VISHWA NATH AGRAWAL Vs. STATE OF U P

JUDGEMENT

(1.) On the winding up of SIDCO Leathers the properties of that company were brought to sale. The official liquidator after obtaining sanction from the Court invited tenders by public advertisement. The properties were to be sold in two lots : the first being the land and building of the company and the second plant and machinery. The bid of the petitioner being the highest Rs. 10 lacks for lot No. 1 and Rs. 45 lacks for lot No. 2 was accepted and subsequently confirmed by the Company Judge. A deed which is the subject matter of this petition styled as a certificate of sale was also executed by the official liquidator in favour of the petitioner.

(2.) Proceedings were then initiated under Section 47A of the Indian Stamp Act in respect of the 'sale certificate'. The contention of the revenue is that the instrument in question is a conveyance and duty is payable thereon under Article 23 of Schedule 1B of the Indian Stamp Act. The contention of the petitioner is that the instrument is a sale certificate within the meaning of Article 18 of Schedule 1B of the Stamp Act and is not a conveyance. The difference between the duty payable in respect of these two instruments is that in the case of a conveyance the duty is payable on the amount shown as the sale consideration in the instrument or upon the market value of the property whichever is higher whereas in the case of a sale certificate the duty is payable on the purchase money shown in the instrument itself irrespective of the market value. The Assistant Commissioner (Stamp) by his order dated 28.11.2002 held that the instrument in question was a conveyance and, therefore, dutiable under Item No. 23 and accordingly, he found the instrument deficiently stamped. The order was challenged in revision by the petitioner before the Chief Controlling Revenue Authority which by the impugned order dated 8.8.2003 has remanded the case to the Assistant Commissioner (Stamp) with the direction that the plant and machinery be valued by a technical committee.

(3.) In order to attract the provisions of Article 18 of Schedule 1B it is necessary that the property, which is the subject matter of the instrument was sold in a public auction by a Court or by an officer, authority or body empowered under law to do so. Sri R. N. Singh, learned counsel for the petitioner submitted that the sale of properties in the exercise of jurisdiction of winding up by the company Judge is a court sale- an inference, which according to him, can be drawn from Section 457 of the Companies Act and Rule 272 of the Companies (Court) Rules, 1959, which require sanction and also subsequent confirmation of the sale by the Court and under which the Court exercises control over the sale and can determine the mode of sale by public auction or by tender or otherwise and can also appoint an agent or auctioneer to conduct the sale. To examine the merits of this contention it is necessary to refer to the relevant provisions of the Companies Act. Section 457 (1) of the Companies Act provides a list of powers, which the official liquidator can exercise after sanction of the Court. One of the powers, which it confers by Clause (c) is the power to sell the property of the company. Clause (c) runs as follows :