Collector of Nilgiris at Ootacamund vs. M/s. Mahavir Plantations Pte. Ltd.
ii. (1994)4 SCC 595 - Jawajeenagnatham vs. Revenue Divisional Officer, Adilabad, A.P. and others.
iii. 1997(II) CTC 617 (DB) - S.P.Padmavathi vs. The State of Tamil Nadu.
iv. 1999 (2) L.W. 231 - M.Ponnusamy and others vs. The District Collector, Erode and others.
v. 2001(2) CTC 449 (DB) - The District Collector, Erode District, Erode vs. M.Ponnusamy.
vi. 2002(2) CTC 329 - R.Sukumaran and others vs. State of Tamil Nadu and others.
vii. 2006(4) L.W. 695 - The Sub Registrar, Adayar, Chennai vs. Canara Bank, Saidapet Branch and another.
viii. 2008-1-L.W. 743 (DB)- State of Tamil Nadu and others vs. Janab Habeeb Jan.K.
18. In AIR 1982 (Mad.) 138 - Collector of Nilgiris at Ootacamund vs. M/s. Mahavir Plantations Pte. Ltd., it has been held that:
"The valuation guidelines prepared by the Revenue Officials at the instance of the Board of Revenue were avowedly intended merely to assist the Sub-Registrars to find out, prima facie, whether the market value set out in the instruments had been set forth correctly. The guidelines were not intended as a substitute for market value or to foreclose the inquiry by the Collector which he is under a duty to make under Sec. 47A."
It has been further held in the said decision that the determination of market value in land acquisition proceedings cannot be adopted either as the basis or even as one of the piece of evidence, for the purpose of determining the market value under Section 47-A of the Indian Stamp Act. The learned Judge in the said decision has taken into consideration the judgment of a Division Bench of this Court reported in AIR 1974 (Mad.) 117 - State of Tamil Nadu vs. Chandrasekharan, which considered rationale behind Section 47-A of the Stamp Act. In the above said decision, the observations made are as follows:-
"...we are inclined to think that the object of the Amending Act being to avoid large scale evasion of stamp duty, it is not meant to be applied in a matter of fact fashion and in a haphazard way. Market value itself as we already mentioned, is a changing factor and will depend on various circumstances and matters relevant to the consideration. No exactitude is, in the nature of things possible. In working the Act, great caution should be taken in order that it may not work as an engine of oppression. Having regard to the object of the Act, we are inclined to think that normally the consideration stated as the market value in a given instrument brought for registration should be taken to be correct unless circumstances exists which suggest fraudulent evasion."
19. In (1994)4 SCC 595 - Jawajeenagnatham vs. Revenue Divisional Officer, Adilabad, A.P. and others, it has been held that in respect of market value to be computed under Section 23 of the Land Acquisition Act, Basic Valuation Register maintained by the Registering Authority for collection of stamp duty, has not statutory foundation to determine the market value under and the evidence of price fetched in comparable sale transaction, is generally accepted as the best method to determine the market value. The Hon'ble Supreme Court of India in the said decision, had considered the scope of Section 47-A (A.P. Amendment) of the Stamp Act and held that the said provision does not confer power to determine market value of an entire area, region or block and to maintain Basic Valuation Register for levy of stamp duty and the said power is exercisable with reference to the particular land covered by the instrument for registration.
20. In 1997(II) CTC 617 (DB) - S.P.Padmavathi vs. The State of Tamil Nadu, the scope of Section 47-A of the Indian Stamp Act came up for consideration and this Court has considered all the earlier decisions on this aspect and held as follows:-
"It is not in each and every case, the Registering Officer is expected to deal with the instrument under Sec.47-A of the Act, but it is only when the instrument has been undervalued or has not been truly set forth in the instrument. In the case of instrument executed pursuant to the decree, there is no scope for doubting the bona fides of the parties. Of course, we do not rule out the possibility of unscrupulous persons, with a view to evade payment of proper stamp duty, creating agreements to sell for a very low sum and them approaching the Court for specific performance by mutual consent or without much contest, and thereafter presenting the documents for registration pursuant to the decree passed for specific performance. In such cases, under valuation would be apparent and it would also be open to the Registering Officer, after being satisfied as to lack of bona fides and fraudulent attempt on the part of the parties to undervalue the subject of transfer, to invoke the power under Section 47A of the Act. But such a process or proceedings cannot, in the normal course, be pursued in all cases. It is only if the Registering Officer has reason to believe that the consideration about has not been truly set forth in the document."
21. In 1999 (2) L.W. 231 - M.Ponnusamy and others vs. The District Collector, Erode and others, the act of reference made to the Collector under Section 47-A(2) of the Indian Stamp Act after lapse of two years and retention of the sale deeds after completion of registration came up for consideration and it has been held as follows:-
"It is obvious that before registering the document, the Registering Officer has to come to a prima facie conclusion that in the instrument, the market value of the property has not been truly set forth and thereafter, complete registration and refer the same for determination of the market value. The language of Section 47-A of the Indian Stamp Act is very clear. The condition precedent for making a reference is, there must be reason for the Registering Authority to believe that the market value of the property has not been truly set forth in the document presented for registration. Hence, it follows that the reasons must be recorded, however short it may be. It is the duty of the Registering Authority to record reasons for his belief that true market value has not been set out in the document, complete registration and thereafter refer the matter to the Collector for determination of the market value of the property and the proper duty payable thereon.
It is essential to point out that before registration, the Registering Authority has to record that he has reasons to believe that the value of the property has not been duly set forth in the instrument. Only after recording such reasons, the Registering Authority has to complete registration of the instrument in question and thereafter alone, he could refer the same to the Collector under Sub-Section (1) of Section 47-A of the Indian Stamp Act. Such is not the case of the respondents herein. To this extent, the function of the Registering Authority is quasi judicial in nature and he has to come to a conclusion that the market value of the property dealt under the document had not been truly set forth and after completion of registration, he could make a reference. At least some reasons should be recorded and immediately after completion of registration or sooner thereafter, a reference has to be made under Sub-Section (1) of Section 47-A of the said Act.
What is required under Sub-Section (1) of Section 47-A of the Indian Stamp Act is that the Registering Authority had to come to a conclusion before registration that the market value of the property, dealt under the instrument of conveyance or release, has been under-valued and he should have entertained reasonable belief in this respect and also, he should have recorded such a reason. Immediately after recording such reason, he has to complete the registration and thereafter refer the instruments to the Collector in terms of Sub-Section (1) of Section 47-A of the Indian Stamp Act. Only in respect of the instruments, which have not been referred to for adjudication to the Collector under Sub-Section (1) of Section 47-A of the said Act, the Collector could exercise or invoke suo motu powers conferred on him under Sub-Section (3) of Section 47-A and had a reference been made under Section 47-A(1) of the said Act it would have been answered either way by the Collector, then it is obvious that the Collector cannot exercise suo motu powers in terms of Sub-Section (3) of Section 47-A of the said Act."
22. In 2001(2) CTC 449 (DB) - The District Collector, Erode District, Erode vs. M.Ponnusamy, the said question once again came up for consideration and a Division Bench of this Court has taken into consideration the decision reported in S.P.Padmavathi vs. The State of Tamil Nadu, [1997(II) CTC 617 (DB)] (cited supra) and held that the documents presented for registration has to be registered if it sets forth market value and registering officer has power to find out whether the market value has been correctly furnished in instrument presented for registration. In the event of the Registering Officer not accepting the valuation, he shall register the document and thereafter, he can refer the same to the Collector for adjudication. In the absence of document or material produced to show that the documents in question have been undervalued, the Registering Officer cannot decide the same and apply provisions under Section 47-A of the Indian Stamp Act without forming an independent decision.
23. In 2002(2) CTC 329 - R.Sukumaran and others vs. State of Tamil Nadu and others, the issue was in respect of stamp duty payable by the transferee from the Housing Board on the instrument executed by the Housing Board and presented for registration.
24. This Court while deciding the said case has taken into consideration the S.P.Padmavathis case reported in 1997(2) CTC 617: 1997(2) L.W. 579 and M.Ponnusamy and 42 others vs. The District Collector and others, 1999(2) L.W. 231 and the decision reported in 2001(2) CTC 449 District Collector, Erode District and others vs. M.Ponnusamy and held that , the Registrar cannot have any ground or reason or rhyme or basis or reason whatsoever to doubt about the consideration paid by the transferee to the Housing Board the transferor.
25. In 2006(4) L.W. 695 - The Sub Registrar, Adayar, Chennai vs. Canara Bank, Saidapet Branch and another, the question came up for consideration with regard to the calculation of stamp duty in respect of value of properties which were subject matter of a compromise decree as fixed and directed by the Court. This Court in the said decision, held that market value is always a changing factor depending on various circumstances and no exactitude is, in the nature of things possible and that normally the consideration stated as market value in a given instrument brought for registration should be taken to be correct unless circumstances exist which suggest fraudulent evasion.
26. In 2008-1-L.W. 743 (DB)- State of Tamil Nadu and others vs. Janab Habeeb Jan.K, the issue came up for consideration with regard to the stamp duty payable in respect of value of property in a sale deed executed by the Court pursuant to the decree for specific performance. This Court has taken into consideration the judgment reported in 1998(3) L.W. 254 Narayanaswamy Naicker vs. District Collector of Chengalpattu and others and held that in case of execution of sale deed through Court in pursuance of a decree for specific performance, demand made on the purchaser for payment of stamp duty on the basis of market value as on the date of execution and registration of the document would not be legal.
27. On a consideration of the principles laid down in those decisions, it is clear that the term market value itself is vague, uncertain and a matter of guess work. The said issue also came up for consideration in the judgment reported in 2001 Supp. CTC page.1 J.Jayalalitha and five others vs. State represented by Additional Superintendent of Police, CBCID, Chennai and this Court has held as follows:-
"The term "Market value" itself is vague, uncertain and a matter of guesswork. It is also not defined in the Indian Stamp Act. Explanation to Section 47-A of the said Act reads as follows:
"For the purpose of this Act, market value of any property shall be estimated to be the price which, in the opinion of the Collector or the Chief Controlling Revenue Authority of the High Court as the case may be, such property would have fetched or would fetch, if sold in the open market on the date of execution of the instrument of conveyance, exchange, gift, release of benami right or settlement." Author Manohar N.Dange in his book titled 'Valuation of Immovable Properties' has stated that the price that a willing purchaser pays to a willing seller for a property having due regard with its existing conditions, with all its existing advantages and with its potential possibilities when laid out with most advantageous manner, excluding any disadvantages due to the carrying out of the scheme for the purpose for which the property is transacted and this relates how the market value applies to the valuation for compulsory purchases. He has quoted the judgment rendered by Justice Eve in South Eastern Rail Company v. L.C.C., that the value to be ascertained is the value to the vendor, and not its value to the purchaser and that in fixing the value to the vendor all restrictions imposed on the user and enjoyment of the land in his hand are to be taken into account but the possibility of such restrictions being modified or removed for his benefit is not to be overlooked and that the market price is not a conclusive test of real value. According to the author, the concept of market value has to be understood in the light of what has been explained for the purpose of land acquisition and that the market value of a property may be different in practice for different angles. According to him, the market vaue for a purpose is to be decided with due relations to laws and purpose of the concerned valuer and the market value, though appears to be a very simple term, is very difficult to decide under particular circumstances. He went on to add that a proper research is necessary which could determine the market value since in one case, there can be heavy demand for smaller tenements with inadequate supply and in another case, the supply may be more than adequate but without any demand. According to the author, the size of the plot has got a direct bearing on the willing purchasers in the market. The market value of a land can be fixed only by taking into consideration several factors, like potentiality of a plot for development, shape of the plot, frontage and depth, modification for depth, value in the sense of value of additional cost less depreciation and the most important factors which a valuer should study in respect of a property are (1) advantages to the property and (2) disadvantages to the property.
J.A.Parks in his book, 'Principles and Practice of Valuation' (Fifth Edition by D.N.Banerjee) by referring to the judgment of the Supreme Court of British Columbia (Canada) in Rowan v. City of Vancouver, wherein it was held that "a recent market price is not the best test of actual value. The whole evidence surrounding the transaction, the condition of market and other factors have to be weighed carefully", stated that valuation of immovable property is not an exact science and it is an inquiry relating to a subject abounding in uncertainties where there is more than ordinary guesswork and where it would be unfair to require an exact exposition of reasons for the conclusions arrived at. He has relied on the judgment of this Court in Velayudam Chettiar v. Special Tahsildar, 1959 (1) MLJ 348 and on the judgment of Allahabad High Court rendered in Chand Kiran Tyagi v. State of U.P., 1994 (24) ALR 196. The question of fair compensation is not an algebraic problem which would be solved by an abstract formula as there is room for interference and inclinations of opinion which being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others and it is not fair to require an exact exposition of reason for the conclusions arrived at. The learned author has relied on the observations of Bhagwati, J., as he then was, in Administrator-General W.B. v. Collector, 1988 (2) SCC 150. Bhagwati, J., observed in the above judgment as follows:
"We are conscious that this process of determination of market value adopted by us may savour of conjecture or guess, but the estimation of market value in many cases must depend largely on evaluation of many imponderables and hence, it must necessarily be to some extent a matter of conjecture or guess."
The author has also relied on the observations of the Supreme Court in Prithvi Raj Taneja v. State of M.P., 1977 (1) SCC 694, wherein the Supreme Court held that there is an element of guesswork inherent in most cases involving determination of the market value.
In G.Loganathan v. S.Chenniya Chettiar, 1995 (2) CTC 492, this Court observed that the Supreme Court and other courts including Madras High Court have held that guideline value is not market value and it will be dangerous to value a property according to the guideine value because there is no guarantee of truth or correctness of the data given in the guideline value. The learned Judge also relied on the judgment of the Supreme Court rendered in Land Acquisition Officer v. Jasti Rohini, 1995(1) SCC 717 wherein it was held that the valuation register on the basis of the notification under Section 47-A of the Stamp Act is for collection of revenue and it cannot be the basis for determination of the market value of the land. It was further held, that from the decisions, it is clear that the guideline value cannot be the market value of the property as the guideline value is intended for the collection of revenue and market value is the criteria to value the suit.
When we consider the above principles, it is clear that guideline and market value are two different concepts and that the term "Market value" is vague, uncertain and a matter of guesswork. The market value, in my view, does not lie in the property contemplated to be purchased but lies in the mind of the person contemmplating to purchase the said property. From the discussion made above, it could be seen that guideline value and market value being two different concepts, the trial Judge was not justified in taking the market value for arriving at the conclusion that there was a loss, since Explanation to Section 47-A of the Stamp Act, which has been extracted above, states that the market value will be the price the property would have fetched in open market."
The said judgment has also been confirmed by the Hon'ble Supreme Court of India in 2004(2) SCC page 9 - R.Saibharathi vs. J.Jayalalitha and others.
28. A perusal of the impugned order and the counter affidavit filed by the second and third respondents would reveal that the documents have already been registered and in pursuant to objections raised by the Local Audit in its reports 3/99 and 6/99 respectively, demand of additional stamp duty was made on the basis of the market value on the date of the registration of the sale deed. No doubt sub-section 3 of Section 47-A clothe the Collector the suo motu power within 5 years from the date of registration of the any instrument of conveyance etc., not already referred to him under sub-section (1) of Section 47-A to call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject matter of the conveyance etc.,and the duty payable thereon and if after such examination, has reason to believe that the market value of the property has not been truly set forth in the instrument, he may determine the market value of the said property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2) of Section 47-A of the Indian Stamp Act and the difference, if any, in the amount of duty, shall be payable by the persons liable to pay the duty. In the case on hand, a perusal of the impugned orders would reveal that the appellants herein has failed to take into consideration any material nor any material was placed before them to arrive at a conclusion that the market value of the property conveyed to the allottees under the respective deeds of sale has not been truly set forth and that no reasons have been recorded that the allottees had fraudulently evaded the payment of stamp duty.
29. This Court in the judgment reported in 2008 (5) CTC - page 239 - A.J.Mapillai Mohadeen v. The Sub-Registrar, Registration Department, has considered the issue in respect of the value fixed by the Public Authority in a public auction sale. While deciding the said case, this Court has taken into consideration, the judgment reported in 2008(4) SCC 720 Government of Andhra Pradesh vs. P.Laxmidevi, 2002(2) CTC 329 R.Sukumaran vs. State of Tamil Nadu, 1997 (2) CTC 617 S.P.Padmavathy vs. State of Tamil Nadu and the latest decision of the Honble Supreme Court of India reported in 2008(1) CTC page 6 State of Rajasthan vs. Khandaka Jain jewellers, has held that unless there is an under valuation of the subject matter with fraudulent intention to evade proper payment of stamp duty, the respondents cannot impose such a heavy stamp duty on the petitioner with regard to the document in question and hence, the value fixed by the Public Authority in the Public auction cannot be doubted after reference under Section 47-A (1). The said case pertaining to the sale of the assets by the Tamil Nadu Industrial Investment Corporation which was taken possession in exercise of powers under Section 29 of the State Financial Corporations Act and the payment of the stamp duty in respect of such sale. This Court has ultimately held in the said decision that the market value stated in the instrument brought for registration should be taken to be correct and that value cannot be doubted or disbelieved.
30. This Court taking into consideration that the allotment of plots were made in the year 1985, and that the sale deeds have been registered in the year 1999, 2000 and 2001, and no reason has been stated by the authority with regard to the fraudulent evasion of stamp duty payable on instruments, and in the light of the principles laid down in the above said decisions, is of the view, there is no illegality or error apparent on the face of the record in the impugned orders allowing the writ petitions.
31. In the result, all the writ appeals are dismissed and the orders passed in the writ petitions are confirmed. But in the circumstances, there will be no order as to costs. Consequently, Miscellaneous Petitions are closed.
(D.M.J) (M.S.N.J) 07.01.2009.
Index:Yes/No Internet:Yes/No gr.
D.MURUGESAN, J and M.SATHYANARAYANAN,J PRE DELIVERY COMMON JUDGMENT IN Writ Appeal Nos.2607 to 2030, 2708 to 2713, 3179 to 3193, 2455 to 2469 of 2003 & 2345 to 2359 & 3373 to 3380 of 2004 & 1236 to 1240 of 2005.
07.01.2009