KISHORE K SHAHANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioners are challenging the legality and validity of the order requiring the petitioners to pay stamp duty at the rate prevailing on 9-9-1992 instead of rate prevailing on 30th May, 1997 on which day the Appropriate Authority had granted no objection certificate (NOC) to the petitioners to purchase the suit flat. As far as the relevant facts are concerned, there is no dispute between the parties. On 9-9-1992 the petitioners entered into an agreement for purchase of suit flat for a price of Rs. 1 crore 80 lakhs. The petitioners and the vendors both filed 37 (i) form with the appropriate authority. By an order dated 29th November, 1992, the appropriate authority rejected the application and passed an order of compulsory purchase of the suit flat. The petitioners had challenged this order by filing a Writ Petition No. 2716 of 1992 in this Court. This Court set aside the impugned order of the appropriate authority and NOC was directed to be issued. Pursuant to the said order of this Court, the appropriate authority issued NOC on 30th May, 1997. By an order dated 6th October, 1998 the respondent No. 2 called upon the petitioners to pay stamp duty of Rs. 13,98,750/- along with penalty of Rs. 34. 40 lakhs. Thereafter, under the amnesty scheme announced by the State Government, it was declared that the persons who had not paid the stamp duty on agreements of sale would pay the same upto 30th March, 1999 with an amount of Rs. 300/- as penalty. The respondent No. 2 worked out the stamp duty of Rs. 17,40,000/- instead of Rs. 13,98,750/ -. The petitioners represented to the respondent No. 2 that the re calculated amount was erroneous as the sale of the suit flat had become final and enforceable only after issuance of NOC by the appropriate authority and, therefore, the amount of stamp duty payable would be at the rate prevalent on 30th May, 1997. It appears that the respondents did not act on the said representation and, therefore, the petitioners have approached this Court under Article 226 of the Constitution of India for issuance of appropriate order or direction to quash and set aside the order dated 22nd December, 1998 and direct the respondents to accept the stamp duty as was computed at the first instance to the tune of Rs. 13,98,750/- and penalty of Rs. 300/- under the amnesty scheme.

(2.) THE short point is the relevant point of time for the petitioners to pay the stamp duty under the provisions of Bombay Stamps Act. According to the appropriate authority, the relevant date is the date of the agreement i. e. 9th September, 1992 while according to the petitioners, it is the date of the issuance of NOC by the appropriate authority on 30th May, 1997.

(3.) SHRI Kanuga for the petitioners has submitted that the vendors and the purchasers of the suit flat had entered into an intended agreement on 9th September, 1992 whereunder a proposal was made for sale of the suit flat by the vendors to the petitioners. In the said agreement, it was clarified that the intending vendors and intending purchasers would file a statement in Form 37 (i) with the appropriate authority under Chapter XX-C of Income Tax Act, 1961 and that the transaction would take effect if and only if, approval of appropriate authority is obtained and will be carried out after NOC is granted under section 269-UL of the Income Tax Act. Shri Kanuga has pointed out that it was pertinent to note that in the said intended agreement possession of the suit flat was not transferred either before or subsequently. Shri Kanuga further pointed out that under Clause 8 of the said agreement, the intending buyers and the intending sellers had expressed specifically that the parties would execute the said deed/conveyance after the NOC is obtained and on payment of consideration of Rs. 1. 61 crores and only thereafter the possession would be handed over.