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 Top