Century Comforts Pvt. Ltd. , rep. By Its Managing Director, Sri. K. Balakrishna Shenoy v. State Of Karnataka
2018-09-14
R.DEVDAS
body2018
DigiLaw.ai
ORDER: R. DEVDAS, J. The petitioner is a Company registered under the Companies Act, established for the purpose of establishing Hotel industry. The petitioner is before this Court being aggrieved by the denial of exemption in payment of Stamp Duty, which was promised by the respondent-State Government. 2. Sri. Ajit A Shetty learned counsel appearing for the petitioner submits that the respondent-State Government, in its Tourism policy, published from time to time has given incentives and tax concession for establishment of hotels which would promote Tourism in the State Government. The department of Tourism by its order No.KaSamVaPra/231 PravaYo/2007, Bangalore, dated 20.10.2009 proposed to prepare the Karnataka Tourism Policy 2009-14 and to implement the policy along with concession and incentives mentioned in the said policy for the period of 5 years starting from 20.10.2009 to 19.10.2014. Learned counsel points out that it was made clear in the Notification that the facilities and concessions given under the provisions of the industrial policy 2009-14, will be in force coterminous with the said policy with respect of projects related to tourism. 3. The petitioner submitted its project for putting up of a Hotel at Moodanidambur village, Udupi Taluk and Udupi District in terms of the Tourism policy. On 13.04.2010, the project was approved by issuing project approval order. In order to establish the project, the petitioner was required to acquire lands for the purpose of establishment of a Hotel. Accordingly, the petitioner purchased about 9700 square feet of built up area in a commercial building named ‘Aroor Arcade’ along with the undivided interest in the land on which the building was constructed. The sale deed dated 28.12.2010 was presented for registration before the Sub-Registrar, Udupi, on 28.12.2010. 4. The learned counsel submits that the petitioner was entitled for 75% rebate on the Stamp Duty in terms of concession provided in the Karnataka Tourism Policy 2009-14. Annexure-IV of the Tourism policy is extracted hereunder: ANNEXURE IV “Concessional Registration Charges MSME, Large and Mega Projects: For all loan documents and sale deeds as specified in as specified below the registration charges shall be at a consessional rate of Re.1 per Rs.1000. Exemption from Stamp Duty MSME, Large and Mega Projects: Stamp Duty to be paid in respect of (i) loan agreements, credit deeds, mortgage and hypothecation deeds executed for availing term loans from State Govt.
Exemption from Stamp Duty MSME, Large and Mega Projects: Stamp Duty to be paid in respect of (i) loan agreements, credit deeds, mortgage and hypothecation deeds executed for availing term loans from State Govt. and/or State Financial Corporation, Industrial Investment Development Corporation, National Level Financial Institutions, Commercial Banks, RRBs, Cooperative Banks, KVIB/KVIC, Karnataka State SC/ST Development Corporation, Karnataka State Minority Development Corporation and other institutions which may be notified by the Government from time to time for the initial period of five years only and (ii) for lease deeds, lease cum sale and absolute sale deeds executed by industrial enterprises in respect of industrial plots, sheds, industrial tenements, by KIADB, KSSIDC, KEONICS, KSIIDC, Industrial Cooperatives and approved private industrial estates shall be exempted as below: Zone 1 100% Zone 2 100% Zone 3 75% Zone 4 Nil” Since the petitioner falls under Zone 3, it was entitled for 75% for concessional registration charges and exemption from payment of Stamp Duty. 5. The Sub-Registrar, Udupi, suspended the registration on the ground that there was deficit Stamp Duty and referred the matter to the District Registrar. The District Registrar issued a notice on 10.01.2011 and directed the petitioner to pay the deficit Stamp Duty of Rs.3,46,338/. 6. The learned counsel submits that since the petitioner had availed financial assistance from the Nationalized Bank, it could not afford to contest the matter and wait till the adjudication, as the bank required the petitioner to submit the original sale deed. It is submitted that under these circumstances, the petitioner paid the deficit stamp duty under protest and reserved the liberty to claim refund of 75% of the stamp duty. Annexure-F is the letter dated 24.06.2011 written by the petitioner to the District Registrar and Deputy Commissioner of Stamps, Udupi. The letter dated 24.06.2011 makes it clear that the petitioner was confronted with another notification dated 29.03.2011, which was issued by the Revenue Department (Stamps and Registration). As per the notification dated 29.03.2011, exemptions were granted under the Karnataka Tourism Policy and the concession given on Stamp Duty and registration charges is for the period starting from 01.04.2011 to 31.03.2014. 7.
As per the notification dated 29.03.2011, exemptions were granted under the Karnataka Tourism Policy and the concession given on Stamp Duty and registration charges is for the period starting from 01.04.2011 to 31.03.2014. 7. It was pointed out by the learned Counsel for the petitioner that the Department of Stamps and Registration has given concession for payment of Stamp Duty and registration only between 01.04.2011 and 31.03.2014, whereas the sale deed which was presented by the petitioner for registration was dated 28.12.2010 and therefore, the claim for concession was rejected. 8. Learned counsel for the petitioner submits that the respondents are guilty of holding out a promise and varying the terms and conditions to the detriment of the petitioner and therefore, he seeks intervention of this Court by invoking extraordinary writ jurisdiction. 9. Learned counsel has relied upon two judgments of the Hon’ble Supreme Court, in the case of Pawan Alloys & Casting Pvt. Ltd., Meerut Vs. U.P. State Electricity Board and others reported in (1997) 7 SCC 251 and State of Orissa and others Vs. Mangalam Timber Products Ltd., reported in (2004)1 SCC 139 . 10. Attention of this Court is drawn to the relevant paragraph 11 and in the latter part of the paragraph, wherein their Lordships have held that: “11. Suffice it to say at this stage that if a statutory authority or an executive authority of the State functioning on behalf of the State in exercise of its legally permissible powers, has held out any promise to a party who relying on the same has changed its position not necessarily to its detriment and if this promise does not offend any provision of law or does not fetter any legislative or quasi legislative power inhering in the promisor then on the principle of promissory estoppel the promisor can be pinned down to the promise offered by it by way of representation containing such promise for the benefit of the promisee.” 11. In the latter part of the paragraph No.57, their Lordships have also held that: “57.
In the latter part of the paragraph No.57, their Lordships have also held that: “57. The respondent i.e. U.P. State Electricity Board neither expressly nor impliedly agreed that the Board will have absolute power and discretion to withdraw this incentive of development rebate at any time prior to the expiry of three years for which it was guaranteed to them by the earlier representation held out by the Board and in favour of the appellants.” 12. Similarly, in the case of Mangalam Timber Products Ltd, (supra), it was held that: “To attract the applicability of the principle of estoppel it is not necessary that there must be a contract in writing entered into between the parties. 13. In that case, it was further held that: “The State cannot take advantage of its own omission. The State Government having persuaded the respondent to establish an industry and respondent having acted on the solemn promise of the state Government, purchased the raw material at a fixed price and also sold its products by pricing the same taking into consideration the price of raw material fixed by the State Government and supplied, the State Government cannot be permitted to revise the terms for supply of raw material adversely to the interest of the respondent and effective from a back date and place the respondent in a situation which it will not be able to resolve.” 14. There is sufficient force in the submissions made by the learned counsel for the petitioner. The petitioner was called upon to establish a Hotel under the Tourism policy of the State Government. The Tourism policy and the order made in the Tourism policy provides that the concession and incentives can be availed by the persons who establish the Hotels in terms of the Tourism policy for a period of five years starting from 20.10.2009 to 19.10.2014. The approval granted on 13.04.2010 to the petitioner was well within the period stated in the order dated 20.10.2009. The petitioner having acted in terms of the promise held out by the respondents, the subsequent notification issued by the Department of Revenue fixing the period as 01.04.2011 to 31.03.2014, is clearly detrimental to the interest of the petitioner.
The approval granted on 13.04.2010 to the petitioner was well within the period stated in the order dated 20.10.2009. The petitioner having acted in terms of the promise held out by the respondents, the subsequent notification issued by the Department of Revenue fixing the period as 01.04.2011 to 31.03.2014, is clearly detrimental to the interest of the petitioner. The non-coordination between the Department of Tourism and Department of Revenue, which gave rise to the anomalous situation cannot and will not enable the State Government to take a stand that is detrimental to the person who has acted on the promise held out by the State Government. 15. In the light of the discussions above, this Court is of the opinion that the petitioner is entitled for refund of 75% stamp duty that was paid under protest. Though the petitioner has sought for quashment of the notification dated 29.03.2011, in the facts and circumstances of the case, this Court is of the opinion that there is no need to quash the said notification. The Sub-Registrar and Deputy Registrar, Udupi are hereby directed to refund Rs.3,46,338/(Rupees three lakhs forty six thousand three hundred and thirty eight) along with interest at 6% per annum calculated from the date of payment till realization. The respondent Nos.4 and 5 shall refund the said amount along with interest within a period of four weeks from the date of receipt of a certified copy of this order. Accordingly, the petition is allowed. No order as to costs.