The Judgment of the Court was delivered by
Debangsu Basak, J.:— The petitioner has assailed a memo dated December 30, 2010 issued by the Additional Registrar of Assurances, Kolkata. By such memo the registering authorities have treated the document presented by the petitioner for registration in respect of an immovable property as a conveyance and has demanded stamp duty in accordance with the market price of such property.
2. Learned Advocate for the petitioner has submitted that, the petitioner had participated in a public auction of an immovable property put up for sale by the authorized officer of the State Bank of India under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002). The petitioner was declared as the highest bidder. The sale was confirmed in favour of the petitioner. The authorized officer had issued a sale certificate in respect of the premises concerned for the total consideration of Rs. 5,30,100/- being the highest bid. The petitioner had presented a document for registration with the registering authorities. The registering authorities had initially assessed the stamp duty of such document. Thereafter, the registering authorities had changed their view and had demanded stamp duty on the basis of market value.
3. Learned Advocate for the petitioner has relied upon (2009) 7 SCC 438 (V.N Devadoss v. Chief Revenue Control Officer-cum-Inspector) and has submitted that, in view of the ratio laid down therein, the registering authorities are not entitled to the payment of stamp duty on the market value of the property concerned, as demanded by them. The registering authorities have to register the document on the basis that the stamp duty payable would be calculated on the highest bid amount. He has submitted that, the provisions of Section 47-A of the Indian Stamp Act, 1899 is not attracted so far as the document is concerned. The property was purchased by the petitioner in a public auction. The price offered in the public auction was the highest bid and, therefore, the same has to be considered as the market value of the property. The auction was held after wide spread advertisement. Therefore, the question of not declaring the actual value of the property does not arise.
4. Learned Advocate for the State has submitted that, V.N Devadoss (supra) was considered by a Larger Bench of this Hon'ble Court in 2010 Volume 3 Calcutta High Court Notes (Cal) page 651 (State of West Bengal v. Sati Enclave Pvt. Ltd.). He has submitted that, only a sale conducted by a Court is not subject to the exercise of powers by the registering authorities under Section 47-A of the Indian Stamp Act, 1899 as amended for the State of West Bengal. He has submitted that, the petitioner did not purchase the immovable property at a Court sale. Therefore, the petitioner is not exempt from the purview of Section 47-A of the Act of 1899 as well as the West Bengal (Prevention of Under-Valuation of Instruments) Rules, 2001.
5. Learned Advocate for the State has submitted that, the impugned order is appealable under Section 47-B of the Indian Stamp Act, 1899 as amended for the State of West Bengal. The petitioner having a statutory appeal available, the petitioner should be asked to avail of the same.
6. I have considered the rival submissions of the parties and the materials made available on record.
7. It appears from the pleadings that, State Bank of India had published an advertisement on January 19, 2010 inviting offers for sale of a premises. The sale proceedings was held under the provisions of the SARFAESI Act, 2002. The petitioner had participated in such public auction. He was declared as the highest bidder in respect of the property concerned for a sum of Rs. 5,30,100/-. Subsequent to the public auction, the petitioner was informed by the State Bank of India by a writing dated January 29, 2010 that the petitioner was the highest bidder. The petitioner had paid the entire consideration price. On receipt of such sale price, the petitioner was made over possession of the property.
8. The petitioner, thereafter, had applied on September 28, 2010 with the registering authorities for the purpose of ascertaining the market value of the property concerned in order to pay the stamp duty. The respondent authorities had assessed the same and had taken the market value of the property to be Rs. 5,30,100/- as declared by the petitioner. The State Bank of India had made over the draft sale certificate to the petitioner for registration on November 18, 2010. Since a period in excess of a month had elapsed from the date the registering authorities had assessed the stamp duty payable, the petitioner had made a further application for assessment of the stamp duty payable on December 2, 2010. The registering authorities, thereafter, on December 2, 2010 had treated the market value of the property to be Rs. 16,89,117/- and required appropriate stamp duty to be paid thereon. The petitioner had through its Advocate's letter dated December 28, 2010 demanded justice from the registering authorities. Such representation was considered by the registering authorities and rejected by the impugned Order dated December 30, 2010.
9. A sale of an immovable property conducted by the Assets Sale Committee constituted under the order of the Board for Industrial and Financial Reconstruction (BIFR) and Appellate Authority for Industrial and Financial Reconstruction (AAIFR) in light of the provisions of Section 47-A of the Indian Stamp Act, 1899 and the Tamil Nadu Stamp (Prevention and Under-Valuation of Instruments) Rules, 1968 had come up for consideration in V.N Devadoss (supra). The provisions of Section 47-A of the Indian Stamp Act, 1899 as applicable to the State of West Bengal and the West Bengal (Prevention of Under-Valuation of Instruments) Rules, 2001 had come up for consideration before the Larger Bench of this Hon'ble Court in Sati Enclave Pvt. Ltd. (supra). V.N Devadoss (supra) was cited and considered in Sati Enclave Pvt. Ltd. (supra). It has been held that:
“29. In view of the above discussion, our conclusions are as under:-
(1) On a correct interpretation of the provisions of Section 47A read with Section 2(16A) of the Indian Stamp Act, 1899 as applicable to the State of West Bengal and the West Bengal Stamp (Prevention of Under-valuation Instruments) Rules, 2001, the sale conducted by the Court or conducted by the Court through its officers which qualifies to be an open market sale as contemplated in Section 2(16B) of the Act cannot be the subject matter of exercise of powers by the registering authority under sub-sections (1) & (2) of Section 47A of the Act.
(2) For a Court sale to satisfy the requirements of an open market sale, the following conditions shall be satisfied:
(a) There must be wide publicity of the proposed sale and particularly there shall be publication of advertisement in at least one newspaper having wide circulation in the concerned city/town/district.
(b) The purchaser of the property must not be connected with or related to the authority/officer conducting the sale.
(3) The above conclusions will equally apply to sales conducted by the Company Court after publication of advertisement in a widely circulated newspaper.”
10. Relevant portion of Section 47-A of the Indian Stamp Act, 1899 as applicable to the State of West Bengal is as follows:-
“47A. Instrument of conveyance, etc., under-valued how to be dealt with.-
(1) Where the registering officer appointed under the Registration Act, 1908 (16 of 1906), has, while registering any instrument of-
(a) agreement or memorandum of an agreement relating to a sale or lease-cum-sale of immovable property;
(b) Conveyance;
(c) exchange of property;
(d) gift
(e) partition;
(f) power-of-attorney-
(i) when given for consideration to sell any immovable property; or
(ii) in such other cases referred to in article 48, of Schedule IA, where proper stamp duty is payable on the basis of market-value;
(g) settlement;
(h) transfer of lease by way of assignment, reason to believe that the market-value of the property which is the subject-matter of any such instrument has not been truly set-forth in the instrument presented for registration, he may, after receiving such instrument, ascertain the market-value of the property which is the subject-matter of such instrument in the manner prescribed and compute the proper stamp duty chargeable on the market-value so ascertained and thereafter he shall, notwithstanding anything to the contrary contained in the Registration Act, 1908, in so far as it relates to registration, keep registration of such instrument in abeyance till the condition referred to in sub-section
(2) or sub-section (7), as the case may be, is fulfilled by the concerned person.”
11. Relevant portion of the West Bengal Stamp (Prevention of Under-Valuation of Instruments) Rules, 2001 is Rule 3(1) is as follows:-
“3. Manner of determination of market value and furnishing of particulars relating to any property.-
(1) The market value within the meaning of clause [16(B)] of section 2 in relation to any land or any land with building shall, after taking into consideration the particulars referred to in sub-rule (2), be determined on the basis of the highest price for which sale of any land or any land with building, of similar nature and area and in the same locality or in a comparable locality, has been negotiated and settled during the five consecutive years immediately proceeding the date of execution of any instrument setting forth such market value, or on the basis of any court decision after hearing the State Government, or on the basis of information, report or record that may be available from any court or any officer or authority of the Central Government or the State Government or any local authority or local body, or on the basis of consideration stated in such instrument for such land or land with building, whichever is greater.”
12. Section 47-A of the Indian Stamp Act, 1899 as applicable in the State of West Bengal confers power on the registering officer to refuse registration of a document where he has reasons to suspect that the document presented for registration does not disclose the true market-value of the property concerned. Market value is defined in Section 2(16B) of the Act of 1899.
13. The Larger Bench in Sati Enclave Pvt. Ltd. (supra) has laid down that, the provisions of Section 47-A of the Indian Stamp Act, 1899 as applicable in the State of West Bengal is not attracted in respect of a sale conducted by a Court or through its officers. An authorized officer acting under the provision of the SARFAESI Act, 2002 cannot be said to be a “Court”.
14. Learned Advocate for the petitioner has strenuously contended that, the sale by the authorized officer was after advertisement, therefore, the sale was an open market sale of the property concerned. Such a contention made on behalf of the petitioner, if accepted, would allow any person to contend that, he has advertised the sale of an immovable property and that, the document presented for registration contains the best available price obtained by such person after such advertisement. Since the sale was advertised it has to be considered as an open sale, and that, the sale has to be accepted as an open market sale thereby taking it out of the purview of the applicability of the Undervaluation Rules, 2001. Therefore, the registering authority should not invoke Section 47A of the Act of 1899. Such a contention, if accepted, would defeat the purpose of the Act and the Rules framed thereunder. It is the evil of under-declaring the actual sale price of a property at the time of registration and, therefore, evading the actual stamp duty payable, which is sought to arrested by the introduction of Section 47A and the Rules. Accepting that such contention of the petitioner will permit unscrupulous person to evade actual stamp duty payable.
15. In the impugned Order dated December 30, 2010, the registering authorities have stated that, the property was not sold by a Court or by a Collector or a Revenue Officer and, therefore, stamp duty is chargeable. It has also noted that the earlier assessment was done on be basis of a wrong code given by the petitioner and when the correct code was given the actual stamp duty payable as stated by the registering authorities.
16. In such circumstances, I find no merit in the present writ petition. W.P No. 93 of 2011 is dismissed. No order as to costs.