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Judgment
K.P. Sivasubramaniam, J.—Though the first of these writ petitions is not connected with the other three writ petitions, in view of the fact that
the question of law which arises for consideration is common, all the four writ petitions are taken together.
The issue which arises for consideration is as regards whether the Samadhan Scheme introduced by the Tamil Nadu Government in G.O. Ms.
No. 193, Commercial Taxes Department dated 27.12.2004 could apply to proceedings pending at the appellate stage also or whether the relief is
to be restricted only to proceedings pending before the original authority.
By the said Government Order, the Tamil Nadu Government took into consideration the arrears of stamp duty payable on deeds of sale,
exchange, gift, etc., and had thought it fit to introduce the Samadhan Scheme under the Government Order. The parties in these cases, though they
have suffered an order against them by the original authority, have filed appeals and the appeals were pending when the Samadhan Scheme was
introduced. The stand of the Government is that the benefit of the Samadhan Scheme will be applicable only to proceedings pending before the
original authority.
In W.P. No. 10299 of 2005 is against the order of the original authority dated Nil. 10.2004, directing the petitioner to pay compensation of Rs.
4,95,612/- towards the stamp duty as fixed by the respondent. The petitioner had filed an appeal before the Inspector General of Registration on
10.12.2004.
In W.P. Nos. 13392 to 13394 of 2005, the original authority has passed an order on 2.7.2004 and subsequently, the petitioner had filed an
appeal before the Inspector General of Registration which came to be disposed on 11.2.2005.
In the background of the above facts, the question is as to whether the petitioners are entitled to the benefits of the Samadhan Scheme. The
Scheme came to be introduced only after the original authority had passed the order and appeals were pending before the Inspector General of
Registration.
The following is the full text of the Government Order in G.O. Ms. No. 193 dated 27.12.2004:
COMMERCIAL TAXES DEPARTMENT
G.O.Ms. No. 193 Dated: 27.12.2004.
Read:
G.O.Ms. No. 35, Commercial Taxes Department, dated 26.2.1999.
G.O.Ms. No. 117, Commercial Taxes Department, Dated 26.9.2002.
Read also:
From the Inspector General of Registration, Chennai, Letter No. 29709/C2/04, dated 15.6.2004.
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ORDER:
Stamp duty on deeds of sale, exchange, gift etc. is collected with reference to the market value of the property. Guideline Value Registers are
provided to all Sub-Registrar Offices indicating the values of the landed properties'' in each street and survey number. When a document is
presented for registration, the Sub Registrar verifies whether the value set forth in the document is in accordance with the guideline value and the
Public Works Department Schedule of Rates. If the value set forth in the document is in accordance with guideline value and the PWD Schedule of
Rates, the document is registered and returned to the registrant. If the value of the property set forth in the document by the registrant is below the
guideline value in respect of lands or below the PWD Schedule of Rates in respect of buildings, he is asked to pay the difference amount of stamp
duty. In case the executant refuses to pay the difference, the document is registered but is referred to the District Revenue Officer (Stamps)/Special
Deputy Collector (Stamps) appointed under the Indian Stamp Act, 1899 for determination of market value. It was reported to the Government
that the number of documents referred to the District Revenue Officer (Stamps)/Special Deputy Collector (Stamps) has been increasing every
year. However, disposal of such documents by the District Revenue Officer (Stamps)/ Special Deputy Collector (Stamps) is not keeping pace with
the receipt of the documents. Consequently, revenue due to the State running into crores of rupees are getting blocked. The public are also put into
inconvenience, being unable to get the original documents. In order to obviate the situation, a Samadhan Scheme was implemented in the State in
the years 1999 and 2002.
According to the Inspector General of Registration, 46208 Documents are pending with District Revenue Officer (Stamps) / Special Deputy
Collectors (Stamps) for determination of market value as on 30.11.2004. On account of this, revenue by way of stamp duty amounting to crores
of rupees due to the Government remain uncollected. In view of the present financial difficulty, it is practically not possible to appoint additional
staff to speed up the work of determination of market value of properties. In the above circumstances, the Inspector General of Registration has
proposed to implement a Samadhan Scheme suggesting a remission of 40% of the difference of stamp duty between what is chargeable on the
value of the property as proposed by the registering officer and the duty already paid, in order to unlock the blocked revenue to the Government in
his letter 3rd read above.
The Government after careful examination have decided to accept the proposal of the Inspector General of Registration. Accordingly, they
direct that 40% (Forty percent) of the difference of stamp duty between the duty already paid and what is chargeable on the value of the
properties (both for land and buildings including chargeable assets) as proposed by the registering officer on the basis of Guideline Register in
respect of land and the PWD Schedule of Rates in respect of buildings, be remitted.
The Government issue the following instructions in this regard:-
(i) Documents referred to the District Revenue Officer (Stamps)/Special Deputy Collector (Stamps) under sections 47-A(1), 47-A(3) and 19-
B(4) of the Indian Stamp Act, 1899 and pending with them for determination of market value as on 30.11.2004 and the documents registered and
pending with the registering officers on the above said date for referring to the District Revenue Officer (Stamps)/ Special Deputy Collector
(Stamps) for determination of market value are eligible for availing the concession under the Scheme.
(ii) The stamp duty and the registration fee payable under the scheme shall be collected in the registering office itself.
(iii) The scheme will not be applicable to cases pending for recovery of arrears under the Revenue Recovery Act.
(iv) The scheme shall be implemented for three months from the date of notification.
According to the Revenue, as represented by the learned Additional Advocate General, the Government Order contemplates remission to be
given only in respect of proceedings which are pending before the original authority, and proceedings which have been concluded before the
original authority cannot be brought under the provisions of the Samadhan Scheme.
Mr. V. Raghavachari, learned counsel appearing for the petitioner in W.P. No. 10229 of 2005, contends that a reading of the Government
Order discloses that it is only the proceedings which have reached the final stage and are pending at the stage of recovery of arrears of revenue
under the under the Revenue Recovery Act alone are sought to be exempted from the benefits of the Scheme. Any appeal pending before the
competent authority exercising appellate powers is also a proceeding under the provisions of the Indian Stamp Act. Therefore, any proceeding
pending before any of the hierarchy of authorities mentioned under the Indian Stamp Act, will be a proceeding which will be covered by the
provisions of the Government Order. Reference is made to Paragraph 4(iii), in terms of which, the scheme will not be applicable only to cases
pending for recovery of arrears under the Revenue Recovery Act. Proceedings under the Revenue Recovery Act could be contemplated only after
the entire process of adjudication and appeals are over and there being no further relief available to the petitioner. The question of invoking the
Revenue Recovery Act would not arise in a proceeding which is pending by way of an appeal or revision before the statutory authorities.
Reliance was also placed on the judgment of the Supreme Court in Union of India (UOI) and Others Vs. Onkar S. Kanwar and Others,
M/s. Menon and Goklaney Associates, appearing for the petitioners in the other three writ petitions, have also raised the same contentions and
the learned counsel contends that even assuming that there was any ambiguity and two interpretations were possible on the Government Order, the
benefits should be given to the assessee.
I have considered the submissions of both sides.
A perusal of the Government Order discloses that Paragraph 4(iii) exempts only proceedings pending for recovery of arrears under the
Revenue Recovery Act. It is pertinent to note that proceedings under the Revenue Recovery Act would be initiated only after all the proceedings
under the Act are over. The appeals before the Inspector General of Registration and the subsequent appeal before the High Court are provided
for under the Indian Stamp Act itself. It is well settled that an appeal is only a continuation of the original proceeding. Appeals and revisions are not
separate proceedings. Any order to be passed in the appeal or revision will get merged with the order passed by the original authority.
Proceedings under Appeal are also proceedings under the Stamp Act and it is not possible to discriminate between the two. If the intention was to
exclude proceedings in appeal, it could have been stated so explicitly either that the benefits will extend only in cases where the original authority
had not passed the order or that the scheme will not apply to proceedings under Appeal instead of having stated that the scheme will not apply to
cases pending for recovery of arrears under the Revenue Recovery Act.
One of the contentions raised on behalf of the Revenue is that in paragraph 2 of the Government Order, there is a reference only to the
difference of stamp duty between what is chargeable on the value of the property as proposed by the Registering Officer and the duty already
paid, and not before the other authorities, appellate or revisional. From the above underlined portion, it is sought to be contended that the
Government Order contemplates only the proceedings pending before the registering officer and not proceedings on appeal or revision.
I am unable to sustain the contention on behalf of the revenue. The Government Order has to be read as a whole. If the intention of the
Government was to exclude the proceedings pending under appeal, that would have been stated in the order itself. The only exclusionary clause is
as mentioned above, namely, that the scheme will not be applicable to cases pending for recovery of arrears under the Revenue Recovery Act.
The exclusion thus incorporated in the Government Order is very specific and hence, it is not open to the Revenue to read into the provision by
inference. The very reference to the Revenue Recovery proceedings clearly bring out that it is only those proceedings which had reached finality
and at the stage of execution, will be excluded from the benefit of the scheme.
What has been stated in paragraph 2 of the Government Order is only a statement of the reason by the Government for introducing the
Samadhan Scheme and reference is made to the difference in the amount as fixed by the Registering Officer and the duty already paid, being the
amount which gets locked up as a blocked revenue. Blocking up of revenue is possible and continues during the appeal and second appeal as well.
Therefore, the very object of the scheme would be defeated if it is not applied to appeals also.
While dealing with a similar beneficial scheme under Kar Vivad Samadhan Scheme K.V.S.S. 1998 the issue as to whether the expression
pending adjudication"" would include pendency of the appeal and whether the benefit could be restricted only to cases where the show-cause
notice was pending adjudication arose in UNION OF INDIA AND Ors. v. ONKAR S. KANWAR AND Ors. (2002) 7 SCC 591 supra. The
Supreme Court went into the issue in detail and held that the proceedings would include pendency of the appeal against the adjudication and
hence, declaration under the K.V.S. Scheme could be filed even at the appellate stage. The Supreme Court went further to hold that to restrict the
benefit of the Scheme only to cases pending before the original authority would be contrary to the object of the scheme, unreasonable and
discriminatory. In the same judgment, it was also held by the Supreme Court that the proper rule of interpretation would be that interpretation
which was unreasonable or leads to discrimination, must be avoided.
The same judgment is also an authority for the well accepted proposition that while interpreting the benefits and concessions under the taxing
statutes, if two views are possible, the one in favour of the assessee should be adopted. Therefore, the above-mentioned judgment of the Supreme
Court is a direct judgment on pari materia provision/order and hence, the decision is directly applicable to G.O.Ms. No. 193, Commercial Tax
Department, dated 27.12.2004.
Therefore, I do not find any reason to adopt a narrow interpretation of the Government Order ignoring the fact that an appeal or a revision as
provided for under the statute is only a continuation of the original proceeding and is a proceeding under the Act. There is no justification for
denying the benefits of the scheme merely because of an accidental circumstance of an order having been passed by the original authority and
pending before the appellate authority. In several cases, it is seen that original authority passes the order within a short period immediately after the
registration, while in some other cases, it is seen that proceedings are kept pending before the original authority for more than five or six years. It
would be anomalous to hold that a proceeding which was quickly disposed of shall not have the benefit of the Samadhan Scheme and that a
proceeding which was kept pending on the file of the original authority for several years should alone receive the benefit of the Scheme. The test is
whether the proceedings had reached finality or whether pending at some stage resulting in ""blocked revenue"". Therefore, viewed from any angle,
the interpretation sought to be placed by the Revenue on the Government Order cannot be sustained.
Having regard to the fact of the pendency of the proceedings before the appellate authority as mentioned above, I am inclined to hold that in all
these four writ petitions, the respective petitioners are entitled to the benefit of the scheme. The writ petitions are allowed and the respondents are
directed to calculate the dues in terms of the Scheme and to communicate the same to the petitioners for payment. On the payment being complied
with, the respondents are directed to release the documents forthwith.
With the result, the writ petitions are allowed. Connected W.P.M.P.Nos. 11114 and 14686 to 14688 of 2005 are closed.