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2021 DIGILAW 411 (KAR)

Ansari Mohammed Laiquddin v. State of Karnataka

2021-03-12

S.C.SHARMA, V.SRISHANANDA

body2021
JUDGMENT : S.C. Sharma, J. 1. I.A. No. 1/2019 is an application for condonation of delay. After hearing learned counsel for the parties, the delay stands condoned for the reasons detailed in the affidavit filed in support of the application for condonation of delay. Accordingly, the application stands allowed in all the appeals. 2. Regard being had to the similitude in the controversy involved in all the three cases, they were heard analogously together and a common order is being passed. 3. The facts of W.A. No. 3970/2019 are reproduced as under: That, the appellants before this Court were the owners of the residential property bearing No. 85, having Khatha No. 268/123/85, measuring 7206 Sq. Ft., situated at Hollywood Town, Ilathore Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District. The property was purchased by the appellants on 11.09.1996 through a registered sale deed. The appellants as intended to sell the property and as they were not in a position to personally execute the sale deed, appointed Mr. John Robert Colaco as their Power of Attorney Holder and executed a registered General Power of Attorney on 25.03.2011 authorising Mr. John Robert Colaco to sell the property. The stamp duty amounting to Rs. 3,89,160/- was paid in the matter. The appellants have further stated that Power of Attorney dated 25.3.2011 does not create any right, interest in or over the property in favour of Power of Attorney Mr. John Robert Colaco and he was only authorised to sell the property. 4. The Power of Attorney holder Mr. John Robert Colaco executed a sale deed on 16.05.2011 in favour of Agnelo Franscisco Cabral, Mrs. Terezinha Diniz Cabral and Mr. Trevor Savio Cabral. At the time of execution of the registered sale deed on 16.05.2011, full stamp duty amounting to Rs. 4,39,820/- was paid and the stamp duty already paid in respect of General Power of Attorney was not adjusted at the time when the registration of sale deed took place. The appellants, being aggrieved by the alleged excess collection of stamp duty by the Authorities, submitted a representation on 15.12.2011 requesting for refund of the excess stamp duty of Rs. 3,89,160/- as the same was not adjusted while executing the sale deed dated 16.05.2011. However, an order was passed by the 1st respondent on 02.01.2012 rejecting the claim of the appellants declining to refund the excess duty paid. 3,89,160/- as the same was not adjusted while executing the sale deed dated 16.05.2011. However, an order was passed by the 1st respondent on 02.01.2012 rejecting the claim of the appellants declining to refund the excess duty paid. In those circumstances, the appellants preferred writ petitions before the learned Single Judge in W.P. No. 12376/2014 and connected writ petitions and the learned Single Judge has dismissed the writ petitions on 06.08.2019. Being aggrieved by the order passed by the learned Single Judge, the present writ appeal has been filed. 5. Learned Counsel for the appellants has argued before this Court that the learned Single Judge has erred in law and fact in dismissing the writ petitions by holding that the Karnataka Stamp (Amendment) Act, 2011 which came into force w.e.f. 01.04.2011 is having retrospective effect. It has been also argued that the learned Single Judge has failed to notice that the respondent-authorities have collected the stamp duty even though there was a registered power of attorney executed in favour of Mr. John Robert Colaco on 25.03.2011 and the stamp duty to the tune of Rs. 3,89,160/- was paid and the same had to be adjusted at the time of execution of the sale deed based upon the General Power of Attorney. It has been further argued that the Karnataka Stamp Act was amended relating to Article 41(eb) only w.e.f. 01.04.2011 and was having only prospective effect. The learned Counsel has placed reliance upon the judgment of the Apex Court delivered in case of SHARMA TRANSPORT VS. GOVERNMENT OF AP AND OTHERS reported in 2002 (2) SCC 188 on the issue of promissory estoppel. Reliance has also been placed on the judgment of the Apex Court in case of MAFATLAL INDUSTRIES LIMITED VS. UNION OF INDIA reported in (1997) 5 SCC 536 and it has been argued that the amount paid in excess by the appellants deserves to be refunded as at the time, the power of attorney was executed, there was a provision for refund of stamp duty at the time of execution of the sale deed. 6. UNION OF INDIA reported in (1997) 5 SCC 536 and it has been argued that the amount paid in excess by the appellants deserves to be refunded as at the time, the power of attorney was executed, there was a provision for refund of stamp duty at the time of execution of the sale deed. 6. On the other hand, learned Counsel for the respondent-State of Karnataka has vehemently argued before this Court that the learned Single Judge was justified in dismissing the writ petitions as the amendment took place under the Karnataka Stamp Act, 1957 and the same came into force w.e.f. 01.04.2011 and as per the amended proviso to Article 41(eb) of the Schedule, the stamp duty paid on the GPA is adjustable on the sale deed executed, only if the parties and the property contained in the GPAs and the sale deeds are one and the same. It is stated that the amendment came into force after the power of attorney was executed in the name of Mr. John Robert Colaco. Therefore, the question of adjusting the amount paid on the GPA on the sale deed executed after 01.04.2011, does not arise. Therefore, the learned Single Judge was right in dismissing the writ petitions. 7. Heard the learned Counsel appearing for the parties at length and perused the record. 8. The undisputed facts make it very clear that the appellants have executed power of attorney and appointed Mr. John Robert Colaco as their attorney. Three power of attorneys were registered on 25.03.2011, 28.02.2011 and 30.09.2010, which were the subject matter of the petition and connected writ petitions. Undisputedly, the power of attorney holder is not a family member of the appellants. The learned Single Judge has dismissed the writ petitions holding that the Karnataka Stamp (Amendment) Act, 2011 which came into force w.e.f. 01.04.2011 is having retrospective effect. Paragraphs 21 and 22 of the aforesaid order of the learned Single Judge read as under: "21. The material on record clearly depicts that it is not the case of the petitioners in all the writ petitions that GPAs is executed in favour of same parties and the sale deeds are also executed in favour of the same parties. Paragraphs 21 and 22 of the aforesaid order of the learned Single Judge read as under: "21. The material on record clearly depicts that it is not the case of the petitioners in all the writ petitions that GPAs is executed in favour of same parties and the sale deeds are also executed in favour of the same parties. In the absence of said pleadings, the impugned endorsements issued by respondent No. 1 exercising the power under proviso to Article 41 (eb) with effect from 01.04.2011 is just and proper. 22. The petitioners have not made out a ground to interfere with the impugned endorsements Annexure-D in all the writ petitions in exercise of power under Articles 226 and 227 of the Constitution of India. Accordingly, writ petitions stand dismissed. Ordered accordingly". 9. The relevant statutory provisions of law which are necessary to decide the present writ appeal as contained under Section 2(d) of the Stamp Act reads as under: "2 (d) "Conveyance" includes,- (i) a conveyance on sale; (ii) every instrument; (iii) every decree or final order of any Civil Court; (iv) every order made by the High Court under Section 394 of the Companies Act, 1956 in respect of amalgamation of companies, by which property, whether movable or immovable or any estate is transferred to, or vested in, any other person, and which is not otherwise specifically provided for by the schedule;" 10. Articles 20(1) and 41(eb) of the Schedule to the Stamp Act read as under: Articles 20(1): 20(1) For Conveyance.-As defined by clause (d) of Section 2, not being a transfer charged or exempted under No. 52, on the market value of the property which is the subject matter of conveyance Five percent of the value 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. Provided also that notwithstanding anything contrary contained in this Act, where a lease-cum-sale agreement was executed before the thirty first day of March, 2001 in respect of a site allotted by any House Building Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959), and in furtherance of such agreement a conveyance is subsequently executed, the duty payable on such conveyance shall be on the market value of such site as on the date of execution of the lease-cum-sale agreement. Articles 41(eb): (eb) When given to person other than the father, mother, wife or husband, sons, daughters, brothers, sisters in relation to the executant authorising such person to sell immoveable property situated in Karnataka State The same duty as a conveyance under Article 20(1) on the market value of the property which is the subject matter of power of Attorney. Provided that the duty paid on agreement for sale under Article 5(e) or instrument of sale or transfer as the case may be is adjustable towards the duty payable on such power of attorney under Article 41(eb), executed between the same parties and in respect of the same property. 11. The aforesaid statutory provisions of law make it very clear that whenever the GPA is executed in favour of a person other than the father, mother, wife or husband, sons, daughters, brothers and sisters, to sell immovable properties situated in State of Karnataka, the stamp duty as a conveyance under Article 20(1) of the market value of the property which is the subject matter of the power of attorney has to be paid and therefore, the stamp duty was rightly paid at the time of registration of the sale deed as the power of attorney holder was not a family member nor was within the relationship mentioned under Article 41(eb) of the Schedule to the Stamp Act. 12. It is pertinent to note that the amendment to Karnataka Stamp Act came into force w.e.f. 1.4.2011. The sale deed came to be executed subsequent to the amendment to the provisions of Article 41 (eb) of the Schedule to the Act i.e., after 01.04.2011. Hence, the stamp duty paid on the GPAs is not adjustable on the sale deeds because of the fact that the parties comprised in the GPAs and sale deeds are not one and the same. Hence, the stamp duty paid on the GPAs is not adjustable on the sale deeds because of the fact that the parties comprised in the GPAs and sale deeds are not one and the same. The duty paid is adjustable only in case where the parties are same and the property is also same. Therefore, as the sale deed was executed on 16.05.2011 i.e. after the amendment came into force, the stamp duty was rightly recovered in the matter. It is certainly not the case where the statute is being made applicable with retrospective effect. The amendment came into force w.e.f. 01.04.2011 and after 01.04.2011, the sale deeds have been executed. Hence, the question of holding that the statute was made applicable with retrospective effect does not arise. 13. This Court has gone through the judgment of the Hon'ble Supreme Court in case of Sharma Transport (supra). Undisputedly, in the present case, the sale deed was executed after 01.04.2011 i.e., the date on which the schedule was amended. The appellants were certainly entitled for adjustment of the stamp duty on or before 01.04.2011 and nothing prevented them from getting the sale deeds executed prior to 01.04.2011. The provisions contained in the Stamp Act was alive up to 01.04.2011 and it is only after the amendment came into force, the appellants were rightly subjected to the payment of stamp duty on the sale deed also as the sale took place after 01.04.2011. Therefore, the judgment relied upon by the learned Counsel does not help the appellants in any manner. 14. Learned Counsel for the appellants has also placed reliance upon the judgment in the case of DALMIYA CEMENT VENTURE LIMITED VS. THE STATE OF KARNATAKA AND OTHERS reported in ILR 2017 KAR 4989. In the aforesaid case, this Court was considering the provisions of Article 41(eb). In the aforesaid case also, the judgment is again distinguishable on facts. There is no such issue involved with respect to applicability of Article 41(eb) or Article 20(1) of the Schedule to the Stamp Act. In the present case, the appellants wanted refund of the stamp duty on the ground that once the stamp duty has been paid while executing the GPA and the same should be refunded in view of the unamended provision. Any execution of the sale deed has to be done keeping in view the amendment which came into force on 01.04.2011. In the present case, the appellants wanted refund of the stamp duty on the ground that once the stamp duty has been paid while executing the GPA and the same should be refunded in view of the unamended provision. Any execution of the sale deed has to be done keeping in view the amendment which came into force on 01.04.2011. Undisputedly, the sale deed has been executed after 01.04.2011. Therefore, the learned Single Judge was justified in dismissing the writ petitions. 15. A reliance has also been placed upon the judgment delivered in the case of Mafatlal Industries (supra) and the learned Counsel has vehemently argued before this Court that once it is established that the amount that is payable under the statute has been collected from the tax payer and it is refundable, the tax payer automatically gets right to get back the whole amount. If the right is sought to be effectively taken away by imposing the conditions and later on a condition is imposed, then the condition has to be declared ultra virus the constitution. The aforesaid judgment again is distinguishable on facts, as in the present case, the stamp duty has been collected keeping in view the statutory provisions applicable on the dates when the sale deeds were executed. 16. It is undisputed fact that the GPA was registered on 25.03.2011 and the sale deed was executed on 16.05.2011. The amendment to Article 41(eb) of the Schedule to the Stamp Act came into force on 01.04.2011 and therefore, the stamp duty has rightly been paid by the appellants/power of attorney holder. The respondent-authority was justified in rejecting the application submitted by the appellant/GPA holder in the peculiar facts and circumstances of the case. Therefore, this Court does not find any reason to interfere with the order passed by the learned Single Judge. 17. The writ appeal i.e. W.A. No. 3970/2019 is dismissed. In terms of the order passed in aforesaid writ appeal i.e. W.A. No. 3970/2019, the other two writ appeals i.e. W.A. No. 3971/2019 and W.A. No. 3972/2019 are also dismissed.