Subhash Chandra vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

An instrument under the Indian Stamp Act, 1899 has been defined under sub Section (14) of Section 2 of the said Act, which is quoted hereunder:-

"(14). "Instrument".- "Instrument" includes every document and record created or maintained in or by an electronic storage and retrieval device or media by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded:"

The instrument and the manner in which it has been described, it includes any documents or record, which are created and maintained, whereby, by virtue of the said document a right or liability is created. In the case at hand, which is a subject matter of consideration before this Court, the issue, which has been raised by the learned counsel for the petitioner is that for the purposes of recovering the car parking and Tehbazari for the year 2002-2003, an agreement was executed between the Nagar Panchayat, Kaladhungi, with the petitioner and the total amount, as determined in the said agreement was Rs. 2,04,000/- meaning that it was face value of the Tehbazari rights given to the petitioner.

This was an annual contract, terminable with its tenure, by virtue of which a right to recovery the parking fee and tehbazari was handed over to the petitioner and under the said contract, the petitioner was supposed to recover it as an agent on behalf of the Nagar Panchayat. Based on the said agreement, thus entered into, a Deed was executed between the petitioner and Nagar Panchayat. By the action impugned in the writ petition, what had happened that initially was, that a proceeding was drawn as against the present petitioner and the same was decided by an order dated 31st October 2003, whereby the deficiency on the agreement executed in favour of the petitioner was determined as to be deficient by Rs. 20,250/-and on addition of penalty of Rs. 1000/-, it was determined to be Rs. 21,250/-.

Being aggrieved against the said order, the petitioner has preferred a Revision under Section 56 of the Act, being Stamp Revision No. 3 of 2003-04, the same has been allowed by the Revisional Court vide its judgement dated 17th December 2003, and the matter was consequently remitted back for its fresh consideration. Subsequent to the order of remand, the matter revived back for determination of an appropriate deficiency of Stamp Duty before the Assistant Commissioner, Nainital, which would be payable on the agreement as executed in favour of the petitioner by the Nagar Panchayat for the aforesaid purpose, as already referred above i.e. collection of Tehbazari and Parking fee.

On remittance of the matter and revival of the proceedings the respondent No. 3 by virtue of the impugned order dated 2nd July 2008, while exercising its power under Section 47A of the Indian Stamp Act, 1899 had determined the deficiency of the Deed as to be Rs. 16,220/-, and after including therein a penalty @ 2% per month, the total amount thus determined as payable has been levied as Rs. 41220/- which has been determined to be payable by the petitioner on the agreement of Tehbazari/Parking, which was executed between the petitioner and the Nagar Panchayat for the year 2002-03.

It is this order of Assistant Commissioner, Stamp dated 2 nd July 2008, which has been put to challenge under Section 56 of the Indian Stamp Act, 1899 by the petitioner by preferring a Stamp Revision No. 11/2007-8. The said Stamp Revision came up for consideration before the Court of Additional Commissioner, Kumaon, Nainital, who by way of the said revision being Revision No. 11(2007-08) later numbered as 35 of 2009-10, Subhash Chandra v. State of Uttarakhand. By the revision, the Revisional Court's order which is questioned before this Court that is dated 28th February 2011, the Court, after considering the implications of the Government Order No. 118/ध्वि0अनु-5@stamp/2004 dated 31st March 2004, which has provided that in all the agreements, which are for the purposes of execution of a work, they had to be valued in accordance with the Schedule 1 (kha), Article 35 of Explanation 4 of the Indian Stamp Act, 1899, which reads as under:-

"(4) The aggregate amount at which tolls are let, whether payable in lump sum or instalmemnts, shall be deemed to be premium for the purposes of this Article]."

In that view of the matter, the Revisional Court has held that even the documents or any agreement which grants a right to recover a tax or a fee is rather a conferment of a right as provided under the definition of instrument defined under the Act and thereby, the Court has held that the Deed as executed in favour of the petitioner was deficiency stamp with a total amount of deficiency of Rs. 41,220/- as per the criterion provided in the Government Order dated 31st March 2004.

Since the Revisional Court's order dated 28th February 2011, has affirmed the order of Stamp Commissioner dated 31st October 2003, the present writ petition has been preferred, challenging the two impugned orders. It is the Revisional Court's order by virtue of which it was held that in view of the entries made in Schedule 1 (kha), Explanation 4, the deed in question would be falling to be in explanation 4 of the Appendix 1 (kha) and will be amounting to Tehbazari lease and it is not a licence and as per the terms of clause 8 of the Agreement, wherein it was agreed by the respondent that in terms of condition No. 8, wherein he has agreed to meet any deficiency of the Court Fees, the Court has held that the order of Additional Commissioner, determining the liability of the deficiency was absolutely justified, but only to the extent so far it was determining the deficiency to the tune of Rs. 16,220/- and not in relation to the interest which was levied @ 2%.

Hence, while dismissing the writ petition, and thereby affirming the impugned orders so far it relates to the imposition of the deficiency and having held so that the agreement executed in favour of the petitioner was chargeable in view of the provisions contained under Section 47A itself the deficiency, the deficiency of stamp was payable by the petitioner, as determined to the tune of Rs. 16,220/- is not being disturbed at all. But, as far as levying of the interest is concerned, since that itself has been diluted by the Revisional Court's order dated 28th February 2011, it goes without saying that no interest as directed by the order of Assistant Commissioner, levying an interest at the rate of 2% on the deficient amount is hereby quashed as same being beyond the chargeable provision of Section 47A of Stamp Act which does not contemplate levying of interest, and hence the petitioner would not be liable to pay any interest on the shortage of stamp duty, as determined by the impugned orders and in order to meet up liability as fixed by the order dated 2nd July 2008, rendered by Assistant Commissioner, Stamp, the revisionist would only be liable to pay the deficiency of Rs. 16,220/- and not with the penalty by way of interest, as imposed upon him by the Revisional Court.

Consequently, the writ petition partially succeeds; only so far it relates to the imposition of the interest on the deficient amount of the stamp duty, as determined to be Rs. 16,620/-, but, however only so far as the determination is made pertaining to the deficiency of the Stamp Duty, which the petitioner was liable to pay as per agreement of Tehbazari, the same is affirmed and the petitioner is directed to pay the deficiency of Rs. 16,220/- as it has been determined by both the Courts below concurrently. The writ petition stands partially allowed only in relation to the interest the same is quashed, but it is dismissed so far it relates to the determination of the deficiency of stamp by both the courts below to the extent of Rs. 16,620/-.

However, there would be no order as to cost.