Fullertion India Credit Company Ltd. v. State of Maharashtra
2016-10-07
A.M.KHANWILKAR, T.S.THAKUR
body2016
DigiLaw.ai
ORDER : The gravamen of the challenge in these matters is to the impugned amendments to the Maharashtra Stamp Act, 1958 vide Sections 10D and 30A, imposing unreasonable and impracticable duties/obligations on the Banks and Financial Institutions. 2. During the previous hearing, learned counsel appearing for the Banks and Financial Institutions, in all fairness, submitted that their clients were not opposed to taking the responsibility of collection of the stamp duty, but cannot be fastened with the additional duties/obligations as predicated in the impugned enactment. In the backdrop of the stand taken by the Banks and Financial Institutions, the State Authorities were asked to examine the suggestions given by the Financial Institutions and to work out an arrangement or devise which may facilitate collection of proper stamp duty on the concerned document/instruments. Accordingly, a joint meeting of the representatives of the banks and financial institutions and of the officials of the State was convened in which it has been agreed in principle between the parties that, by way of an interim arrangement during the pendency of these matters, the banks and financial institutions may presently levy and collect stamp duty in respect of documents/instruments presented for registration henceforth to give effect to Section 30A of the Maharashtra Stamp Act. 3. It is agreed in the joint meeting convened on 23rd September 2016 that, the implementation of Section 30A of the Act will be confined only to documents/instruments in which bank is a party or which create a right in favour of a bank. The banks must and would ensure that proper stamp duty is paid in respect of such document/instrument as specified in the Notification. To facilitate the banks to discharge that obligation, the respondent-State has agreed to provide a software for calculating the stamp duty commensurate with the provisions of the Stamp Act and which can be paid by the Banks and Financial Institutions through Government Receipt Accounting System (GRAS) online, credited in the State Treasury. However, the Department would require some more time to roll out that software. The proposed software will incorporate necessary features keeping in mind the provisions of the Stamp Act to facilitate calculation of proper Stamp Duty. The responsibility of the bank will be limited to ensuring proper selection of type of document; and accuracy of the information to be furnished in that behalf in the software.
The proposed software will incorporate necessary features keeping in mind the provisions of the Stamp Act to facilitate calculation of proper Stamp Duty. The responsibility of the bank will be limited to ensuring proper selection of type of document; and accuracy of the information to be furnished in that behalf in the software. The Bank/Financial Institution shall not be responsible for any inaccuracy in the calculation of the amount of stamp duty done by the software. It is also agreed that the use of software will be optional. On this understanding, the Banks and Financial Institutions have assured the discharge of their obligation to levy and collect proper stamp duty in respect of prospective documents/instruments henceforth. 4. As regards the documents/instruments which have already been executed in the past in which bank is a party or which create a right in favour, it is agreed in the joint meeting that the banks may discharge their obligation under Section 10D of the Act after the software as aforementioned is provided by the respondent State for calculating proper stamp duty payable under the Stamp Act. It is assured by the State that the software will provide a feature for uploading of the scanned document/instrument to facilitate the banks/financial institutions to comply with their obligation. As soon as the software is made available, the banks would ensure that proper stamp duty is paid through GRAS in respect of such instruments, as would be calculated by the software. 5. It is common ground that there are a large number of such old documents/instruments to be processed by the banks and financial institutions. For that, it has been agreed by the respondent State that the processing of such old documents/instruments can commence immediately after the software is rolled out by the department and is made available to the concerned banks and financial institutions. Further, to begin with, the processing of documents/instruments involving high value of more than Rupees Ten Crores be taken up on priority basis and completed within six weeks therefrom. In the next phase, the documents/instruments valuing less than Rupees Ten Crores but more than Rupees Five Crores can be targeted and processed. The time frame within which those documents are to be processed can be specified on the basis of experience gained from the processing of documents involving high value of over Rupees Ten Crores, taken up in the first phase.
The time frame within which those documents are to be processed can be specified on the basis of experience gained from the processing of documents involving high value of over Rupees Ten Crores, taken up in the first phase. In the next phase, documents/instruments on reducing value as may be specified can be taken up for processing in the same manner. 6. In either case, namely prospective documents or old documents, the liability of banks/financial institutions would be to ensure proper selection of the type of document indicated in the software and pay the amount through GRAS online, as calculated by the software. The Banks/Financial Institutions will not be responsible for the inaccuracy in the calculation done by the software. Further, in case the stamp duty has been paid on the concerned document/instrument (as displayed in the software), the bank shall not be responsible for its inaccuracy. This arrangement would apply to six types of documents referred to in the software and only such documents would be presently covered within the ambit of Section 10D, subject to modification by way of a Notification to be issued by the competent Authority from time to time. 7. It is also agreed that GRAS online payment, verification, defacement and certification as provided in Section 10D would be required only for the principal document. That would be sufficient compliance for the purpose of implementing Section 10D. Further, defacing of the challan (marking/flagging the challan that it has been used) is to be done only electronically in the system and not in physical mode. This obligation of the banks/financial institutions will commence immediately after the software is made ready by the State Authority and is rolled out. 8. Indeed, the aforementioned arrangement agreed upon between the parties is only by way of an interim arrangement and without prejudice to their rights and contentions in the pending matters. 9. The petitioners have also raised two other issues in respect of which direction is sought from this Court. Firstly, the threshold limit for GRAS online payment in respect of documents/instruments in excess of amount as may be specified. The petitioner has suggested that the minimum threshold limit of Rupees One Thousand or Rupees Five Hundred be specified for GRAS online payment and other modes of payments can be pursued for smaller amount. The respondent State has no objection to specify such threshold limit.
The petitioner has suggested that the minimum threshold limit of Rupees One Thousand or Rupees Five Hundred be specified for GRAS online payment and other modes of payments can be pursued for smaller amount. The respondent State has no objection to specify such threshold limit. Accordingly, we accept the suggestion given by the petitioner that the threshold limit of payment through GRAS online is specified as Rupees Five Hundred and above. 10. The second issue in respect of which direction is sought by the petitioners is whether a verification certificate number generated by the system on defacement of challan would be sufficient certification for the purposes of Section 10D(3). According to the petitioners, when a challan is defaced the software generates a verification certificate. Thus, mentioning of such certificate number on the instrument should be considered sufficient compliance of certification (instead of the need to preserve the certificate or to create documentation), for the purposes of Section 10D(3). The State Government may consider this aspect and take an appropriate decision in that behalf as may be advised, keeping in mind that certification is a statutory requirement. That decision be taken by the State Government before rolling out the software and making it available to the banks/financial institutions for further compliance. 11. The parties have agreed to abide by the above-mentioned arrangement during the pendency of these petitions before this Court. We accept the assurance given by them in that behalf. 12. No coercive steps be taken against the petitioners or their employees until further orders, if the above arrangement is strictly adhered to. 13. For the time being, we defer the hearing of these matters for eight weeks.