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2018 DIGILAW 1809 (ALL)

Lal Bahadur Shastri, Sahkari Awas Samiti Ltd. v. Commissioner, Kanpur Division

2018-08-16

SALIL KUMAR RAI

body2018
JUDGMENT : 1. The petitioner - Sri Lal Bahadur Shastri, Sahkari Awas Samiti Ltd. is a co-operative housing society and a lease deed dated 20.7.1991 was executed by it in favour of one Sri Pramod Kumar Pal, who was a member of the society. The lease was for a period of 999 years and for a premium of Rs.12,500/-and annual rent of Rs.500/-. The area of the plot was 1250 sq. ft. Subsequently, the aforesaid Sri Pramod Kumar Pal, through a deed dated 24.2.1997, surrendered the aforesaid lease in favour of the housing society. Stamp duty of Rs.1,850/-was paid on the same. However, the Assistant Collector (Stamp), District Etawah i.e. respondent no. 2 through his order dated 27.6.2001 held that there was a deficiency of Rs.10,650/-in payment of stamp duty on the aforesaid deed dated 24.2.1997. The aforesaid deficiency was determined treating the deed dated 24.2.1997 as a conveyance and charging the stamp duty on the market value of the property under Article 23, Schedule 1-B of Indian Stamp Act, 1899 (hereinafter referred to as, 'Act, 1899'). The order dated 27.6.2001 passed by the Assistant Collector (Stamp), District Etawah was challenged by the petitioner under Section 56 of the Act, 1899 through Revision No. 252 of 2002 which was dismissed by the Additional Commissioner, Kanpur Division, Kanpur i.e. respondent no. 1 vide her order dated 28.2.2002. The orders dated 27.6.2001 and 28.8.2002 have been challenged in the present writ petition. 2. The contention of the petitioner is that the instrument dated 24.2.1997 related to surrender of lease in favour of the petitioner and therefore under Article 61 (b) of Schedule 1-B of the Act, 1899, as it was in 1997, the stamp duty liable to be paid on the aforesaid deed was the same as a conveyance for a consideration of Rs.500/-i.e. the petitioner was liable to pay a stamp duty of only Rs.62.50/-and the respondent authorities had committed an error of law apparent on the face of record in determining the deficiency in payment of stamp duty treating the deed to be a conveyance under Article 23 read with Section 2(10) of the Act, 1899. It has been argued by the counsel for the petitioner that for the aforesaid reasons, the orders dated 27.6.2001 and 28.8.2002 are illegal and contrary to law and liable to be set-aside by this Court. 3. It has been argued by the counsel for the petitioner that for the aforesaid reasons, the orders dated 27.6.2001 and 28.8.2002 are illegal and contrary to law and liable to be set-aside by this Court. 3. I have considered the submissions of counsel for the petitioner and perused the relevant statutory provisions of Article 61 of Schedule 1-B of the Act, 1899 as it existed in 1997 and Article 23, which are quoted below: 61. SURRENDER OF LEASE-[(a) when the duty with which the lease is chargeable does not exceed [the duty chargeable on a conveyance for a consideration of Rs. 500] The duty with which such lease is chargeable. (b) In any other case Exemption Surrender of lease, when such lease is exempted from duty. The same duty as a conveyance (No. 23) for a consideration of Rs. 500]. [23. CONVEYANCE [as defined by Section 2(10) not being a TRANSFER charged or exempted under No. 62- [Where the amount or value of the consideration of such conveyance as set forth therein or the market value of the property which is the subject of such conveyance, whichever is greater, does not exceed Rs. 50. Where it exceeds Rs. 50 but does not exceed Rs. 100 Where it exceeds Rs. 100 but does not exceed Rs. 200 Where it exceeds Rs. 200 but does not exceed Rs. 300 Where it exceeds Rs. 300 but does not exceed Rs. 400 Where it exceeds Rs. 400 but does not exceed Rs. 500 Where it exceeds Rs. 500 but does not exceed Rs. 600 Where it exceeds Rs. 600 but does not exceed Rs. 700 Where it exceeds Rs. 700 but does not exceed Rs. 800 Where it exceeds Rs. 800 but does not exceed Rs. 900 Where it exceeds Rs. 900 but does not exceed Rs. 1,000 And for every Rs. 500 or part thereof in excess of Rs. 1,000 Exemption Assignment of copyright in musical works by resident of, or first published in India]. Co-partnership Deed - [See Partnership (No. 56)]. Rs. P. [6.25 12.50 25.00 37.50 50.00 62.50 75.00 87.50 100.00 112.50 125.00 62.50] 4. A perusal of the aforesaid provisions clearly show that the petitioner was liable to pay stamp duty under Article 61(b) and reference to Article 23 in Article 61 was merely to calculate the stamp duty to be paid on an instrument included in Article 61. Rs. P. [6.25 12.50 25.00 37.50 50.00 62.50 75.00 87.50 100.00 112.50 125.00 62.50] 4. A perusal of the aforesaid provisions clearly show that the petitioner was liable to pay stamp duty under Article 61(b) and reference to Article 23 in Article 61 was merely to calculate the stamp duty to be paid on an instrument included in Article 61. The deed dated 24.2.1997 was not a conveyance under Section 2(10) of the Act, 1899 in view of the fact that it was specifically provided in Article 61 of Schedule 1-B. Therefore the stamp duty liable to be paid on it could not have been determined on the market value of the property under Article 23 of Act, 1899. In view of the aforesaid, the orders dated 27.6.2001 and 28.8.2002 are contrary to law and liable to be set-aside. 5. The writ petition is allowed. The orders dated 27.6.2001 and 28.8.2002 are, hereby, quashed. 6. The excess amount paid by the petitioner in pursuance to the order dated 27.6.2001 shall be refunded to the petitioner with simple interest calculated at the rate of 8% per-annum.