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Collectorʹs Power to Stamp Instruments Impounded [JUDGMENT]

The Indian Stamp Act, 1899 - Sections 38 and 40 - Collectorʹs power to stamp instruments impounded - the Collector’s decision in such regard being final, upon a reference under Section 38(2) of the 1899 Act.

In the present case, since the court did not itself assess the stamp duty, the reference was obviously under Section 38(2) of the 1899 Act and the Collector was bound to act under Section 40 of the Act. Since Section 40(b) gives the Collector the discretion to award any penalty between rupees five and ten times the amount of deficit court fee, the Collector acted within her/his jurisdiction to assess the amount of deficit stamp duty without imposing maximum amount of penalty, being ten times such deficit. Since the Collector thereafter remitted the matter back to the court, the court did not have a further option to modify such assessment or impose its own penalty. The chronology and scheme of Sections 38 and 40 are amply clear as to the Collector’s decision in such regard being final, upon a reference under Section 38(2) of the 1899 Act.


The Indian Stamp Act, 1899 - Section 38 (2) - Reference - Merely because the Collector obtained an assessment from the Registrar which, in any event, is the usual mode in which such assessments are done, the character of the reference would not be altered to something else than under Section 38(2). 
The Indian Stamp Act, 1899 - Section 38 (2) - Reference - Mere non‐collection of the stamp duty by the Collector and leaving such ministerial modality to the court machinery does not ipso facto change the complexion of the reference, which could only be under Section 38(2) of the Act of 1899. 
The Stamp Act, 1899 - Sections 35, 38 and 40 - Instruments not duly stamped inadmissible in evidence - Instruments impounded how dealt with - Collectorʹs power to stamp instruments impounded. 
As such, the trial court acted palpably without jurisdiction in re‐imposing ten times penalty on the deficit stamp duty on the instrument‐in‐question, even after the Collector had exercised its discretion lawfully to dispense with the payment of ten times penalty. Hence, the impugned order dated July 16, 2018 deserves to be set aside. 
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION APPELLATE SIDE


The Hon’ble Justice Sabyasachi Bhattacharyya
24.04.2019
C.O. No. 3910 of 2018
Debdip De and another Vs. Partha Pratim Mahato and others
For the petitioners : Mr. Amitava Mukherjee, Ms. Arpita Saha
For the opposite parties : Mr. Srinjoy Das
J U D G M E N T
Sabyasachi Bhattacharyya, J.:
1. The present application under Article 227 of the Constitution of India arises from an order dated July 16, 2018 passed in a suit for specific performance of a contract, valued at Rs.2,51,00,000/‐. The petitioners filed the said suit and the trial court, upon impounding the agreement on which the suit was based, sent down the same to the Collector for assessment of stamp duty. The Collector had the same assessed and sent back a report, along with the agreement as well as the value assessed by the District Registrar, Purulia (who was authorised by the Collector to so assess), to the court. Vide Order No. 41 dated August 29, 2017, the trial Judge recorded the receipt of the report along with the other documents and fixed September 16, 2017 for the payment of actual stamp duty and registration fee.
2. Subsequently, the defendants/opposite parties filed an application for modification of the order of impoundment by directing the plaintiffs/petitioners to deposit the penalty due on the deficit stamp duty as well, which had not been awarded by the Collector. By the impugned order dated July 16, 2018, the said application of the defendants/opposite parties was allowed on contest, directing the plaintiffs to pay the deficit stamp duty of Rs.50,47,000/‐, as assessed by the Collector, along with Rs.5,04,70,000/‐ (ten times the assessed stamp duty) as penalty.


3. The plaintiffs/petitioners have challenged the said order dated July 16, 2018.
4. Learned counsel for the petitioners argues that the court, after impounding the document‐in‐question and sending the same to the Collector for assessment of stamp duty, was no longer in seisin over the matter of assessment of stamp duty and/orpenalty and acted without jurisdiction in imposing such penalty, thereby unlawfully modifying the report of the Collector.
5. It is argued that the said report was accepted by the court vide Order No. 41 dated August 29, 2017 and as such could not be modified without proper reason, as done in the impugned order.
6. It is submitted on behalf of the petitioners that the reference was one under Section 38(2) of the Stamp Act, 1899 and as such the Collector’s power pursuant to such reference was circumscribed by Section 40 of the said Act of 1899.
7. It is submitted that Section 40(b) of the said Act permitted the Collector the discretion of awarding a penalty of five Rupees or, if he thinks fit, an amount not exceeding ten times the amount of proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees. As such, the Collector had jurisdiction to award penalty according to its discretion, within the range of five Rupees to ten times the amount of deficit stamp duty.
8. The court did not retain jurisdiction after such reference, to sit in judgment over the decision of the Collector, within the periphery of the 1899 Act.
9. It is further submitted that Section 40(2) of the said Act attached finality to every certificate issued by the Collector under clause (a) of sub‐section (1) of Section 40, which, as provided in Section 40(2), would be conclusive evidence of the matters stated therein for the purposes of the 1899 Act.
10. In this context, learned counsel for the petitioners cites a judgment reported at 2002(3) CHN 151 [Biswajit Chakraborty vs. Mira Sen Ray], wherein it was held, inter alia, that the scheme of the 1899 Act provided that if the Collector receives an instrument under Section 38(2) of the said Act, he shall adopt the procedure as specified in Section 40 and that every certificate issued under Section 40(1)(a) of the Act shall be conclusive evidence for the matters stated therein. It was further observed that the court could itself impound and admit the document‐in‐question under Section 35 of the 1899 Act on payment of sufficient duty, with a penalty. However, if the party who produces such document for being admitted in evidence is aggrieved by the order of court as regards classification of the document or amount of duty and penalty assessed, it may pray to the court to send the document in original to the Collector under Section 38(2), when Section 40 would apply.
11. Learned counsel next cites a full bench judgment of the Punjab High Court reported at AIR 1966 Punjab 293 [Smt. Kamala Devi vs. The Chief Controlling Revenue Authority, Delhi], wherein it was held that a penalty on stamp duty was justified only in cases where a deliberate attempt was made by the executants to evade the payment of the proper stamp duty first by presenting them direct to the Commissioner instead of getting them registered before the presentation. It was held that the executant of a document ought not to be subjected to the maximum penalty even if the document was found to be under‐stamped, unless an attempt had been made to evade the payment of the properstamp duty by trying to disguise the true nature of the document by drafting it in misleading terms.
12. Learned counsel next cites a judgment reported at AIR 2001 SC 1321 [Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanapalle and another], wherein it was held by the Supreme Court that if the trial court finds that the instrument is insufficiently stamped, it should have asked the appellant as to whether he would remit the deficient portion of the stamp duty together with penalty amounting to ten times the deficiency. If the appellant agreed to remit the said amount, the court has to proceed with the trial after admitting the document in evidence. Only if the appellant is unwilling to remit the amount, the court is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and it was held that the Collector shall take into account all factors concerned in deciding as to what should be the proper amount of penalty to be imposed.


13. By relying on the aforesaid judgments, it is argued on behalf of the petitioners that the trial court acted without jurisdiction in re‐imposing full penalty, ten times the amount of the deficit stamp duty, without considering the factors involved, as mandated by law. Moreover, the trial court acted without jurisdiction in imposing any penalty at all, in view of the Collector having refused to do so.
14. In reply, learned counsel for the defendants/opposite parties argues that in the present case, the act of the trial court in sending the document to the Collector was not areference under Section 38(2) of the Stamp Act, 1899 but was merely to take an opinion of the Collector as regards the stamp duty to be imposed. Hence, the provisions of Section 40 were not applicable to the present case at all and the Collector had no discretion to waive the penalty on the deficit stamp duty.
15. It is argued that, even as per the judgments cited by the petitioners, the court had to give an opportunity to the petitioners first, upon assessment of stamp duty and penalty, as to whether the petitioners were agreeable to pay such amount. Only upon refusal by the petitioners to do so would the question of reference under Section 38(2) arise. Since, in the present case, no such prior option was given to the petitioners by the court on assessment of stamp duty and penalty, it could not be said that the reference was under Section 38(2) of the 1899 Act.
16. Learned counsel submits that the assessment was not even made by the Collector himself but by the District Registrar, Purulia. If the exercise was one under Section 40 of the 1899 Act, the Registrar had no authority to so assess and as such there was no assessment under Section 38(2) at all. Hence, it is argued that the court retained its jurisdiction and authority to assess the stamp duty. As per Section 38(1), if the court itself assessed the deficit stamp duty, the court was governed by Section 35, proviso (a) and would have to levy ten times of the deficit stamp duty as penalty, having no discretion to waive the payment of such penalty.
17. In this context, learned counsel cites a judgment reported at 1969 Supreme (Guj) 71 [Kantaben Jayantilal Soni vs. Ranjitlal Natverlal Soni], wherein it was held, in respect of therelevant provisions of the Bombay Stamp Act, that the Collector, in case of having assessed the stamp duty and penalty, was the authority which would collect the deficit stamp duty and penalty.
18. Learned counsel further cites a judgment reported at (2002) 10 SCC 427 [Peteti Subba Rao vs. Anumala S. Narendra] as well as a judgment reported at AIR 2010 Madhya Pradesh 158 [Umesh Kumar Prakashchandra Sharma vs. Rajaram Ramchandra Jat and anr.], in support of the proposition that Section 40 of the 1899 Act authorized the Collector to recover the duty as well as the penalty. It is the Collector who shall require the payment of proper duty together with penalty.
19. Since in the present case, the Collector did not recover the amount but the matter was relegated back to the court, it is a sure indication of the court having retained its jurisdiction to assess the stamp duty and the reference was not under Section 38(2) of the Code of Civil Procedure but a mere effort on the part of the court to have a yardstick by way of a report from the Collector to assess the proper stamp duty and penalty.
20. Upon considering the submissions of both sides, the question which falls for consideration is, whether the court below acted without jurisdiction in assessing the stamp duty and penalty itself, even after the Collector assessed the deficit stamp duty payable.
21. For this purpose, Sections 35, 38 and 40 of the Stamp Act, 1899 are relevant and are set out below:
“Stamp Act, 1899:‐ 35. Instruments not duly stamped inadmissible in evidence, etc.No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:


Provided that— (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of theGovernment or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.
… … …
38. Instruments impounded how dealt with.— (1) Where the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
... … …
40. Collectorʹs power to stamp instruments impounded.—(1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under Section 38; sub‐section (2), not being an instrument chargeable with a duty not exceeding ten naye paise only or a bill of exchange or promissory note, he shall adopt the following procedure:—


(a) if he is of opinion that such instrument is duly stamped, or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be;
(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees:Provided that, when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.
(2) Every certificate under clause (a) of sub‐section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the Collector under section 38, sub‐section (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer.
 22. Section 35 makes it mandatory for the authority which receives the evidence including the court, to admit the document in evidence only on payment of the deficit stamp duty along with ten times the amount of the proper or deficient stamp duty. There is no discretion available to the court with regard to the dispensing with of the payment of penalty. Section 38(1) envisages the court or any other authority to receive and admit the instrument‐in‐question in evidence only upon payment of a penalty as provided by Section 35 and to send to the Collector an authenticated copy of the instrument together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof and to send such amount to the Collector or to such person as he may appoint in this behalf. An assessment of the stamp duty under Section 38(1) automatically attracts Section 35, making it mandatory for the court not only to compel the party relying on the instrument to pay the further deficit court fees but ten times the amount of the deficient court fee.
23. The general tenor of the judgments cited make it apparent that the court has to give a first option to the party relying on the instrument to pay the stamp duty and penalty upon assessing the same. Generally, only upon refusal on the part of the said party to put in the amount, the matter is referred to the Collector under Section 38(2).
24. However, the said judgments do not make it mandatory in every case for the court to give the first option to the party relying on the instrument. The same is a general proposition, admitting of exceptions as well, since Section 38 itself does not contemplate any such prior opportunity to be given to the party‐in‐question.
25. In the present case, although no prior option was given to the petitioners to agree to the deficit stamp duty, such absence of option dose not ipso facto vitiate the reference under Section 38(2) to the Collector or alter the character of such reference. In any event, the petitioners, by the mere act of preferring the present challenge against the levy of penalty by the trial court, have expressed their intention not to agree to such assessment, which would necessitate a reference to the Collector under Section 38 (2) of the 1899 Act all the same. Since such an exercise has already been done in the present case, a repetition would be unnecessary and futile.
26. The scheme of the 1899 Act does not leave any scope of there being any other provision of reference, in the present context, than Section 38(2) of the said Act.
27. In the present case, since the court did not itself assess the stamp duty, the reference was obviously under Section 38(2) of the 1899 Act and the Collector was bound to act underSection 40 of the Act. Since Section 40(b) gives the Collector the discretion to award any penalty between rupees five and ten times the amount of deficit court fee, the Collector acted within her/his jurisdiction to assess the amount of deficit stamp duty without imposing maximum amount of penalty, being ten times such deficit.



28. Since the Collector thereafter remitted the matter back to the court, the court did not have a further option to modify such assessment or impose its own penalty.
29. The chronology and scheme of Sections 38 and 40 are amply clear as to the Collector’s decision in such regard being final, upon a reference under Section 38(2) of the 1899 Act.
30. Merely because the Collector obtained an assessment from the Registrar which, in any event, is the usual mode in which such assessments are done, the character of the reference would not be altered to something else than under Section 38(2).
31. From another perspective, mere non‐collection of the stamp duty by the Collector and leaving such ministerial modality to the court machinery does not ipso facto change the complexion of the reference, which could only be under Section 38(2) of the Act of 1899.
32. As such, the trial court acted palpably without jurisdiction in re‐imposing ten times penalty on the deficit stamp duty on the instrument‐in‐question, even after the Collector had exercised its discretion lawfully to dispense with the payment of ten times penalty. Hence, the impugned order dated July 16, 2018 deserves to be set aside.
33. Accordingly, C.O. No.3910 of 2018 is allowed on contest, thereby setting aside the impugned order and directing the petitioners to deposit/pay the actual stamp duty of Rs.50,47,000/‐ along with registration fees of Rs.7,93,089/‐, as directed by the trial court vide Order No. 41 dated August 29, 2017, within three weeks from date in the court below.
34. There will be no order as to costs.
35. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

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