Petitioner challenged a Collector order demanding deficit stamp duty on a 1980 agreement to sell. Court held that retrospective application of 1989 Rules was invalid and quashed recovery demand.
Order dated 21.07.1997 passed by the Collector is quashed and set aside; writ petition allowed.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ No. 27/1998
M/s. K.k. Enterprises through its partner Shri K.G. Gattani son of late Shri G.D. Gattani, resident of Sri Niketan, 380 Ashok Nagar, Road No.10, Udaipur.
----Petitioner
Versus
----Respondents
For Petitioner(s) : Mr. JP Joshi, Sr. Adv. Assisted by Mr. Siddharth Joshi, Mr. Khet Singh For Respondent(s) : Mr. Narendra S. Rajpurohit
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order
26/02/2019
The petitioner has challenged the order passed by the Collector dated 21.07.1997 whereby, the petitioner has been directed to deposit a sum of Rs.2,75,000/- as recovery of the deficit stamp duty having not been paid holding that the petitioner has purchased the peace of land from M/s Lake Palace Hotels and Motels Private Limited, Udaipur for a sum of Rs.20,00,000/- and has not paid stamp duty.
Learned Senior counsel appearing for the petitioner submit that the Collector while passing the order has failed to consider the reply filed by the petitioner. It is submitted that sale in terms of Section 54 of the TP Act, 1982 was not executed and there was only an agreement to sell executed on 29.09.1980. As on that date stamp duty was not required to be paid on the agreement to sell. It is further submitted that the petitioner was Power of
(2 of 3)
[CW-27/1998]
Attorney Holders of the M/s Lake Palace Hotels and Motels Private Limited, Udaipur and as Power of Attorney Holders further sold the piece of land to different individuals and on each sale, sale deeds were executed by them on behalf of the M/s Lake Palace Hotels and Motels Private Limited, Udaipur and stamp duty was paid for the piece of land sold. Thus, there is no occasion for demand of stamp duty and no recovery could be made from the petitioner who has never purchased the land from the M/s Lake Palace Hotels and Motels Private Limited, Udaipur and has only acted as Power of Attorney Holders.
During the pendency of the writ petition, this Court directed the respondents to make available copy of the sale deed executed by the petitioner in favour of the concerned purchasers and one of the sale deeds, has been placed by the learned counsel for the respondent State.
Learned counsel for the respondent State submits that as per sale deed, it is executed by M/s K.K. Enterprises represented by its partner as vender and thus, it is a case where the petitioner has first purchased the land from the M/s Lake Palace Hotels and Motels Private Limited, Udaipur and then further sold it to different individuals by executing various sale deeds in their favour. Thus, the Collector has rightly issued the orders for recovery and stamp duty on the amount of Rs.20,00,000/- paid by the petitioner to M/s Lake Palace Hotels and Motels Private Limited, Udaipur.
I have considered the submission and find that an agreement to sell was executed on 23.09.1980 between the petitioner-firm and M/s Lake Palace Hotels and Motels Private Limited, Udaipur through its Managing Director. Apart from the agreement to sell, a Power of Attorney was also executed in favour of Shri K.G.
(3 of 3)
[CW-27/1998]
Gattani, partner and authorized representative of M/s K.K. Enterprise on 23.09.1980 which was duly registered on 28.10.1980. The sale deed which has been executed by the petitioner M/s K.K. Enterprises through its partner Shri K.G. Gattani, shows that the petitioner representing the vender, has mentioned that they are executing the sale as Power of Attorney Holder/s and in para 4 of the sale deed which has been specifically stated which is reproduced herein below:-
Copy of the sale deed is taken on record. Thus, this Court finds that in fact no sale-deed was executed between the M/s Lake Palace Hotels and Motels Private Limited, Udaipur and petitioner and, therefore, stamp duty on the agreement to sell for a sum of Rs. 20,00,000/-, was not payable and therefore, the demand raised by the Collector is thus not made out, it is all the more to note that the Rajasthan Stamp Rules and the New Provisions thereunder, namely, Rule 66(c) requiring stamp duty to be paid on agreement to sell was incorporated in the year 1989 and was therefore not to be applied retrospectively to the agreement to sell already executed prior to it. Thus, concluded, the order passed by the Collector dated 21.07.1997 is quashed and set aside. Since stay order granted by this Court is already operating, no orders are required to be passed to return the amount. However, if any solvent security has been submitted by the petitioner, the same shall stand discharged. The writ petition stands allowed.
No cost.
(SANJEEV PRAKASH SHARMA),J
2-Hanuman/-
3 issues framed by the court
Whether Stamp Rules 1989 retrospectively apply to an agreement to sell executed in 1980.
Whether the petitioner was liable for stamp duty escalation despite acting as Power of Attorney Holder.
Whether the Collector's order demanding recovery of deficit stamp duty was maintainable.
2 provisions across 2 enactments
M/s. K.k. Enterprises
State of Rajasthan
Collector (Stamp) Udaipur
Collector (Stamps), Udaipur Division
Sub-Registrar, Udaipur
Sanjeev Prakash Sharma
As recorded by the court registry
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