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Madras High CourtWP/15656/2002allowed

K.Muirugesanra, M.D., v. The District Registrar (Admn)

2016-01-06Honourable Mr Justice M.M.Sundresh5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 06.01.2016

CORAM

THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. No.15656 of 2002 M.S.K.Constructions [Pvt.] Limited, Rep.by its Managing Director, K.Murugesan, 869, Poonamallee High Road, Kilpauk, Chennai - 600 010.

.. Petitioner Vs.

District Registrar [Administration], Central Chennai, Chennai - 600 018.

.. Respondent PRAYER: Writ Petition has been filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records comprised in the proceedings of the respondent dated 24.04.2002 in No.8996/A4/99 and quash the same and consequently forbear the respondent from in any manner taking any action against the petitioner for collection of deficit stamp duty by invoking the provisions of Section 19-B of the Indian Stamp Act in the light of the fact that the petitioner had registered its document in a lawful manner by having recourse to Section 28 of the Indian Registration Act. For Petitioner : Mr.Rahul Balaji For Respondent : Mr.V.Subbiah Special Government Pleader

O R D E R

This Writ Petition has been filed challenging the impugned order dated 24.04.2002, by which, the petitioner was asked to pay the deficit stamp duty by invoking Section 19-B[4] of the Indian Stamp Act, 1899.

2.Before this Court alone, the mater stood adjourned on nine occasions at the instance of the learned Special Government Pleader appearing for the respondent. Unfortunately, even today there is no instructions forthcoming.

3.Learned counsel appearing for the petitioner submitted that the reliance made in the order impugned to proviso appended to Section 19-B[4] of the Indian Stamp Act, 1899 cannot be sustained in the eye of law. The reckoning of date of knowledge for computing period of four years for taking appropriate action over a document pertaining to the properties partly situated in the Tamil Nadu and partly situated in other State, namely, State of Kerala cannot be legally sustained. The said Amendment has been held to be perspective having been in force from 22.02.2003 in terms of Tamil Nadu Amendment Act, 39 of 1999. The sale deeds have been executed on 09.06.1995. Therefore, the same cannot be applied retrospectively for those transactions. Reliance has been made to the judgment of the Hon'ble Apex Court in C.J.PAUL AND OTHERS vs. DISTRICT COLLECTOR AND OTHERS reported in [2009] 14 SCC 564.

4.Learned Special Government Pleader appearing for the respondent submitted that as per Section 19-B[4] of the Indian Stamp Act, 1899, as it stand as of now, the petitioner is duty bound to pay the amount demanded in the order impugned. It is also to be noted that more than 13 years have lapsed since the filing of the Writ Petition.

5.Considering the very same issue, the Hon'ble Apex Court in C.J.PAUL AND OTHERS vs. DISTRICT COLLECTOR AND OTHERS reported in [2009] 14 SCC 564 was pleased to hold as follows: "8.The Act was enacted to consolidate and amend the law relating to stamps. Stamp duty is payable on different types of instruments as prescribed by the State. Section 19-B of the Act was inserted by Tamil Nadu Act 43 of 1992. It reads as under:

"19-B. Payment of duty on copies, counterparts or duplicates when that duty has not been paid on the principal or original instrument.- (1) Where any instrument is registered in any part of India other than the State of Tamil Nadu and such instrument relates, wholly or partly to any property situate in the State of Tamil Nadu, the copy of such instrument shall, when received in the State of Tamil Nadu under the Registration Act, 1908 (Central Act 16 of 1908), be liable to be charged with the difference of duty as on the original instrument.

(2)The difference of duty shall be calculated having regard to - (a)the extent of property situate in the State of Tamil Nadu; and (b)the proportionate consideration or value or market value of such extent of property.

(3)The party liable to pay duty on the original instrument shall upon the receipt of notice from the registering officer, pay the difference in duty within the time allowed by such registering officer.

(4)Where deficiency in duty paid is noticed from the copy of any instrument, the Collector may suo motu or on a reference from any court or any registering officer, require the production of the original instrument before him within the period specified by him for the purpose of satisfying himself as to the adequacy of the duty paid thereon, and the instrument so produced before the Collector, shall be deemed to have been produced or come before him in the performance of his functions and the provisions of Section 47-A shall mutatis mutandis apply:

Provided that no action under this subsection shall be taken after a period of four years from the date of receipt of the copy of such instrument in the State of Tamil Nadu under the Registration Act, 1908 (Central Act 16 of 1908).

(5)In case the original instrument is not produced within the period specified by the Collector, he may require the payment of deficit duty, if any, together with penalty under Section 40, on the copy of the instrument, within such time as may be prescribed."

9.We may notice that the proviso appended to Section 19-B(4) underwent an amendment insofar as in stead and place of "from the date of registration of such instrument", the words "from the date of receipt of the

copy of such instrument in the State of Tamil Nadu under the Registration Act, 1908"

were inserted. The said amendment came into force with effect from 22.2.2000 in terms of Tamil Nadu Act 39 of 1999.

10.Section 47-A of the Act was inserted in the State of Tamil Nady by Act 24 of 1967.

Indisputably, the period of limitation was two years for initiation of a proceedings thereunder. However, Section 47-A of the Act also underwent an amendment by Tamil Nadu Act 1 of 2000 which came into force with effect from 6.3.2000 whereby and whereunder the period of limitation was extended to five years.

11.The liability to pay stamp duty arises on presentation of a document. Indisputably, the registration office of the State of Kerala had the requisite jurisdiction to register the document in terms of the provisions of the Registration Act. The registration authorities of the State of Tamil Nadu came to know of the registration of the said documents on 30.3.1996 when they were filed before some authorities. In terms of the provisions of the Act, the Collector alone would initiate a proceeding for recovery of deficit stamp duty. The proceeding was initiated on 5.5.1998 but the notices were issued only on 7.6.1998.

12.The period of limitation so far as Section 47-A of the Act is concerned is two years. The limitation of period of four years was provided for in terms of the proviso appended to Section 19-B(4) of the Act but the statute which was applicable at the relevant point of time provided for invoking the period of limitation was four years from the date of registration.

13.Sections 47-A and 19-B of the Act provide for penalty. A statute of limitation conferring jurisdiction upon the statutory authorities to impose penalty must, therefore, be construed strictly. A penal statute, as is well known, unless expressly provided, cannot be given a retrospective effect. (See Ritesh Agarwal v. SEBI [(2008) 8 SCC 205]. The amendments carried out by the State of Tamil Nadu in the Act must,

therefore, be held to have a prospective operation only.

14.There cannot be any doubt whatsoever that ordinarily in a case of this nature, the date of knowledge would be the starting point for computing the period of limitation. The authorities of the State of Tamil Nadu came to know of the execution of the deeds of sale dated 1.2.1990 only on 30.3.1996. They could have initiated a proceeding, if any, within a period of two years from the said date as provided for in Section 47-A of the Act. However, in terms of Section 19-B of the Act, the period of limitation provided was four years from the date of registration and not from the date of knowledge."

6.Therefore, in terms of Section 19-B[4] of the Indian Stamp Act, 1899, period of limitation has to be reckoned from the date of registration and not from the date of knowledge by relying upon Section 19-B[4] of the Indian Stamp Act, 1899 along with this proviso. Thus, the ratio laid down in the said judgment referred to supra would be applicable to the case on hand with all force.

7.In such view of the matter, the order impugned is set aside and the Writ Petition stands allowed. No costs. Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar To The District Registrar [Administration], Central Chennai, Chennai - 600 018.

+ 1 cc to Mr. Satish Parasaran, Advocate SR.1090 W.P. No.15656 of 2002 SV(CO) EU 27.1.16