the learned Government Pleader in support of his contentions that the
rates mentioned in the Ready Reckoner are guidelines to the registering
authority for the imposition of stamp duty. The Judgment of the
Division Bench of this Court in the case of Solapur Promoters and
Builders Association (supra) was concerning the development charges
which are to be levied under Chapter VIA of the Maharashtra Regional
Town Planning Act. The imposition of charges at flat rate regardless of
location of land was challenged on the ground that it was violative of
Article 14 of the Constitution of India. In support of the said
contention, reliance was sought to be placed on the rates mentioned in
the annual statement of rates published by the State Government i.e.
the Ready Reckoner rates. The Division Bench held that the reliance
placed by the Petitioner in the said Petition on the Ready Reckoner
which is device for the purpose of imposition of stamp duty was
misplaced as a Ready Reckoner provides guidelines to the registering
authorities for the imposition of stamp duty which is depending upon
the market value of the property. Now coming to the Judgment of the
Division Bench of this Court in the case of Prasadnagar Cooperative
(supra) the quashing and setting aside of the Ready Reckoner rates and
the amendment thereto in respect of the Petitioner's layout situated at
Jaitala, Nagpur was sought. The Division Bench, whilst allowing the
Petition, directed the Respondents to treat the Ready Reckoner as
guidelines and as a declaration of prima facie market value.
Hence, by the Judgments (supra), this Court has treated the
Ready Reckoner as merely guidelines for the purposes of imposition of
the stamp duty, as the same depends on the market value of the
property.
18) In the instant case, as indicated above, it is an undisputed
fact that the Petitioner's property which is the subject matter of the
Indenture is situated in the “Phoenix Mills Compound” and bears CTS
Nos.1/142, 71 and 109. The question is whether the said instrument is
to be charged on the basis of Value Zone 12/91 or Value Zone 12/91G
as contained in the Ready Reckoner. In the said context, it is required to
be noted that by the Value Zone 12/91G all the properties of Phoenix
Mills are covered meaning thereby that the Phoenix Mills Compound is
treated as an entity by itself considering the commercial value of the
properties situated therein and is therefore placed in Value Zone
12/91G which is to be considered whilst adjudicating the stamp duty
that is payable in respect of the instrument which is in respect of a
property situated therein. Hence, though the CTS numbers of the
Petitioner's property are placed in Value Zone 12/91, which attracts a
lesser stamp duty, the Petitioner would be liable to pay stamp duty as
per Value Zone 12/91G as the Phoenix Mills Compound is treated as an
entity by itself and therefore, though a part of the property in the said
Phoenix Mills Compound is placed in Value Zone 12/91, the same is
obviously a mistake which has been corrected by issuance of the letter
dated 10th January, 2012 of the Deputy Director of Town Planning,
Mumbai.
19) Insofar as the adjudication by the Respondent No. 1 is
concerned, the fact is that the rates mentioned in the Ready Reckoner
are guidelines to the registering authorities for the adjudication of the
stamp duty, the Respondent No. 1 or for that matter even the Collector
of Stamps would therefore not be bound by the rates mentioned in the
Ready Reckoner and even if there were not to be any correction as in
the instant case, by which correction, the CTS numbers of the Petitioner
are now included in Value Zone 12/91G, the Respondent No. 1 would
still be entitled to rely upon the said Value Zone 12/91G for the
purposes of calculating the stamp duty payable on the said Indenture as
the Petitioner's property is undisputedly situated in the Phoenix Mills
Compound. Hence, there is no question of the amendment to Value
Zone 12/91G being applied retrospectively. It is required to be noted
that the powers of the authorities under the Stamp Act are wide enough
and cannot be fettered by the rates mentioned in the Ready Reckoner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4036 OF 2013
CR Retail Malls (India) Limited
versus
Chief Controlling Revenue
CORAM : R. M. SAVANT, J.
PRONOUNCED ON : JULY 9 , 2014
Citation: 2016(2) ALLMR 289
2) The Writ Jurisdiction of this Court under Articles 226 and
227 of the Constitution of India is invoked against the order dated 21st
March, 2013 passed by the Respondent No. 1 herein i.e. the Chief
Controlling Revenue Authority, Maharashtra State, Pune, by which
order, the Petitioner was directed to pay an amount of Rs. 91,66,800/
(Rupees ninety one lacs sixty six thousand eight hundred only) as the
deficit stamp duty in respect of the document being the Indenture of
SubLease (for short the “Indenture”) which was got registered by the
Petitioner.
3) The facts giving rise to the above Petition can be stated
thus:
The Petitioner is engaged in the business of operating multiscreen
multiplex for exhibition of cinemas and operates the seven
screen multiplex cinema unit at Block No. 43 and 43A, Phoenix Mills
Compound, 462, Senapati Bapat Marg, bearing CTS No. 1/142, 71 and
109, Lower Parel, Mumbai. Insofar as the said CTS No. 1/142, 71 and
109 are concerned, the Municipal Corporation of Greater Mumbai (for
short “MCGM”) was the original owner of the lands comprises in the
said CTS. The MCGM had leased the same to the Phoenix Mills Limited
vide an Indenture of Lease dated 17th August, 2005 for a period of 999
years. The Phoenix Mills Limited and one PVR Limited, which is a
group company of the Petitioner, entered into an agreement on 22nd
July, 2005, by which, the Phoenix Mills Limited agreed to construct
seven screen multiplex having sitting capacity of 200 and the said PVR
Limited had agreed to take the same on long lease, which would be by
way of SubLease, as the Phoenix Mills Limited itself was the original
Lessee from the MCGM. The said agreement dated 22nd July, 2005 was
assigned by the said PVR Limited on 27th February, 2007 in favour of the
Petitioner. Pursuant to such assignment, the PVR Limited and the
Petitioner entered into an Indenture of SubLease which was registered
with the Joint SubRegistrar, Mumbai City No. 2 at Sr. No. 1757 of 2007
on the same date.
4) It appears that prior to the execution and registration of the
Indenture, the Petitioner had applied to the Respondent No. 2 under
Section 32 of the Bombay Stamp Act (for short “the said Act”) vide
adjudication case No. ADJ/427/2007 for adjudication of the proper
stamp duty payable on the Indenture. The draft of the Indenture was
also submitted to the respondent No. 2. It is the case of the Petitioner
that the Respondent No. 2, after holding due inquiry, had certified that
the proper stamp duty payable on the Indenture was Rs.2,34,37,500/.
5) On the ground that the said document was short levied for
stamp duty, a notice was issued by the office of the Respondent No. 1
calling upon the Petitioner to attend the hearing of Revision Case being
No. 42 of 2009, which was initiated in exercise of the powers under
section 53A of the said Act. The cause for initiating the said action was
the Audit report of the Accountant General, Nagpur, which, in its local
inspection of the office of the SubRegistrar, Mumbai No. 2 had taken
objection of the valuation of the Indenture and consequently the stamp
duty paid on the same. The office of the Accountant General referred to
the annual statement of rates of properties in Mumbai City in the year
2007 i.e. the Ready Reckoner rates. As per the office of the Accountant
General, since the property which was subleased to the Petitioner by
the Indenture is situated in the Phoenix Mills Compound, the
commercial rate of valuation Zone 12/91G ought to be applied to the
Indenture for the purpose of calculating the stamp duty payable thereon
and if so applied, there was a short levy of stamp duty. The Petitioner, it
seems, objected to the said revised calculation on the ground that the
property falls in Value Zone 12/91 and therefore the stamp duty
leviable on the document in question was properly adjudicated. The
objection raised by the Petitioner was rejected by the Respondent No. 1
on 10th August, 2010 and the Petitioner was directed to deposit the
amount of Rs.90,68,925/.
6) The Petitioner had challenged the said order dated 10th
August, 2010 by way of Writ Petition No. 9010 of 2010. This Court was
pleased to set aside the said order dated 10th August, 2010 and directed
the Respondent No. 1 to pass a fresh order after hearing the Petitioner.
It is pursuant thereto that the Petitioner was heard. Detailed
submissions were made on behalf of the Petitioner and reliance was also
placed on Judgments. The Respondent No. 1 as by the impugned order
dated 21st March, 2013 rejected the objections of the Petitioner in
respect of the recovery of the deficit stamp duty and directed the
Petitioner to pay the amount of Rs. 91,66,800/, which was the deficit
stamp duty payable by the Petitioner. As indicated above, it is the said
order dated 21st March, 2013 passed by the Respondent No. 1 which is
taken exception to by way of the above Petition.
7) At this stage, reference to the “Ready Reckoner” is required
to be made. The State Government, for the purposes of levying stamp
duty publishes the Annual Statement of Rates, popularly known as the
“Ready Reckoner”, wherein the market value of the properties in
different areas are mentioned. The said Ready Reckoner is published
every year by the State Government and which is in the nature of
guidelines for the Stamp Authorities to assess the market value of the
property covered by a particular document and thereby arrive at the
stamp duty that would be payable thereon. In the instant case, the
document i.e. the Indenture has been registered in the year 2007. The
value zone and the rates mentioned in the said year are therefore
relevant.
8) It is an undisputed position that the Petitioner's property is
situated in CTS Nos. 1/142, 71 and 109. In the Ready Reckoner of the
year 2007, the said CTS numbers are placed in value zone 12/91.
However, insofar as the “Phoenix Mills Compound” is concerned, it finds
a place in value zone 12/91G. In the said value zone, it has been
mentioned to the following effect:
“all the properties of Phoenix Mill and CTS Nos. 140 and 141”
The said Ready Reckoner has been corrected by the State
Government by the letter dated 10th January, 2012 addressed to the
Joint Director, Town Planning Valuation, Pune, by which the entries in
value zone 12/19G are corrected so as to include CTS Nos. 140, 141,
1/142 part, 71 part and 109 part. The said letter, therefore, is by way
of a corrigendum correcting the entries in the said two value zones i.e.
12/91 and 12/91G.
9) Heard the learned Counsel appearing for the parties i.e. the
learned Senior Counsel Shri. Virendra Tulzapurkar appearing for the
Petitioner and the learned Government Pleader Shri. S. K. Shinde
appearing for the Respondent Nos. 1 to 3.
10) The learned Senior Counsel Shri. Tulzapurkar appearing for
the Petitioner would contend that the Respondent No. 1 had erred in
going by the description of the property in the Ready Reckoner rather
than the specific CTS numbers in which the property is situated. The
learned Senior Counsel would contend that the adjudicating authority
had, by considering the CTS numbers, had correctly applied the Value
Zone 12/91 and had accordingly adjudicated the stamp duty payable by
the Petitioner. The learned Senior Counsel would further contend that
the Respondent No. 1 is enjoined by the said act to carry out the
exercise of readjudication of the stamp duty payable, however, without
carrying out such exercise, the Respondent No. 1, by merely going by
the description of the property, has held that the rates in Value Zone
12/91G would apply rather then the rates in Value Zone 12/91. The
learned Senior Counsel would contend that even within one area there
can be properties which have different values, as the values of the
properties would depend upon various functions like road frontage etc.
the learned Senior Counsel sought to draw the Court's attention to the
Ready Reckoner for the said purpose. The learned Senior Counsel
would contend that the Respondent No. 1 was not entitled to take into
consideration the correction which has been carried out in the Ready
Reckoner, insofar as values in Value Zone 12/91 and 12/91G are
concerned, which correction has come in the year 2012, whereas, the
Petitioner's document has been adjudicated in the year 2007 and
therefore, the Respondents are not entitled to apply the correction made
in the said Value Zones retrospectively. The learned Senior Counsel
lastly contended that if two interpretations are possible, the
interpretation which is in favour of the Assessee should be adopted. In
support of the said contention, the learned Senior Counsel relied upon
the Judgment of the Apex Court in the case of The Central India
Spinning and Weaving and Manufacturing Co. Ltd., The Empress Mills,
Nagpur vs. The Municipal Committee, Wardha1
.
11) Per contra, the learned Government Pleader Shri. S. K.
Shinde contended that in the instant case the power exercised is one
under Section 53A of the said Act, which provision contains the
circumstances in which the said power can be exercised. The learned
Government Pleader would contend that the Ready Reckoner is only by
way of guidelines for adjudicating the stamp duty. The learned
Government Pleader would contend that the powers of the adjudicating
authority cannot be fettered by the rates mentioned in the Ready
Reckoner. The learned Government would contend that in the instant
case, it is an undisputed position that the multiplexes of the Petitioner
are situated within the Phoenix Mills Compound and since the Phoenix
Mills Compound is treated as a separate entity by placing it in Value
1 AIR 1958 (SC) 341 (V 45 C 55)
Zone 12/91G, it is the said Value Zone which is to apply and not Value
Zone 12/91, wherein the CTS numbers of the lands on which the
property of the Petitioner is situated. The learned Government Pleader
would contend that the authorities were therefore entitled to correct the
said mistake and readjudicate the document in question i.e. the
Indenture by invoking Section 53A of the said Act. The learned
Government Pleader would contend that the fact that the rates in the
Ready Reckoner are guidelines is fortified by the Judgments of the
Division Benches of this Court. The learned Government Pleader drew
the Courts attention to the Judgments in the case of Prasadnagar Cooperative
vs. State of Maharashtra and Ors.2
, Solapur Promoters and
Builders Association Society and Anr. vs. State of Maharashtra and Ors.3
and Ashok Bansilal Mutha and Anr. vs. State of Maharashtra and Ors.4
.
12) The learned Government Pleader would contend that the
adjudicating authority is not bound by the rates mentioned in the Ready
Reckoner and can, while exercising powers under the said Act, apply
the rates which it thinks are applicable to the property in question for
the purpose of the payment of stamp duty covering the said property.
The learned Government Pleader would contend that though the
correction has been made in the Ready Reckoner insofar as the Value
2 2005(3) Bom. CR 478
3 2005(5) Bom. CR 626
4 2012 (6) Bom. CR 118
Page 9 of 26
Zone 12/91 and 12/92G are concerned in the year 2012, the same is of
no consequence, as the said correction has not been relied upon, but
what has been relied upon is the fact that the property of the Petitioner
is situated in the Phoenix Mills Compound, which is in Value Zone
12/91G. The learned Government Pleader would therefore contend
that the instant case is a case where a wrong Value Zone was applied to
the Petitioner, resulting in loss of revenue to the State and therefore,
this Court, in the exercise of Writ Jurisdiction, would not interfere with
the order passed by the Respondent No. 1.
13) I have heard the learned Counsel appearing for the parties,
I have considered the rival contentions. At the outset, it would be
necessary to refer to the statutory provisions which lay down legal
framework within which the authorities act. The same are as follows:
“31. Adjudication as to proper stamps
(1) When an instrument, whether executed or not and
whether previously stamped or not, is brought to the Collector,
by one of the parties to the instrument and such person applies
to have the opinion of that officer as to the duty (if any) with
which or the Article of Schedule I under which it is chargeable
and pay a fee of one hundred rupees the Collector shall
determine the duty (if any) with which or the Article of
Schedule I under which in his judgment, the instrument is
chargeable.
(2) For this purpose the Collector may require to be
furnished with a true copy or an abstract of the instrument, and
also with such affidavit or other evidence as he may deem
necessary to prove that all the facts and circumstances affecting
the chargeability of the instrument with duty, or the amount of
the duty with which is chargeable, are fully and truly set forth
therein and may refuse to proceed upon any such application
until such true copy or abstract and evidence have been
furnished accordingly:
Provided that,
(a) no evidence furnished in pursuance of this
section shall be used against any person in any civil proceeding,
except in any inquiry as to the duty with which the instrument
to which it relates is chargeable; and
(b) every person by whom any such evidence is
furnished shall, on payment of the full duty with which the
instrument to which it relates is chargeable, be relieved from
any penalty which he may have incurred under this Act by
reason of the omission to state truly in such instrument any of
the facts or circumstances aforesaid.
(3) Where the collector acting under subsections (1)
and (2) is not the Collector of the District and if he has reasons
to believe that the market value of the property, which is the
subject matter of the instrument, received by him for
adjudication, has not been truly set forth therein, he shall, for
the purpose of assessing the stamp duty, determine the true
market value of such property, as laid down in the Bombay
Stamp (Determination of True Market Value of Property) Rules,
1995.
(4) When an instrument is brought to the Collector for
adjudication,
(i) within one month of the execution or first
execution of such instrument in the State; or
(ii) if, such instrument is executed or first
executed, out of the State, within three months from the date of
first receipt of such instrument in this State,
the person liable to pay the stamp duty under section 30
shall pay the same within sixty days from the date of service of
the notice of demand in respect of the stamp duty adjudicated
by the Collector. If such person fails to pay the stamp duty so
demanded within the said period, he shall be liable to pay a
penalty at the rate of two per cent of the deficient portion of the
stamp duty, for every month or part thereof, from the date of
execution of such instrument, or as the case may be, date of the
first receipt of such instrument in the State:
Provided that, in no case, the amount of the penalty shall
exceed double the deficient portion of the stamp duty.”
Hence under the above Section, the Collector is charged with the
duty to determine the stamp duty chargeable on the instrument which
has been brought to him for the adjudication of the stamp duty that is
payable. The Collector has to be provided with all the facts and
circumstances affecting the chargeability of the instrument with duty or
the amount of the duty with which it is chargeable.
“32. Certificate by Collector.
(1) When an instrument brought to the Collector under
section 31, is in his opinion, one of a description chargeable
with duty, and
(a) the Collector determines that it is already
fully stamped, or
(b) the duty determined by the Collector under
section 31, or such sum as with the duty already paid in respect
of the instrument, is equal to the duty, so determined has been
paid,
the Collector shall certify by endorsement on such
instrument that the full duty standing the relevant Article of
Schedule I and the amount which which it is chargeable has
been paid.
(2) When such instrument is, in his opinion, not
chargeable with duty, the Collector shall certify in manner
aforesaid that such instrument is not so chargeable.”
Under this Section, the Collector issues a certificate that stamp
duty determined in respect of an instrument has been paid. The said
certification is done by the Collector by making an endorsement on such
instrument.
“32A. Instrument of conveyance, etc. undervalued how
to be dealt with.
(1) Every instrument of conveyance, exchange, gift,
certificate of sale, deed of partition or power of attorney to sell
immovable property when given for consideration, deed of
settlement or transfer of lease by way of assignment, presented
for registration under the provisions of Registration Act, 1908,
shall be accompanied by a true copy thereof:
Provided that, in case of such instruments executed on or
after the 4th July, 1980, to the date of commencement of the
Bombay Stamp (Amendment) Act, 1985, an extract of the
instrument to be taken from the registration record shall be
deemed to be the true copy accompanying the instrument,
presented for registration for the purposes of subsection (1).
(2) Any registering officer receiving such instrument
for registration has reason to believe, on the basis of the
information available with him in this behalf, that the market
value of immovable property which is the subject matter of
such instrument has not been truly set forth therein, he shall,
immediately after receiving of such instrument, refer it to the
Collector for determination of the true market value of such
property:
Provided that, in respect of the instrument presented for
registration before the date of commencement of the
Maharashtra Tax Laws (Levy, Second Amendment and
Validation) Act, 1996 where, in the opinion of the registering
officer, the true market value of the immovable property, which
is the subject matter of the said instrument, has not been
determined by the Collector of the District, it shall be lawful for
the registering officer to verify the true market value of such
property as per the annual statement of rates of immovable
property determined under the Bombay Stamp (Determination
of True Market Value of Property) Rules, 1995 and issue notice
to the person, who is liable to pay stamp duty under section 30
calling upon such person to pay the deficit amount of stamp
duty and penalty at the rate of 2 per cent of the deficient
portion of the stamp duty, for every month or part thereof from
the date of execution of such instrument:
Provided further that, on the receipt of such notice, if the
person liable to pay deficit amount of stamp duty and the
penalty, pays within one month from the date of receipt of such
notice, the deficient amount of stamp duty and also pays the
fixed penalty of rupees two hundred fifty, he shall not be liable
to make payment of penalty at the rate of 2 per cent., as
provided in the first proviso; and the reference already made to
the Collector of the District shall abate:
Provided also that, in no case, the amount of the penalty
to be charged under the proviso shall exceed double the deficit
portion of the stamp duty.
(3) If any person referred to in section 33, before
whom any such instrument is produced or comes in the
performance of his functions, has reason to believe that the
market value of the immovable property which is the subject
matter of such instrument has not been truly set forth therein,
he may, after performing his function in respect of such
instrument, refer the instrument along with a true copy of such
instrument to the Collector of the district for determination of
the true market value of such property and the proper duty
payable on the instrument.
Provided that if the person, before whom any such
instrument is produced or comes in performance of his
functions, is an officer appointed as the Collector under clause
(f) of section 2, and he has reason to believe that the market
value of the immovable property which is the subject matter of
such instrument has not been truly setforth therein, he shall,
for the purpose of assessing the stamp duty, determine the true
market value of such property in the manner laid down in the
Bombay Stamp (Determination of True Market Value of
Property) Rules, 1995;
(4) On receipt of the instrument or the true copy of the
instrument as the case may be, under subsection (2) or (3), the
Collector of the District shall, after giving the parties concerned
a reasonable opportunity of being heard and in accordance
with the rules made by the State Government in that behalf,
determine the true market value of the immovable property
which is the subject matter of the instrument and the proper
duty payable thereon. Upon such determination, the Collector
of the District shall require the party liable to pay the duty, to
make the payment of the amount required to make up the
difference between the amount of duty determined under this
subsection and the amount of duty already paid by him and
shall also require such party to pay in addition, a penalty of 2
per cent for every month or part thereof from the date of
execution of the instrument on differential amount of stamp
duty; and on such payment, the instrument received under subPage
section (2) or (3) shall be returned to the officer or person
referred to therein:
Provided that, no such party shall be required to pay any
amount to make up the difference or to pay any penalty under
this subsection, if the difference between the amount of the
market value as set forth in the instrument and the market
value as determined by the Collector of the District does not
exceed ten per cent, of the market value determined by the
Collector of the District:
Provided further that, in respect of references pending
with the Collector of the, District, before the commencement of
the Maharashtra Tax Laws (Levy Second Amendment and
Validation) Act, 1996, for determination of true market value
of the immovable property which is the subject matter of the
instrument, the person liable to pay the stamp duty under
section 30 shall not be liable to pay penalty exceeding rupees
250 if, he makes the payment of the stamp duty and penalty
within one month from the date of receipt of the order of the
Collector of the District, by him.
Provided also that, in no case, the amount of the penalty
shall exceed double the deficient portion of the stamp duty.
(5) The Collector of the District, may, suo moto or on
receipt of information from any source, within ten years from
the date of registration of any instrument referred to in subsection
(1), (not being the instrument upon which an
endorsement has been made under section 32 or the
instrument or the instruments in respect of which the proper
duty has been determined by him under subsection (4) or an
instrument executed before the 4th July 1980), call for the true
copy or an abstract of the instrument from the registering
officer and examine it for the purpose of satisfying himself as
to the correctness of the market value of the immovable
property which is the subject matter. of such instrument and
the duty payable thereon; and if, after such examination, he
has reason to believe that the market value of such property
has not been truly and fully setforth in the instrument he shall
proceed as provided in subsection (4).
(6) It shall be lawful for the Chief Controlling Revenue
Authority or the Collector of the District to transfer to any
other Officer, any reference received by the Collector of the
District under this section, for disposal in accordance with the
Bombay Stamp (Determination of True Market Value of
Property) Rules, 1995.”
This Section provides for that registering officer receiving an
instrument for registration has reason to believe on the basis of the
information available with him in that behalf that the value of the
immovable property which is the subject matter of such instrument has
not been truly setforth therein, he shall immediately, after receiving
such instrument, refer it to the Collector for determination of the true
market value of such property.
“53A. Revision of Collector's decision under sections
32, 39 and 41
(1) Notwithstanding anything contained in subsection
(3) of section 32, subsection (2) of section 39 and subsection
(2) of section 41, when through mistake or otherwise any
instrument is charged with less duty than leviable thereon, or
is held not chargeable with duty, as the case may be, by the
Collector, the Chief Controlling Revenue Authority may, within
a period of six years from the date of certificate of the
Collector under section 32, 39 or 41, as the case may be,
require the concerned party to produce before him the
instrument and, after giving a reasonable opportunity of being
heard to the party, examine such instrument whether any duty
is chargeable, or any duty is less levied, thereon and order the
recovery of the deficit duty, if any, from the concerned party.
An endorsement shall thereafter be made on the instrument
after payment of such deficit duty.
(2) On failure to produce the original instrument by the
party, the Chief Controlling Revenue Authority shall proceed
under this section on the basis of the true copy or an abstract
of the instrument filed with the Collector under section 31 or
subsection (2) of section 37 and such copy or abstract shall be
deemed to be the original instrument for the purposes of this
section.”
This provision provides for the revision of the Collector's decision
taken under Sections 32, 39 and 41 of the said Act. Under the said
provision, the Collector or the Chief Controlling Revenue Authority may,
within a period of six years from the date of certificate of the Collector
under Section 32, 39 or 41, as the case may be, may requires the
concerned authority to produce before him the instrument and after
giving a reasonable opportunity of being heard to the party, examine
such instrument, whether any duty is chargeable or any duty is less
levied thereon and orders a recovery of the deficit duty if any from the
concerned party. The said provision can be invoked when through
mistake or otherwise any instrument is charged with less duty than
leviable thereon or is held not chargeable with duty.
14) A reading of the aforesaid provisions therefore disclose that
the Collector and the Chief Controlling Authority have powers vested in
them under the said Act in respect of the cases of short levy of stamp
duty which has a direct corelation to the undervaluing of the property.
In the instant case, it is under Section 53A that the Controlling
Authority has exercised powers in view of the audit objection which was
raised by the office of the Accountant General, Nagpur. As indicated
above, the audit objection was on account of the fact that the
Petitioner's Indenture was assessed by applying Value Zone 12/91
instead of 12/91G and therefore, according to the audit objection, there
was short levy of stamp duty to the extent of Rs. 89,68,177/. In view
of the audit objection, the proceedings under Section 53A of the Act
were initiated against the Petitioner by the Chief Controlling Authority.
The Chief Controlling Authority, as can be seen from the impugned
order, has also obtained the reports of the Joint Director of Town
Planning, Mumbai who in turn had called for a report from the Deputy
Director of Town Planning Mumbai, as regards the location of the
Petitioner's property which is covered by the said Indenture. The said
reports have been adverted to in the impugned order passed by the
Chief Controlling Authority. However, the valuation as set out by the
Deputy Director of Town Planning, Mumbai has been corrected by the
office of the Joint Director, Town Planning, Pune by taking into
consideration the value of the parking and the area for DG sets and
hence, there is a marginal difference in the extent of the short levy of
the stamp duty, computed by the office of the Joint Director, Town
Planning, Pune and the Deputy Director, Town Planning, Mumbai. The
Chief Controlling Authority has accordingly, after giving an opportunity
to the Petitioner, has adjudicated upon the matter in respect of the short
levy of the stamp duty in respect of the Indenture of the Petitioner.
Hence, insofar as the procedure that is required to be followed is
concerned, the Chief Controlling Authority, as can be seen had called for
the report of the Joint Director, Town Planning, Pune, Maharashtra and
it is after getting the said report has adjudicated upon the said matter.
Hence no fault can be found with the said proceedings.
15) It would be apposite to reproduce the unamended value
zone 12/91 and value zone 12/91G and the rates mentioned therein :
Zone
-
Sub
Zone
Description
Rate of
Dev.
Land
F.S.I. 1
Rate of Land+Building in Rs. Per
Sq. Mt.
Residential
Office
Shop/
Commercial
Industrial
… …... ….. ….. ….. ….. …..
12
91
Land: On North Pandurang
Budhkar Marg from Gokhale Road
to Balsheth Madurkar Marg upto
Central Railway Line, on East
Western railway line. On West Dr.
E. Moses road and Dr. G. M.
Bhosle Marg. All the traingular
portion
T.P.S./F.P.No. 1, 2, 3, 4, 5, 6, 7, 8,
9, 12, 14
C.T.S. No. 1/1, 1/2, ….......1/142
….....70 to 79 ….......96 to 109 …..
23300 57500 63300 69000 57500
12
91G
Land: All the properties of
Phoenix Mill.
C.T.S. No. 140, 141
45000 100000 110000 120000 100000
16) Before proceeding further, it would be relevant to consider
the location of the Petitioner's property as covered by the said
Indenture. For the said purpose, it would be relevant to refer to
Schedule I and Schedule II of the said Indenture, which, for the sake of
ready reference, are reproduced herein under:
“Schedule I
The entire plot of land bearing CTS No. 1/142, 71 and 109
admeasuring approximately 20,091 sq. yds. Equivalent to
16,796.07 sq. meters or thereabouts, situate at the Phoenix
Mills Compound, 462, Senapati Bapat Marg, Lower Parel,
Mumbai – 400 013, with the structures standing thereon
Schedule 2
All the premises being part of the structure being the
Multiplex Cinema Unit situated in Block 43 & Block 43A
admeasuring approximately 6,060.77 sq. mtrs (buildup area)
equivalent to 64,345 sq. ft (buildup area) and the space
measuring 780 sq ft (buildup area) for installation of the DG
sets of the SubLease on the ground floor of Block 47, in
front of SAI Service Station, below the ramp leading to
podium level parking or thereabouts situate at the Phoenix
Mills Compound, 462, Senapati Bapat Marg, Lower Parel,
Mumbai – 400 013.” (emphasis supplied)
A reading of the aforesaid Schedules therefore indicates that the
Petitioner's property is undisputedly situated in the Phoenix Mills
Compound though it bears CTS No. 1/142, 71 and 109.
17) It would also be apposite to refer to the Judgments cited by
the learned Government Pleader in support of his contentions that the
rates mentioned in the Ready Reckoner are guidelines to the registering
authority for the imposition of stamp duty. The Judgment of the
Division Bench of this Court in the case of Solapur Promoters and
Builders Association (supra) was concerning the development charges
which are to be levied under Chapter VIA of the Maharashtra Regional
Town Planning Act. The imposition of charges at flat rate regardless of
location of land was challenged on the ground that it was violative of
Article 14 of the Constitution of India. In support of the said
contention, reliance was sought to be placed on the rates mentioned in
the annual statement of rates published by the State Government i.e.
the Ready Reckoner rates. The Division Bench held that the reliance
placed by the Petitioner in the said Petition on the Ready Reckoner
which is device for the purpose of imposition of stamp duty was
misplaced as a Ready Reckoner provides guidelines to the registering
authorities for the imposition of stamp duty which is depending upon
the market value of the property. Now coming to the Judgment of the
Division Bench of this Court in the case of Prasadnagar Cooperative
(supra) the quashing and setting aside of the Ready Reckoner rates and
the amendment thereto in respect of the Petitioner's layout situated at
Jaitala, Nagpur was sought. The Division Bench, whilst allowing the
Petition, directed the Respondents to treat the Ready Reckoner as
guidelines and as a declaration of prima facie market value.
Hence, by the Judgments (supra), this Court has treated the
Ready Reckoner as merely guidelines for the purposes of imposition of
the stamp duty, as the same depends on the market value of the
property.
18) In the instant case, as indicated above, it is an undisputed
fact that the Petitioner's property which is the subject matter of the
Indenture is situated in the “Phoenix Mills Compound” and bears CTS
Nos.1/142, 71 and 109. The question is whether the said instrument is
to be charged on the basis of Value Zone 12/91 or Value Zone 12/91G
as contained in the Ready Reckoner. In the said context, it is required to
be noted that by the Value Zone 12/91G all the properties of Phoenix
Mills are covered meaning thereby that the Phoenix Mills Compound is
treated as an entity by itself considering the commercial value of the
properties situated therein and is therefore placed in Value Zone
12/91G which is to be considered whilst adjudicating the stamp duty
that is payable in respect of the instrument which is in respect of a
property situated therein. Hence, though the CTS numbers of the
Petitioner's property are placed in Value Zone 12/91, which attracts a
lesser stamp duty, the Petitioner would be liable to pay stamp duty as
per Value Zone 12/91G as the Phoenix Mills Compound is treated as an
entity by itself and therefore, though a part of the property in the said
Phoenix Mills Compound is placed in Value Zone 12/91, the same is
obviously a mistake which has been corrected by issuance of the letter
dated 10th January, 2012 of the Deputy Director of Town Planning,
Mumbai.
19) Insofar as the adjudication by the Respondent No. 1 is
concerned, the fact is that the rates mentioned in the Ready Reckoner
are guidelines to the registering authorities for the adjudication of the
stamp duty, the Respondent No. 1 or for that matter even the Collector
of Stamps would therefore not be bound by the rates mentioned in the
Ready Reckoner and even if there were not to be any correction as in
the instant case, by which correction, the CTS numbers of the Petitioner
are now included in Value Zone 12/91G, the Respondent No. 1 would
still be entitled to rely upon the said Value Zone 12/91G for the
purposes of calculating the stamp duty payable on the said Indenture as
the Petitioner's property is undisputedly situated in the Phoenix Mills
Compound. Hence, there is no question of the amendment to Value
Zone 12/91G being applied retrospectively. It is required to be noted
that the powers of the authorities under the Stamp Act are wide enough
and cannot be fettered by the rates mentioned in the Ready Reckoner.
An indication of the same can be had by having a look at Section 32A of
the said Act, where, the Collector is to follow the required procedure in
the event a document is referred to him on the ground that there is a
short levy of stamp duty. In my view therefore, it is not possible to
accept the contention of the learned Senior Counsel appearing for the
Petitioner that since the CTS numbers of the Petitioner's property appear
in Value Zone 12/91, as per the rates applicable to the said Value Zone
that the Petitioner is liable to pay the stamp duty and since the stamp
duty has been paid by the Petitioner on the said basis, the Respondents
cannot revise the same by calculating the stamp duty on the basis of
Value Zone 12/91G.
20) As regards the contention of the learned Senior Counsel
that in respect of the properties on the same road, different rates are
mentioned, which implies that the rates have been fixed having regard
to the locational advantage etc. and therefore, it is possible that even in
the Phoenix Mills Compound, there can be properties to which lower
rates are fixed. In my view, though the submission at the first blush,
having regard to certain entries in the Ready Reckoner, appears to be
attractive, the same does not hold any water. It is an undisputed fact
that the Phoenix Mills Compound is a commercial hub in the City of
Mumbai and it is for the said reason that the authorities have, while
preparing the annual statement of rates, treated it as an entity by itself.
Hence, there is no question of any locational advantage etc within the
Phoenix Mills Compound, as the intention of the authorities is very clear
that the Phoenix Mills Compound being a commercial hub all the
properties therein are to be covered by Value Zone 12/91G. Hence, it is
not possible to accept the contention of the learned Senior Counsel that
within the same property itself, there can be properties having different
values.
The instant case is not a case where two interpretations are
possible. The instant case is a case where the Phoenix Mills Compound
is treated as an entity by itself and therefore, in a way treated separately
than the other properties and covered by Value Zone 12/91G. If that be
so, all the properties within the Phoenix Mills Compound are liable to
be similarly treated and the Petitioner cannot be singled out on the
ground that the Petitioner's CTS numbers find a place in Value Zone
12/91, which attracts lower rates.
21) Insofar as the impugned order is concerned, it is required
to be noted that the Respondent No. 1 had, prior to carrying out the
adjudication under Section 53A of the said Act, had called for a report
from the Joint Director, Town Planning, Pune, who, in turn, had called
for a report from the Deputy Director of Town Planning, Mumbai as
regards the location and the market value of the property. It is after
obtaining the said report that the exercise under Section 53A of the said
Act was carried out by the Respondent No. 1. As indicated above, the
Respondent No. 1 was within his rights as a Controlling Appellate
Authority to rely upon Value Zone 12/91G of the Ready Reckoner to
adjudicate upon the market value of the property and resultantly, the
deficient stamp duty payable by the Petitioner. In my view, the
procedure that has been followed by the Respondent No. 1 cannot be
said to be in violation of the statutory provisions of the said Act.
22) The impugned order therefore does not suffer from any
illegality or infirmity for this Court to interfere in its Writ Jurisdiction
under Articles 226 and 227 of the Constitution of India. The Writ
Petition is accordingly dismissed. Rule discharged with parties to bear
their respective costs.
(R. M. SAVANT, J.)
At this stage, the learned Counsel appearing for the
Petitioner Shri. Ajit Anekar seeks continuation of the adinterim relief,
which is operating in the above Petition for a period of eight weeks, to
enable the Petitioner to approach the Apex Court. The said adinterim
relief is accordingly continued for a period of eight weeks from date.
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