The petitioner purchased a house being House No. 193, Shakti Khand II, Indrapuram, Ghaziabad, and paid Rs. 36 lacs as the price of the House. When the sale deed was executed and registered on 18.11.2005, the petitioner paid a stamp duty of Rs. 4,82,000/-. When proceedings under Section 47A of the Indian Stamp Act, 1899, were initiated and a demand of stamp duty to the tune of Rs. 7,31,000/- was made alongwith 1.5 per cent interest to be charged monthly on 29.5.2008 then on 9.9.2008 the petitioner deposited Rs. 10,09,782/- by a banker's cheque. However, under the Indian Stamp Act, 1899, the petitioner, against the order dated 29.5.2008, also filed an appeal which came to be allowed on 15.3.2016.
The Appellate Court remanded the matter back to the Collector for a fresh adjudication which on 16.8.2016, set aside the notice sent to the petitioner and found that there was no deficiency of stamp on the instrument executed in favour of the petitioner on 18.11.2005. The allowing of the case on 16.8.2016, therefore, meant that the petitioner was to be refunded the excess amount of Rs. 10,09,782 which he had paid. When no appeal was filed against the order dated 16.8.2016, the Assistant Commissioner (Stamp) on 30.12.2016 directed for a refund of the amount of Rs. 10,09,775/-. In pursuance of the order dated 30.12.2016, on 15.3.2017 the petitioner received Rs. 10,09,775/-. However, since the petitioner had deposited Rs. 10,09,782/- on 9.9.2008 and since it was found by the order dated 16.8.2016 that the amount of Rs. 10,09,782/- was not to be deposited by the petitioner, he on 7.4.2017 applied before the Collector and Assistant Commissioner (Stamp), District - Ghaziabad, that the petitioner be paid interest on Rs. 10,09,782/- with effect from 9.9.2008 to 15.3.2017. When on this amount, the interest was not paid to the petitioner, he approached this Court by means of this writ petition and prayed that interest with effect from 9.9.2008 to 15.3.2017 be paid to him. Learned counsel for the petitioner submitted that if any amount is to be paid as deficiency in stamp duty, then interest at the rate of 1 and ½ per cent per mensum of deficient stamp duty was payable with effect from the date of execution of the instrument till the date of actual payment. But he submits that no arrangement had been made in the Act if money was to be refunded to an assessee. Learned counsel for the petitioner to bolster his case read out Section 47A (4A) of the Indian Stamp Act, 1899 and submitted that if deficiency was found due from the petitioner then till the actual date of payment, the petitioner was required to pay the interest at the rate of 1.5 per cent per mensum. He, therefore, submits that similarly if an appeal or any revision is allowed then interest should be paid to the petitioner for the period the amount was kept with the stamp authorities. Learned counsel relied on 2014 (125) RD 642 (Ansal Housing and Construction Ltd. Through its Authorised Signatory vs. State of U.P. Through Principal Secretary, Stamp and Registration, Lucknow and others) and specifically relied on paragraphs 27 to 31 and so they are being reproduced here as under:-
"27. Since, it is a regular feature that when demand is not paid by an assessee, the State Government recovers it with interest. However, when such a demand is ultimately set aside or modified and in the meantime recovery has been made in full or in part, the State Government/authorities including the appellate and revisional authority, do not award any interest on the amount of excess deposit. The State Government should have considered the matter to remove the discrimination in view of the judgment in the case of Wig Brothers (Builders and Engineers) (P) Ltd. and another Vs. Union of India and others (2003) 6 AWC 5331 (para 31 and 32) passed by the Division Bench of this Court recommending the state Government to consider to provide for payment of interest whenever there is delay in payment for whatever reasons.
28. Hon'ble Supreme Court has also held in the case of Sandvic Asia Ltd. (Supra) that such a situation is discriminatory in nature and causes great prejudice to the lacs and lacs of the assessees. In the case of Tata Chemicals Ltd. (Supra) Hon'ble Supreme Court observed that the Government, there being no express statutory provision for payment of interest on the refund of excess amount/ tax collected by the revenue; cannot shrug off its apparent obligation to reimburse the deductors lawful money with accrued interest for the period of undue retention of such monies. The State having received the money without right and having retained and used it, is bound to make the party good, just as an individual would be under the like circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest. In the case of Hari Chandra (Supra), this Court held in similar circumstances in stamp matter that payment of interest on the money retained by the State Government is necessary when the money is to be returned under the orders of the appellate or the revisional authority. It has not been shown by the respondents that the law laid down in this judgement has been reversed or modified. In this judgement, this Court directed for payment of interest @ 8 per cent per annum from the date of deposit of money till the date of actual payment.
29. In view of the above discussions, a general mandmus is also issued to the State Government and all concerned authorities to pay within three months simple interest @ 8 per cent annum on all amounts of refund of stamp duty etc. under the Act to the concerned person, for the period from the date of deposit till the date of refund.
30. In result, writ petition succeeds and is allowed as indicated above.
31. Let a copy of this order be sent by the Registrar General of this Court to the Chief Secretary, Principal Secretary Law and Principal Secretary, Tax and Registration for compliance. "
In reply, learned Standing Counsel submitted that the petitioner had on 7.2.2017 given an affidavit before the Additional Commissioner (Stamp) Ghaziabad, that if Rs. 10,09,775/- was returned to the petitioner then he would not take any interest from the Stamp Authorities. Therefore, learned Standing Counsel submitted that the petitioner was not to get any interest amount on the amount which was returned to him.
When this affidavit was placed on record by the learned Standing Counsel then the petitioner filed an affidavit stating that the affidavit was filed by him as he was pressurized by the Stamp Authorities that if he gave an affidavit to the effect that he would not take interest then they would return to him the excess amount that was payable to the petitioner after the order dated 16.8.2016 was passed. This affidavit has not been controverted. Learned counsel for the petitioner submitted that the petitioner who was all the time very nervous as to whether the excess amount which was taken from him would be returned to him or not, he had given the affidavit under pressure. Therefore, he submits that when the statute provides that interest had to be paid on any excess amount which the petitioner had to pay then the statute should be read in such a manner that the petitioner would also be paid interest on the amount which he had paid to the authorities, which he actually was not required to pay.
Having heard the learned counsel for the parties, I am of the definite view that when interest is to be paid by a person whose instrument has been found to be deficiently stamped from the date of the execution of the instrument till the actual date of payment then if it is found that wrongfully certain excess amount was taken by the Stamp Authorities then interest should be definitely paid to the assessee when the amount was being returned. Also, it is unbelievable that the petitioner must have given the affidavit of his own volition. He must have given the same when the money due to him under order dated 16.8.2016 was not being paid. The fact that Rs.10,09,775/- were paid on 15.3.2017 makes it clear that only when the affidavit was given by the petitioner on 7.2.2017 the amount of Rs. 10,09,775 paid to him.
Under such circumstances, a writ of mandamus is being issued to the Authorities to pay back the petitioner the interest which would have accrued on Rs. 10,09,782/- with effect from 9.9.2008 till 15.3.2017 at the rate of Rs. 1.5 per cent which would be calculated on monthly basis within a period of one month from the date of presentation of a certified copy of this order.
Further a general direction is also being issued to the Stamp Authorities that they should, upon finding that excess amount had to be returned, pay interest to the person from whom they had taken the amount wrongfully.
The writ petition is allowed.
Order Date :- 28.9.2018 praveen.
(Siddhartha Varma,J.)