The petitioner has come forward with the above Writ Petition praying for issuance of a Writ of Certiorarified Mandamus, to call for the records from the first respondent relating to his proceedings Tha.Ka.No.274/03, dated 31.10.2003 and quash the same and consequently direct the second respondent to release the document No.2540 of 2003 pending in the second respondent's office to the petitioner herein.
2. Learned counsel for the petitioner submitted that the sale deed in question was executed pursuant to the Civil Court's judgment and decree in a suit for specific performance. The second respondent registered the document/sale deed as Document No.2540 of 2003 and stated that the stamp duty has not been paid on the market value of the property as on the date of execution and hence, proceedings under Section 47-A of the Indian Stamp Act were resorted to and the document was referred to the first respondent for determination of proper stamp duty payable thereon, pursuant to which, the first respondent issued Form-1 notice under Rule 4 of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, asking the petitioner to establish that the market value of the property has been truly set forth in the sale deed and to produce evidence within 21 days from the date of service of the notice. Hence, challenging the reference under Section 47-A of the said Act, the petitioner has filed the above writ petition for the relier stated supra. In support of his submissions, the learned counsel for the petitioner relied on the decisions of this Court reported in CDJ 2017 MHC 5307 (G.Mary Chellathai and another Vs. Tamil Nadu Inspector General of Registration and Principal Revenue Authority, Office of the IG of Registration, Santhome High Road, Chennai and others), 2009 (1) CTC 305 (Division Bench of this Court) (The Government of Tamil Nadu Vs. S.Jayalakshmi) and 1997 (II) CTC 617 (Division Bench of this Court) (Padmavathi.S.P. Vs. State of Tamil Nadu).
3. Learned Government Advocate appearing for the respondents submitted that the stamp duty should have to be paid only on the market value of the property on the date of execution and hence, the impugned order is justified in law.
4. Heard both sides and perused the materials available on record.
5. In 2009 (1) CTC 305 (cited supra), it was held by the Division Bench of this Court that unless there is undervaluation of the subject matter with fraudulent intention to evade the proper payment of stamp duty, the authorities cannot impose heavy stamp duty on the party with regard to the document in question.
6. In CDJ 2017 MHC 5307 (cited supra), this Court followed the decision of the Supreme Court in the case of Residents Welfare Association, Noida Vs. State of Uttar Pradesh (2009 (14) SCC 716) in which, considering the peculiar facts of that case, the Supreme Court held that the consideration to be mentioned in the document would be the market value of the property on the date when the agreement was entered into and not when it was presented for registration.
7. In 1997 (II) CTC 617 (cited supra), the Division Bench of this Court held that mere time gap between the agreement of sale and execution of the instrument of conveyance would not enable the registering officer to invoke the provisions of Section 47-A of the Indian Stamp Act, unless there are reasons to believe that there is an attempt to deliberately undervalue the subject of transfer to evade payment of proper stamp duty.
8. It is to be stated that the Registering Officer cannot invoke the provisions of Section 47-A of the Indian Stamp Act, unless there are reasons to believe that there is an attempt to deliberately under-value the subject of transfer to evade proper stamp duty. Mere time gap between the agreement of sale and execution of instructions of conveyance, would not empower the Registrar to invoke the provisions of Section 47-A of the said Act, unless there is a lack of bona-fides or wilful under-valuation of stamp duty. This Court makes it clear that if any sale of property is done and property is conveyed by means of public auction or through the Court order, Section 47-A of the Act has no application, unless it has been established by means of proper finding by the authorities under Section 47-A that there is a suppression of fact or wilful non-disclosure of the market value or collusion even under the public auction. In the present case on hand, there are no such allegations against the petitioner. This Court, in W.P.N.35434 of 2003, by order dated 08.09.2017 has exhaustively dealt with the issue relating to Section 47-A of the Indian Stamp Act and held that wherever necessary, the documents can be returned to the parties concerned with an endorsement that the properties cannot be alienated till the issue in question, more particularly, regarding Section 47-A of the Indian Stamp Act, is decided.
9. From the above decisions, it is clear that though the Supreme Court in the said Residents Welfare Association case (cited supra) held that the market value should based on the date on which the agreement was entered into and not when it was presented for registration, in view of the decision of the Supreme Court reported in 2002 (3) SCC 533 (Padma Sundara Rao Vs. State of T.N.), in which, the Supreme Court held that the Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed, the said decision of the Supreme Court in the case of Residents Welfare Association case (cited supra), is distinguishable on facts.
10. Further, in the decision of the Supreme Court reported in 2008 (1) CTC 60 (SC) (State of Rajasthan and others Vs. Khandaka Jain Jewellers), which has been referred to in the decision of this Court reported in CJD 2017 MHC 5307 (cited supra), the Supreme Court held that the date of value on the date of the presentation of the sale deed, should be taken into account for the purpose of stamp duty.
11. Hence, it has to be held that the date of presentation of the document will have to be taken into account for the purpose of deciding the market value of the property and stamp duty in the facts and circumstances of the present case.
12. Hence, while applying the principles laid down in the above decisions, in the case on hand, the market value prevalent on the date of presentation of the document, will have to be taken into account for the purpose of determining the market value and the stamp duty.
13. Therefore, the Writ Petition is allowed. The second respondent-Sub-Registrar is directed to complete all the formalities and register and return the document in question to the petitioner within a period of one month from the date of receipt of a copy of this order. If the proceedings under Section 47-A of the Indian Stamp Act have not been concluded, then the Registrar shall return the document with an endorsement that the properties cannot be alienated till the issue regarding Section 47-A of the Indian Stamp Act, is decided. No costs.