Research › Search › Judgment

Karnataka High Court · body

2006 DIGILAW 651 (KAR)

M. Ramachandra v. Deputy Commissioner

2006-08-09

D.V.SHYLENDRA KUMAR

body2006
ORDER D.V. Shylendra Kumar, J.—Writ petition is by a person, who claims to have purchased certain properties under two sale deeds dated 30.3.2001 executed by the Krishnarajapuram Rural House Building Co-operative Society Ltd., Krishnarajapuram, Bangalore East Taluk. 2. It is the version of the petitioner that the petitioner is a member of the Society and the sale deeds have been executed pursuant to allotment of two sites/lands in favour of the petitioner. The sale deeds it appears had been presented for registration before the 2nd respondent - The Sub Registrar, K.R. Puram, Bangalore, on 2.4.2001. Though the registration procedure was over it appears it was immediately followed by a notice issued by the 1st respondent - the Deputy Commissioner and Deputy Registrar (DUS), under the provisions of Section 45-A of the Karnataka Stamp Act, 1957, (hereinafter referred to as 'the Act') inter alia indicating that the valuation as had been disclosed in the instrument was not proper, that stamp duty paid on the instrument was deficient and difference was sought to be recovered etc. 3. Petitioner had filed his objections pointing out that the conveyance deeds in question being executed by the Cooperative Society in favour of its members, stamp duty payable in respect of such an instrument was on the value as indicated in the conveyance deeds and on the value which was paid and that the Society has to convey proper title and the stamp duty payable even in terms of the provisions of the Karnataka Stamp Act, particularly under Article 20 for conveyance being governed by the proviso to this Article, liability is on the part of the petitioner to pay the stamp duty as indicated in the instrument and not on the market value as was proposed in the notice. Article 20(1) in the schedule to the Act, as it stood at the relevant time reads as under: Art. Description of Proper stamp-duty No. Instrument 20. [(1)] Conveyance, as defined by Clause (d) of Section 2, not being a transfer charged or exempted under No. 52, where the market value of the property which is the subject matter of Conveyance, - Does not exceed Rs. 50... 5.00 Where it exceeds Rs. 50 but does not exceed Rs. 100 …10.00 Where it exceeds Rs. 100 but does not exceed Rs. 200;... 20.00 Where it exceeds Rs. 200 but does not exceed Rs. 300;...30.00 Where it exceeds Rs. 50... 5.00 Where it exceeds Rs. 50 but does not exceed Rs. 100 …10.00 Where it exceeds Rs. 100 but does not exceed Rs. 200;... 20.00 Where it exceeds Rs. 200 but does not exceed Rs. 300;...30.00 Where it exceeds Rs. 300 but does not exceed Rs. 400;...40.00 Where it exceeds Rs. 400 but does not exceed Rs. 500;... 50.00 Where it exceeds Rs. 500 but does not exceed Rs. 600;...60.00 Where it exceeds Rs. 600 but does not exceed Rs. 700;...70.00 Where it exceeds Rs. 700 but does not exceed Rs. 800;... 80.00 Where it exceeds Rs. 800 but does not exceed Rs. 900;... 90.00 Where it exceeds Rs. 900 but does not exceed Rs. 1,000;...100.00 And for every Rs. 500 or part thereof in excess of Rs. 1,000...50.00] [Provided that in respect of any instrument of conveyance effected by the house building co-operative societies, registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959) in so far as it relates to allotment of buildings or sites to their members, the duty shall be payable at the rates specified above on the amount or value of consideration for such conveyance as set forth in the instrument.] [Provided further that in any case where a lease-cum-sale agreement is executed and is stamped with the ad valorem stamp required for such agreement under item (d) of Article 5 and in furtherance of such agreement a conveyance is subsequently executed, the duty on such conveyance shall not exceed rupees ten or the difference of the duty payable on such conveyance and the duty already collected on the security deposit under item (d) of Article 5, whichever is greater.] XXX XXX XXX XXX XXX XXX 4. It appears the matter had not progressed and it had necessitated the petitioner for filing W.P. No. 35701/2001 praying for expeditious disposal of the matter and the petition was ordered on 2nd March 2006 directing the authority to dispose of the proceedings under Section 45-A of the Act within a period of one month from the date of receipt of a copy of the order, vide Annexure-C. It is thereafter the 1st respondent has passed the impugned orders dated 3.4.2006 vide Annexures-H and J. Under the impugned orders the Deputy Commissioner has rejected the contentions urged and has taken the view that the petitioner is not entitled to claim the benefit of the proviso and was required to pay stamp duty on the market value of the property conveyed under the instrument and having called upon the petitioner to pay the differential stamp duty, the present writ petition. 5. Submission of Sri. Vijayashankar, learned Sr. Counsel appearing for the petitioner is that by drawing attention to the provisions of Article 20 and Schedule I of the Karnataka Stamp Act, 1957, is that the situation is governed by the proviso to Article 20 which was in vogue from 1.4.1994 to 1.4.2001; that the instrument having been executed as on 30.3.2001 the situation was one still governed under the proviso; that an amendment to the provisions which has come into effect on and after 1.4.2001 which is one of deleting the proviso cannot have any bearing on the transaction or the amount of duty payable on the instrument and therefore the Deputy Commissioner was wrong in concluding that the petitioner was required to pay stamp duty on the market value of the property in question. 6. Learned Sr. Counsel submits that though Section 45-A(5) of the Act itself provides for a statutory appeal, the appeal remedy is not an efficacious remedy as the availment of the appeal remedy is made subject to the condition that the appellant has to deposit 50% of the difference in the amount of duty as determined by the Deputy Commissioner for availing the remedy of appeal which provision has come into force w.e.f 18.8.1999 and the petitioner being asked to pay 50% demand duty though the petitioner is not liable to pay any amount, it is an onerous condition and therefore the appeal remedy is not an efficacious remedy. In support of the submission the learned Counsel has relied upon a decision of the Supreme Court in the case of Filterco and Another Vs. Commissioner of Sales Tax, Madhya Pradesh and Another, AIR 1986 SC 626 particularly paragraph 11 which reads as under: 11. We are of opinion that the High Court should have examined the merits of the case instead of dismissing the writ petition in limine in the manner it has done. The order passed by the Commissioner of Sales Tax was clearly binding on the assessing authority under Section 42B(2) and although technically it would have been open to the appellants to urge their contentions before the appellate authority namely, the Appellate Assistant Commissioner, that would be a mere exercise in futility when a superior officer namely, the Commissioner, has already passed a well considered order in the exercise of his statutory jurisdiction under Sub-section (1) of Section 42-B of the Act holding that 21 varieties of the compressed woollen felt manufactured by the appellants ore not eligible for exemption under Entry 6 of Schedule I of the Act. Further Section 38(3) of the Act requires that a substantial portion of the tax has to be deposited before an appeal or revision can be filed. In such circumstances we consider that the High Court ought to have considered and pronounced upon the merits of the contentions raised by the parties and the summary dismissal of the writ petition was not justified. In such a situation, although we would have, ordinarily, set aside the judgment of the High Court and remitted the case to that Court for fresh disposal, we consider that in the present case it would be in the interests of both sides to have the matter finally decided by this Court at the present stage itself especially since we have had the benefit of elaborate and learned arguments addressed by the counsel appearing on both sides. 7. Stamp duty payable under the Act is pursuant to the charging section i.e. Section 3 which relegates the rate of duty to the schedule, depending upon the nature of the transaction or the nature of the instrument that is sought to be registered. 7. Stamp duty payable under the Act is pursuant to the charging section i.e. Section 3 which relegates the rate of duty to the schedule, depending upon the nature of the transaction or the nature of the instrument that is sought to be registered. No doubt a distinction has been made in respect of the conveyance deeds executed in general and those executed by a Housing Cooperative Society in favour of its members in the matter of payment of stamp duty, particularly by way of relaxation on the duty that is payable. If one were to examine the liability for payment of stamp duty at a point of time when the proviso to Article 20 was still available, it is undoubtedly not the same duty as is payable on any other instrument in the nature of conveyance, but only on the basis of the value as indicated in the instrument itself subject to the requirements enumerated in the proviso to article, themselves are complied or has been satisfied i.e. it is dependent on satisfying the requirements enumerated in the proviso to Article 20(1) which are as under: [Provided that in respect of any instrument of conveyance effected by the house building co-operative societies, registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959) in so far as it relates to allotment of buildings or sites to their members, the duty shall be payable at the rates specified above on the amount or value of consideration for such conveyance as set forth in the instrument.] [Provided further that in any case where a lease-cum-sale agreement is executed and is stamped with the ad valorem stamp required for such agreement under item (d) of Article 5 and in furtherance of such agreement a conveyance is subsequently executed, the duty on such conveyance shall not exceed rupees ten or the difference of the duty payable on such conveyance and the duty already collected on the security deposit under item (d) of Article 5, whichever is greater.] 8. It is the submission of Sri. Vijaya Shankar, learned Counsel that these conditions are satisfied and therefore the stamp duty as had been paid by the petitioner on the two instruments was proper. It is the submission of Sri. Vijaya Shankar, learned Counsel that these conditions are satisfied and therefore the stamp duty as had been paid by the petitioner on the two instruments was proper. But the Deputy Commissioner thinks otherwise and the finding by the Deputy Commissioner is that on facts the petitioner does not quality the benefit available under the proviso to Article 20. It is not necessary for this Court to examine this dispute in writ jurisdiction as I find that the petitioner has a remedy of appeal under Section 45-A(5) of the Act, where such disputed facts can be examined. 9. The authority has also recorded a finding that it is not a case where the petitioner could have availed the benefit of the proviso to Article 20. The authority has indicated several reasons as enumerated in paragraph 7 of the impugned order and in fact has doubted whether the transaction was a bona fide transaction of one of an allotment of house site to a member by a Housing Co-operative Society for the purpose of construction of a house. The authority is of the view that it is not one such case but some existing building in the nature of a theatre, which was the subject matter of the instruments etc. 10. Assuming for arguments sake that the appeal remedy is not an efficacious one, I do not find it expedient to examine such disputed questions in writ jurisdiction, particularly as to whether the petitioner was entitled for the benefit of the proviso to Article 20 as it stood at the relevant time. 11. The further question as to whether the duty was payable on the date of the presentation of the instrument which is 2.4.2001 or whether it was presented earlier as is sought to be contended on behalf of the petitioner and if so what could be the legal position, are all not fit matters for investigation in this writ petition as even the basic contention of the petitioner that he fulfills the requirement to attract the proviso to Article 20(1) of the schedule to the Act has been negatived by the very authority and until and unless this finding is got over by the petitioner, I do not find any scope for the petitioner to urge the further legal contentions based on which relief can be sought. 12. 12. It is for this reason I do not find it necessary to examine such questions in the exercise of writ jurisdiction but would relegate the petitioner to avail of the available statutory remedy for redressal of his grievance. 13. Petition is rejected.