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Sri Ramakrishna theatre Vs. Chief Revenue Controlling Authority - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Referred case No. 7 of 1960
Judge
Reported inAIR1962Kant266; AIR1962Mys266; ILR1962KAR396
ActsStamp Act,1899 - Sections 54(1) and 57; Mysore Stamp Act, Sections 34; Indian Stamp Act - Sections 27
AppellantSri Ramakrishna theatre
RespondentChief Revenue Controlling Authority
Appellant AdvocateA. Ranganatha Rao, Adv.
Respondent AdvocateB. Venkataswamy, Government Pleader
Excerpt:
.....by tribunal was reduced to rs. 20,000/- with interest at 8 & p.a. - 295/56 challenging the order of the assistant registrar of joint stock companies as well as of the collector, south kanara, demanding stamp duty on the document construing the same as a mortgage deed and prayed for quashing of the said orders......companies, he impounded the same and held that the document was a mortgage deed chargeable with a stamp duty of rs. 300/- under art, 33 (b) of schedule 1-a, of the indian stamp act as amended by the madras stamp act of 1922. on being called upon by the assistant registrar recorded a certificate on the document under s. 42 of the indian stamp act 1899, on 27-3-1952 as collector under the stamp act.thereafter, the executant preferred an appeal to the collector of south kanara against the order of the assistant registrar of joint stock companies and collector of stamps. the collector of south kanara entertained a doubt as to the nature of the document and the levy of stamp duty and therefore, referred the matter to the madras board of revenue which was the chief controlling revenue.....
Judgment:

Hombe Gowda, J.

(1) This reference under 54(1) of the Mysore Stamp Act ( which corresponds to S. 57 follow the Indian Stamp Act) has been made by the Chief Controlling Revenue Authority (Commissioner of Stamps in Mysore) referring certain questions raised therein for the decision of this Court under Sec 54(2) of the Act in the following circumstances: The manager Director of Sri Ramakrishna Theater, Udipi, South Kanara executed a document in favour of Canara Industrial and Banking Syndicate for a consideration of Rs. 20.000/-. The said document was drawn up on a stamp paper of Rs. 1-50. When the said document was presented before the Assistant Register of Joint Stock Companies, he impounded the same and held that the document was a mortgage deed chargeable with a stamp duty of Rs. 300/- under Art, 33 (b) of Schedule 1-A, of the Indian Stamp Act as amended by the madras Stamp Act of 1922. On being called upon by the Assistant Registrar recorded a certificate on the document under S. 42 of the Indian Stamp Act 1899, on 27-3-1952 as collector under the Stamp Act.

Thereafter, the executant preferred an appeal to the collector of South Kanara against the order of the Assistant Registrar of joint Stock Companies and Collector of Stamps. The collector of South Kanara entertained a doubt as to the nature of the document and the levy of stamp duty and therefore, referred the matter to the Madras Board of Revenue which was the chief Controlling Revenue Authority in madras. On receipt of the reference, the Board examined the document and held that the document in question was one coming under Art 33 (b) of Schedule 1-A of the Indian Stamp Act, chargeable with a duty of Rs. 600/- and directed the collector to collect a further sum of Rs. 300/- by way of stamp duty. On receipt of the opinion of the Chief Controlling Revenue Authority , the Collector passed orders directing the executant of the document to pay the deficit stamp duty of Rs. 300/- in addition to what he had already paid before the Assistant Registrar of Joint Stock Companies and dismissed the appeal.

Thereafter the executant filed a Writ Petition before the High Court of Madras in Writ Petition No. 295/56 challenging the order of the Assistant Registrar of Joint Stock Companies as well as of the Collector, South Kanara, demanding stamp duty on the document construing the same as a mortgage deed and prayed for quashing of the said orders. The High Court of Madras dismissed the Writ Petition with the observation that it was still open to the petitioner- executant to avail of the statutory remedy under the Stamp Act. In the meanwhile, the Collector took necessary steps, issued a Demand Notice and collected the additional deficient stamp duty as per his orders. Thereafter the executant of the document made an application title the Chief Revenue Controlling authority to direct the Collector to refund the stamp duty that he had illegally collected from him, treating the document as a mortgage deed and / or in the alternative, to refer the matter for the decision of the High Court under S. 57(2) order of the Indian Stamp Act.

Consequent upon the Reorganization of States, the matter was transferred to the chief Controlling Authority (commissioner of Stamps in Mysore), Bangalore. The Commissioner of Stamps in Mysore while expressing his opinion that the decision of the Board of Revenue, Government of Madras, holding that the document in question is a mortgage deed chargeable with a duty of Rs. 600/- under Art 33 (a) of Schedule 1-A of the Indian Stamp Act as amended by the Madras Stamp Act of 1922 was correct has submitted the following questions for the decision of the Court under Section 54 (1) of the Mysore Stamp Act.

(A) Whether the document in question came before the Assistant Registrar of Joint stock Companies 'in the performance of his functions' (Section 33(1)).

(B) Whether the certificate under S. 42 on the document by the Assistant Registrar of Joint Stock Companies and Collector under Stamp Act, would be a bar to re-open the question of adequacy of stamp duty levied.

(C) Whether the instrument in question cannot be held as a mortgage deed for purposes of levying stamp duty on the grounds that the instrument is not attested by 2 witness and registered as defined in S. 58 of the Transfer of Property Act, and

(d) Whether the stamp duty levied on the instrument in question held as mortgage deed under Art, 33(a) of Schedule 1-A of the Indian Stamp Act is not in order and if so, the amount of Stamp duty leviable on this document.

(2) It is clear from the above narration that the Collector of South Kanara held on the basis of the advice tendered to in by the chief Revenue Controlling Authority that the document is a mortgage deed and levied a stamp duty of Rs. 600/- He accordingly dismissed the appeal preferred by the executant of the document against the order of the Assistant Registrar of Joint Stock Companies. The question for consideration is whether in these circumstances the Commissioner of Stamps i Mysore could make the reference under S. 54 of the Mysore Stamp Act (which corresponds to S. 57 of the Indian Stamp Act) for our decision. Section 54 of the Mysore Stamp Act reads thus:

'54 Statement of case by chief controlling Revenue Authority to High Court .

(1) The chief Controlling Authority may state any case referred to it under sub-section (2) of S. 53 of otherwise coming to its notice, and refer such case, with its own opinion thereon, to the High Court .

(2)_ Every such case shall be decided by not less than three judges of the High Court and in case order difference the opinion of the majority shall prevail'.

(3) Admittedly the Collector acting under S. 31 or S. 39 or S. 40, has for made any reference with his opinion, to the decision of the Chief Controlling Authority under sub-section (A0 of S. 53. Similarly, the chief Controlling Revenue Authority did not make any reference to this Court, under S. 54 (1) on its own initiative. It is on the basis of an application made by the executant of the document that the levy and the collection of stamp duty on the document in the basis that it was in the nature of a mortgage deed was illegal, that the Commissioner of Stamps in Mysore has through it fit to make this reference. Admittedly any' case' relating to the changing of the document with stamp duty is not pending before the Collector of the Chief Controlling authority . Section 54(1) gives power to the Chief Revenue Controlling authority to state any case referred to it under S. 53(2) of otherwise coming to its notice, and refer such case, with its opinion thereon to the High Court . Section 55 deals with the power of the High /Court to call for further particulars relating to the case stated and S. 56 provides that High Court shall decide the questions raised thereby and should deliver its judgment containing grounds on which such decision is founded. Then under Sub-section (2) of S. 56 the High Court will send its judgment to the Revenue Authority by which the case was stated and the Revenue Authority shall, on receiving such copy, dispose of the case conformably to such judgment.

(4) A preliminary objection is raised by Mr. Venkataswamy the learned High Court Government Pleader. It relates to our jurisdiction to decide the reference made by the Commissioner to Stamps. We will pored to examine the same before we record our decision in merits. It is urged that the Commissioner for Stamps had no jurisdiction toi make a reference to this Court under S. 54 of the Stamp Act, and the argument is that the chief Revenue Controlling Authority having decided the matter, there was nothing pending before the contravention for Stamps and therefore, he could not make a reference under S. 54. In support of this argument Mr. Venkatswamy has placed reliance on a number of cases relating to S. 40 sub-section (2) of the Indian Stamp Act. Of the several Indian High Court . Mr. Ranganatha Rao for the executant of the document, was unable to else any decision in support of his contention that the Commissioner of Stamps is competent to make a reference to this Court under S. 54 (1) of the Mysore Stamp Act(Corresponding to S. 57 of the Indian Stamp Act) for our decision even after he has finally decided the appeal filed before him, no merits.

(5) The first case cited by Mr. Venkataswamy the learned High Court Government Pleader relates to a reference made under S. 57 of the Indian Stamp Act and the same is reported in Ref. Under Stamp Act S. 57 11, R 25 Mad 751 (SB). In the said case the Collector had determined the duty with which the instrument was chargeable thereafter, one of the parties to the document applied to the Board of Revenue for a refund of the duty and the Board referred the question title the Madras High Court. The High Court of Madras held that under S. 31 the collector had determined the duty with which the instrument was chargeable and as the determination had become final and there being to 'case' pending to be disposed of by the Revenue Authority , thereafter watan no jurisdiction to make a reference under S. 57 of the Indian Stamp Act . the Special Bench observed as follows:

'In our opinion, this is not a case which can be referred by the Revenue Authority to the High Court under S. 57 of the Act. The word 'case' as used in that section means a matter which has to be disposed of by the revenue Authorities conformably to the judgment of the High Court in the case referred to it for opinion by tge Revenue Authority (Section S. 59 sub-sec (2) of the Act). As in our opinion the point which has been referred to us is not a 'case' to which S. 57 of the Act applies we must hold that we have no power to adjudicate the matter'.

In Ref. Under Stamp Act S. 57, 11, R 25 Mad 752 (SB) which was a reference under S. 57 of the Stamp Act, the question was more elaborately considered by the Special Bench of the Madras High Court . In that case the Sub-section Registrar acting under S. 33 impounded two document and forwards them to the Collector who under S. 40(1)(a) certified that they were exempt from Stamp duty. At the instance of the inspector General of Stamp Revenue, the Board of Revenue referred the question under S. 57 of the Stamp Act to the Madras High Court . It was held by a majority of the judges the constituted the special Bench had no jurisdiction to decide the question.

The principle of the decision is that thereafter expression 'case' in S. 57 means a case that has been already finally and conclusively determined by the collector of other competent authority, and case unless the Revenue authority has still resting upon it the duty if disposing of a case. It is not intended by the Statute that it should have right to make a reference to the High Court.

(6) In refuse cook band Kelvey : AIR1932Cal736 the collocate had determined the duty under s. 31 without the case to the Chief Controlling Revenue authority . The party to the document applied to the Board of Revenue to interfere with the ruling of the Collector and the latter authority referred the matter to the High Court under s. 57 of the Act. The Calcutta High Court held that unless the revenue Authority has still resting upon a the duty of disposing of a case, thereafter would be no right to make a reference to the High Court ,as the opinion of the High Court was there by to guide it in disposing of an actual concrete Bench, observed in the course of his order as follows:

'The purpose of stating a case to the High Court and the High Court deciding the question raised thereby is entirely a practical purpose and unless the revenue authority has still resting upon it the duty if disposing of a case it is not intended by the statue that it should have a right to make a reference to the High Court. The opinion of the High Court is merely to guide in disposing of an actual concrete case. The words 'of otherwise coming to its notice' in s. 57 can only be given effect to in cases when the concluding words of S. 59 can also be given effect to Consequently the revenue authority can exercise its powers of reference, even in cases otherwise coming toi its notice, only if it has still resting upon a the duty of disposing of a case'.

To the same effect is the decision of the Allahabad High Court in Board of Revenue v. Lakshmipat Singhania, : AIR1958All417 (SB). It is not necessary to multiply the decisions in support of this principle since no decision of any High Court which has taken a contra view has been cited before us by Mr. Ranganatha Rao for the executant of the document, at whose instance this reference has been made.

The principle that emerges out, from an analysis of the decisions of the several High Courts which were cited before us, can be summarised as follows: The Board of Revenue has the power to make a reference to the High Court under S.54 of the Mysore Stamp Act (corresponding to S. 57 of the Indian Stamp Act) and that power is very wide and the Board of Revenue can exercise its powers of reference even in cases 'otherwise coming to its notice'. All that is necessary to make a reference competent is that there should be a case still pending before the Revenue Authority. The word 'case' means a matter which has to be disposed of by the Revenue Authority conformably to the judgment of the High Court . If the Collector or the Board of Revenue has decided the question, no reference can be made to the High Court by the Chief Revenue Controlling Authority under S. 57(1) of the Act.

(7) It is, therefore, clear from the above discussion that the reference made by the Commissioner of Stamps in Mysore for the decision of the question referred to in his letter of reference submitted to this Court is incompetent and this Court derives no jurisdiction to decide them.

(8) In the result, for the reasons stated above we reject the reference made to us by the Commissioner of Stamps in Mysore as being incompetent. In the circumstances of the case, there will be no order as to costs.

(9) Reference rejected.


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