KAUSHIK VAGHAJIBHAI PATEL Vs. SUPERINTENDENT OF STAMPS

JUDGEMENT

(1.) Following are the prayers made in para 6 of the present petition filed under Article 226 of the Constitution of India:-

(2.) The case of the petitioner, in brief, is to the effect that the petitioner was the sole beneficiary of the Trust, called G.V. Patel Trust, and a deed of transfer was executed in his favour on 4.6.2011 of the trust property without any consideration. However, inadvertently, instrument of transfer was made by using stamp of Rs. 12,26,000/- which was in excess than the stamp duty required to be paid as per the Entry in Article No.56(d) of the Bombay Stamps Act, 1958 ('the Act'). It is further case of the petitioner that when it was pointed out to him by his Tax Consultant in the month of June 2015 that stamp duty of only Rs. 100/- was required to be paid, he came to know that he committed mistake of using stamp of Rs. 12,26,000/- and even the respondent authority did point out that he paid excess stamp duty, and having come to know about such mistake, he moved an application dated 12.6.2015 seeking refund of the stamp duty, however his application came to be rejected on erroneous ground that he was entitled to refund of stamp duty under Section 44(2) of the Act. The petitioner has taken contention in the petition that if the excess duty was refundable under Section 44, his application could have been decided under Section 50 read with Section 51 of the Act. However, the respondent has completely ignored such provision which has resulted into injustice to the petitioner.

(3.) Learned advocate Mr. Dave for the petitioner submitted that in the nature of the document which was subjected to the stamp duty, the petitioner was liable to pay more than Rs. 100/- stamp duty. He submitted that when a citizen was under obligation to pay statutory duty, the respondent was equally under obligation to recover excess duty. He submitted that it was the duty of the respondent to point out to the petitioner that correct stamp duty payable was only Rs. 100/- and if such was pointed out at that very stage, another instrument could have been made on proper stamp duty and request could have been made to cancel the stamp used by the petitioner and to refund the amount of duty paid in excess. He submitted that the petitioner when came to know that under bonafide mistake, he paid excess stamp duty, he immediately moved application for refund of the stamp duty. Mr. Dave submitted that the respondent considered such application only in the context of Section 44 of the Act and rejected the application on the ground that since the stamp duty was paid pursuant to any order made, the request of the petitioner for refund could be accepted. Mr. Dave submitted that if refund was permissible under Section 44 of the Act, the respondent could have considered the application under Section 50 of the Act and in the context of the provisions made under Section 50 read with Section 51 of the Act, the power for refund of the excess stamp duty could have been exercised. Mr. Dave submitted that since the respondent has no authority to retain the stamp duty paid in excess by the petitioner, the petitioner had become entitled to refund of the excess stamp duty and therefore, his application for refund ought to have been rejected on any technical ground. He has relied on different authorities in support of his submissions.