KOTAK MAHINDRA FINANCE LTD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS batch of three writ petitions was heard together and is being disposed of by this common judgment as the issue involved is identical arising out of similar facts.

(2.) IN Writ Petition No. 669 (1995) it is the petitioners case that they agreed to purchase from respondent No. 4 viz. Mahindra Ugine Steel Co. Ltd. the premises situated in the building known as "bakhtavar" on plot No. 229, Block No. III, Backbay Reclamation, Nariman Point, Bombay on or about 17-1-1994. The facts relating to the title of respondent No. 4 in respect of the said property have been set out in paragraph 3 of the writ petition. As per the said facts, the respondent No. 1 viz. State of Maharashtra by their letter dated 17-5-1971 invited offers to lease land bearing plot No. 225 (later renumbered as Plot No. 229) of Block III of Backbay Reclamation Scheme inter alia from Bakhtawar Construction Co. Pvt. Ltd. the builders. The builders made an offer on 22-5-1971 to take the said plot, on lease upon the terms and conditions set out in a memorandum marked Exhibit "b". The builders were put in possession and as per the offer made by the builders which was accepted by respondent No. 1, 11 plots were agreed to be leased to different parties vide Resolution dated 1-3-1972 (Exh. C ). The builders constructed the building known as "bakhtawar" on the said plot and entered into several agreements for sale of premises therein on ownership basis. By virtue of an agreement dated 31-3-1974, respondent No. 4 Mahindra Ugine Steel Co. Ltd. acquired the said premises on ownership basis from the builders. Subsequently, the holders of the several premises including the respondent No. 4 in the building known as "bakhtawar" registered themselves as a co-operative society-respondent No. 3 herein. It is petitioners case that till date no lease has been executed by respondent No. 1 in favour of respondent No. 3 co-operative society. As already indicated above, by an agreement dated 17-1-1994, the respondent No. 4 agreed to sell the said premises to petitioners for an aggregate consideration of Rs. 45 crores. It appears from the pleadings made in the writ petition that the entire purchase price was paid by the petitioners to respondent No. 4 after obtaining necessary approval from the Income-tax Authorities under Chapter XX-C of the Income-tax Act and the petitioners and respondent No. 4 filed a transfer form duly executed by the petitioners and respondent No. 4 for transfer of the said premises in favour of the petitioners. The respondent No. 3 co-operative society duly transferred the Share Certificate No. 3 (for shares bearing distinctive Nos. 11 to 15) in favour of the petitioners. It is petitioners case that on the said agreement and the transfer form, no stamp duty was affixed as there was no conveyance relating to immovable property contemplated under Entry No. 25 (b) of Schedule I of the Bombay Stamp Act, 1958. It appears that by the letter dated 21-3-1995 the respondent No. 2 viz. the Collector and Superintendent of Stamps, Bombay called upon the members of respondent No. 3 co-operative society including the petitioners to furnish to him certain data in the enclosed proforma. The requisite information was furnished by the petitioners to respondent No. 2 vide Exhibits "f" and "g" respectively. On 29-3-1995 the petitioners received demand notice calling upon them to pay the stamp duty of Rs. 4,99,99,980/- being shortfall after adjudicating Rs. 20/- as the agreement is on a stamp paper of Rs. 20/ -. The petitioners were called upon to pay a penalty of Rs. 8,99,99,960/- which was imposed on the petitioners by the said demand notice dated 29-3-1995. Accordingly, the petitioners were directed to pay the total amount of Rs. 13,49,99,940/- within 7 days from receipt of notice failing which the petitioners were informed that the said amount would be recovered as the land revenue. The said demand notice dated 29-3-1995 is impugned in the present writ petition. It appears that on 28-3-1995 the respondent No. 2 passed an order holding that the instrument in question was not properly stamped and impounded the same. By the said order, the respondent No. 2 demanded the deficit stamp duty of Rs. 4,99,99,980/- and levied penalty of twice the amount of stamp duty evaded. The said order dated 28-3-1995 (Exhibit I) is also impugned in the present writ petition.

(3.) INSOFAR as Writ Petition No. 694/1995 is concerned, it is averred by the petitioners in the writ petition that they agreed to purchase from J. Thomas and Co. , the shares of respondent No. 3 society viz. Nariman Bhavan Co-operative Society Limited bearing distinctive Nos. 131 to 135 in Share Certificate No. 27 and ancillary rights in respect of the entire premises Nos. 36, 37 and 38-A on the third floor in the building previously known as "jolly Maker Chamber No. I" and now known as "nariman Bhavan" situate at plot No. 227, Block No. III, Backbay Reclamation, Nariman Point, Bombay on 11-6-1988 for an aggregate consideration of Rs, 1,21,12,500/-, At that time the vendors J. Thomas and Co. , informed the petitioners about their title in respect of the said premises details of which have been given in paragraph 3 of the writ petition. It appears therefrom that respondent No. 1 State of Maharashtra vide letter dated 22-2-1971 agreed to allot land bearing plot No. 228 (later renumbered as Plot No. 227, Block No. III of Backbay Reclamation Scheme to Paramount Premises Ltd. (the builders ). The builders made offer on 26-2-1971 for taking the said plot on lease upon the terms and conditions set out in a Memorandum (Exhibit B ). The builders were put in possession of the said plot in the month of June 1971 and respondent No. 1 accepted the builders offer under which 11 plots were agreed to be leased to different parties and in that regard Resolution dated 1-3-1971 (Exh. C) was passed by respondent No. 1. The builders constructed building known as "jolly Maker Chamber No. I" (later on altered to Nariman Bhavan) on the said plot and the builders entered into several agreement for sale of premises on ownership basis. By virtue of agreement dated 30-11-1976 M/s. J. Thomas and Co. acquired the said premises on ownership basis. Subsequently the holders of the several premises including J. Thomas and Co. in the building known as "nariman Bhavan" registered themselves as co-operative society-respondent No. 3 herein. It is petitioners case that till date no lease has been executed by respondent No. 1 in favour of respondent No. 3 society. The respondent No. 3 society transferred the said shares in favour of the petitioners. The petitioners paid the entire purchase price to J. Thomas and Co. and also obtained necessary approval from Income-tax Authorities under Chapter XX-C of the Income-tax Act and transfer form duly executed by the petitioners and J. Thomas and Co. was forwarded to respondent No. 3 for transfer of premises. It is petitioners case that they did not affix stamp on the said agreement and transfer form as there was no conveyance relating to immovable property as contemplated under Entry No. 25 (b) of Schedule I of Bombay Stamp Act. On 15-10-1993 the Deputy Controller of Stamps (Enforcement) required the petitioners to furnish documents and information relating to the transfer of the said premises. Thereafter on 21-3-1995 the respondent No. 2 called upon the members of respondent No. 3 including the petitioners to furnish him certain data in the enclosed proforma. The said information was supplied by the petitioners. On 29-3-1995 the petitioners received demand notice informing the petitioners that the agreement dated 11-6-1988 has been impounded and shortfall of stamp duty of Rs. 12,11,190/- was demanded. A penalty of Rs. 24,22,380/- was also imposed on the petitioners. Thus, the petitioners were called upon to pay total amount of Rs. 36,33,570/ -. The said demand notice is impugned in the present writ petition. It appears that on 28-3-1995 the respondent No. 2 also passed an order holding that the instrument in question was conveyance and as proper stamp duty was not paid on the said instrument, directed the said instrument to be impounded. The petitioners were called upon by the said order to pay deficit stamp duty of Rs. 12,11,190/- and levied penalty of twice the amount of stamp duty evaded. By way of amendment, the order dated 28-3-1995 is also impugned by the petitioners.