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SCA/2727020/2007 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 27270 of 2007
With
SPECIAL
CIVIL APPLICATION No. 10127 of 2007
With
SPECIAL
CIVIL APPLICATION No. 29945 of 2007
=========================================================
RELIANCE
COMMUNICATIONS LTD - Petitioner(s)
Versus
THE
COLLECTOR & ADDITIONAL SUPERINTENDENT OF STAMPS & 1 -
Respondent(s)
=========================================================
Appearance :
MR
AMAR N BHATT for Petitioner(s) : 1,
MR KB
TRIVEDI, ADVOCATE GENERAL with Ms.SANGEETA VISHEN, AGP for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1,
None
for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 21/08/2008
COMMON
ORAL ORDER
As
in all the petitions, common question arise for consideration, they
are being considered by this common order.
Special
Civil Application No.10127/07 is preferred by the petitioner for
challenging the order dated 05.02.2007 passed by the respondent No.2
therein, whereby the Stamp Duty is assessed at Rs.50/- per document
alleged agreement and also penalty at Rs.15/- per document of so
called agreement. Total amount is of Rs.3,56,53,280/-.
Mr.Dave,
learned counsel appearing for the petitioner has declared before the
Court if the petitioner is relegated to the remedy of preferring
revision, the said revision may be examined on merits by the
competent authority and the petitioner without prejudice to the
rights and contentions in the revision proceedings, shall deposit
25% of the requisite amount, subject to the outcome of the revision
proceeding.
Special
Civil Application No.27270/07 is preferred by the another Company
for challenging the order dated 12.04.2004, whereby the Stamp Duty
assessed is at Rs.60/- per alleged agreement and the penalty is at
Rs.5/- per document, total Rs.2,35,85,250/-.
Mr.Soparkar,
learned counsel appearing for the petitioner also declared that the
amount is already paid by the petitioner without prejudice to the
rights and contentions of the petitioner and the petitioner has no
objection if the petitioner is relegated to the remedy of revision,
but it was submitted by the learned counsel for the petitioner that
the revision be decided on merits and may not be dismissed on the
ground of delay.
Special
Civil Application No.29945/07 is preferred for challenging the order
passed by the respondent No.1 dated 19.10.2007, whereby after
remand, once again the Stamp Duty assessed is at Rs.50/- per
enrollment form as if alleged agreement and the penalty imposed is
of Rs.150/- per document, total Rs.3,52,00,000/-. It is an admitted
position that earlier, the respondent No.1 had passed the order for
assessment of the duty and the penalty, against which the petitioner
had preferred petition before this Court and this Court had
relegated the petitioner to the revisional authority. Thereafter,
the revision was preferred and pending the revision, 25% of the
amount was deposited by the petitioner without prejudice to the
rights and contentions in the revision. The revisional authority
ultimately had remanded the matter to the Collector, respondent No.1
herein who has decided the matter by the impugned order dated
19.10.2007 and the present petition is directed against the said
order.
Heard
Mr.Dave, Mr.Soparkar with Mr.Bhatt and Mr. Mehta, learned counsels
appearing for the respective petitioners and Mr. Trivedi, learned
Advocate General with Ms. Sangeeta Vishen, learned AGP for the State
Authorities.
It
deserves to be recorded that in all the petitions, on behalf of the
State Authorities, the affidavit-in-reply has been filed raising the
preliminary contention that there is alternative remedy of
preferring revision before the Chief Controlling Revenue Authority
of the State Government under Section 53(1) of the Bombay Stamp Act,
1958 (hereinafter the Act for short). Not only that, but on
behalf of the State Authorities, the view taken by this Court vide
order dated 17.02.2006 in Special Civil Application No. 2124/06,
which was preferred by the petitioner of Special Civil Application
No.29945/07 is pressed in service on behalf of the State Government.
It was therefore submitted that as the petitioner has an
alternative remedy of preferring revision before the Chief
Controlling Revenue Authority (hereinafter referred to as the
Revisional Autority ) this Court may not entertain the petition
and may relegate the petitioner to approach before the Revisional
Authority.
Whereas
on behalf of the petitioners, the learned counsels contended inter
alia that there is no authority to demand the Stamp Duty or compel
the production of a document which is not presented before the
authority. It was also submitted that enrollment form cannot be
termed as agreement nor can be termed as guarantee which would
attract Stamp Duty as considered by the Collector in the impugned
order. It was also submitted that the petition involving identical
question is admitted by this Court being Special Civil Application
No.9414/07, which is preferred by BSNL, another mobile service
provider Company, of course after exhausting the remedy of revision
before the competent authority. It was therefore submitted that
this Court may examine the matter by admission of the petitions or
in alternative, if this Court is inclined to relegate the
petitioners to prefer a revision before the revisional authority,
the revision may be directed to be decided on merits and the same
may not be dismissed on the ground of delay or otherwise.
As
such, various questions which may be required to be considered inter
alia that whether a document or so called agreement or enrollment
form which is not produced before any authority for its
enforceability could be compelled to be produced by the authority
under the Stamp Act for examination as to whether stamped or not and
whether the authority under the Act could compel the affixation of
the Stamp Duty or recovery of the Stamp Duty and the penalty
thereof. Further, even if the enrollment form is produced before
the authority under the Act for verification and not for its
enforceability, whether insistence for payment of the Stamp Duty can
be made by the authority under the Stamp Act is also one of the
question which deserves to be considered.
The
aforesaid is coupled with the contention of the learned counsel for
the petitioners that so called enrollment form can neither be termed
as agreement nor can be termed as guarantee or any instrument which
may attract Stamp Duty. It appears that all such aspects are not
properly considered by the Collector in the impugned order.
As
the matter is pertaining to a taxing statute, in normal
circumstances, this Court by way of self imposed restriction would
relegate the parties to the authority under the very Act by way of
inbuilt mechanism of the said statue. As in the present case, so far
as the petitioners of Special Civil Application No.29945/07 is
concerned, it has already deposited the requisite amount for
entertainment of the revision when it was earlier relegated. The
petitioners of Special Civil Application No.27270/07 has deposited
the full amount and therefore, there cannot be any additional
requirement to deposit the amount in the event the revision is to be
entertained. The petitioners of Special Civil Application No.10127,
as recorded hereinabove, has declared before the Court that without
prejudice to the rights and contentions, it is agreeable to deposit
25% of the amount in the event, it is relegated to the revisional
authority.
Under
these circumstances, it appears that if all the petitioners are
relegated to the revisional authority against the impugned orders
passed by the Collector, the same would be just and proper. It
appears that the period of 90 days is over after the impugned order
is passed, but the petitioners have preferred the petition and the
present petitions are pending before this Court. Further, this
Court in various judgements have taken the view that the provisions
of Section 5 of the Limitation Act would apply for entertainment of
the appeal under the Act after the expiry of the period of
limitation. Therefore, under these circumstances, it appears that
the delay should not operate as a bar to the petitioners in
preferring revision as various questions arise for consideration,
including the question of jurisdiction on the part of the authority
under the Act for assessment of the Stamp Duty and of imposing
penalty. Hence, it would be just and proper to direct the
revisional authority to decide the revision on merits.
In
view of the above, the following order:
The
petitioners shall be at the liberty to prefer the revision
application within a period of four weeks from today.
The
petitioner of Special Civil Application No. 10127/07 without
prejudice to the rights and contentions in the revision petition
shall simultaneously deposit 25% of the requisite amount.
However,
as the petitioner of Special Civil Application No. 27270/07, has
already deposited full amount and as the petitioner of Special Civil
Application No.29945/07 had already deposited 25% of the requisite
amount in the earlier revisional proceedings, they would not be
required to deposit any additional amount for entertainment of the
revision petitions.
The
revisional authority shall examine the matter and shall decide the
questions including certain questions which are observed and
referred to hereinabove in the present order and shall pass speaking
and reasoned order, after giving opportunity of hearing to all
concerned as early as possible, preferably within a period of three
months from the presentation of the revision petition.
Petitions
are disposed of in terms of the aforesaid directions. No order as
to costs.
(JAYANT PATEL, J.)
*bjoy
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