1. The document marked P-2 executed in 1968 was presented for registration before the Sub-Registrar , Bhimavaram on 7.3.1968 by the executants. The document calls itself a sale deed. It is drawn up on stamp papers of value of Rs. 6,525/-. The Sub-Registrar, Bhimavaram, before whom this document was presented for registration entertained a doubt about the exact stamp duty payable on the document. He therefore made a reference to the District Registrar of Assurances, Eluru. The district registers held that the said document to be a sale for consideration of Rs. 1,44,444.44 chargeable with a stamp duty of Rs. 6,525/- under Art. 20 of Schedule 1-A of the Indian Stamp act. He was also of the opinion that a transfer duty of Rs. 7,222.20 is payable under Section 120 of the Andhra Pradesh Municipalities act, 1965.
2. As the document was insufficiently stamped it was impounded by the Sub-Registrar and the District Registrar, Eluru, as Collector levied deficit stamp duty of Rs. 7,199.70 and a penalty of Rs. 50.30.
3. Aggrieved by that order Kottu Kanna rao, the purchaser preferred a revision petition to the Board of Revenue under section 56(1) of the Indian Stamp act, 1899.
4. The Board of Revenue acting as the Chief Controlling Revenue authority has made this reference under Section 57. The following question is posed in the reference :
' Whether the document No. P-2 of 1962 pending registration before the Sub-Registrar's office, Bhimavaram is one of cinema hall and machinery chargeable with surcharge under Section 120 of the A.P. Municipalities Act, 1965 in addition to stamp duty payable under Article 20 of the Schedule 1-A, of the Indian Stamp act, 1899, even though it does not involve the transfer of any right or interest in the land.
Whether the document is a simple conveyance chargeable with a stamp duty under article 20 of schedule 1-A of Indian Stamp Act, 1899.'
5. Before we deal with the said question a few more facts must be mentioned. The document purports to sell a cinema hall together with machinery for a sum of Rs. 1,44,444.44. the site on which the said cinema hall is constructed and the machinery fixed belongs to a third person. It was obtained on lease and the cinema theater was constructed thereon and the machinery was also fixed . The Sale deed merely sells the superstructure embodied in the site as well as the machinery fixed therein for the sum mentioned above. The construction on the site is stated to be Rs, 62,000 and the value of the machinery to be rupees 82,444.44. apart from selling outright the cinema hall as well as the machinery relating thereto the sale deed contains what is stated below.
6. The original sale deed is in Telugu. The following is the translation of the relevant passage given to us by the learned Government pleader, as all of us thought that the translation of the said passage which appeared in the paper book is not correct.
'We shall see that the rent chit Executed jointly by the said Sri Tenneti Krishna Murthy Garu, the owner of the site on which the theatre was constructed , and you for a period of 25 years is also registered and delivered.'
7. At one stage the reference order stated that the point for consideration is ' whether the transfer of lease which the purchasers of the cinema hall and machinery have to obtain from persons other than the executants is only a consequential action of the main transaction of sale of machinery and cinema hall in which case the transfer duty under Section 120 of the A.P. Municipalities act, 1965 has also to be levied in addition to the duty under Article 20 of Schedule 1-A of the Stamp act.'
8. But it would immediately be seen that the question actually referred for our determination does not contain anything in reference to the site on which the theatre was constructed. In order to get it out of way however we would dispose it of. Admittedly the site does not belong to the executants of the sale deed. It belongs to a third person. That third person is not a party to the sale deed. He has not sold the land to the purchaser. The vendor also does not purport to sell the lease hold rights, if any, which he has. He has merely agreed to exercise his good offices or influence to see that the lease deed which the purchaser has already got executed from the owner of the site is registered. That is neither an agreement to sell nor a conveyance. That portion of the document therefore need not confuse the two material questions, which arise for our consideration, in order to appropriately answer the question posed. The said extract of the sale deed is neither a consequential action nor has it any bearing upon the sale of the superstructure together with the machinery. Even if it had not been incorporated in the sale deed, the vendor was free to exercise his good offices or even influence on the owner of the site to get the document of lease deed, which he has already executed, registered. Mere addition of any such thing in the sale deed does not alter the real character of the document.
10. Section 2(10) of the Indian Stamp act defines the term ' Conveyance' to include ' a conveyance on sale and every instrument by which property, whether moveable or immovable, is transferrd inter vivos and which is not otherwise specially provided for by schedule I.' Even a casual reading of the said definition would disclose that a conveyance on sale is included within the definition of ' conveyance', . In order to reassure ourselves of the said conclusion it is useful, perhaps, to examine whether the sale deed is otherwise specially provided for in the schedule I of the Indian Stamp act. After going through all the articles of schedule I it became clear that there is no specific article for sale deed or in other words, a conveyance on sale. The exclusion mentioned in the latters part of the definition of conveyance therefore gets eliminated.
11. Art. 20 of the Schedule 1-A, substituted by the Stamp (Andhra Pradesh Amendment) Act states as to what stamp duty is payable on conveyance it reads :-
'20 conveyance ( as defined by Section 2(10) ) not being a transfer charged or exempted under No.53 - Where the amount or value of the consideration : One Rupee, fifty naye paisefor such conveyance as set forth therein does notexceed Rs. 50/-Where it exceeds Rs. 50/- but does not Exceed Rs. 100/- : Three RupeesWhere it exceeds Rs. 100/- but does not exceeds Rs. 100/- : Six Rupeesand for every Rs. 500/- or part thereof in excessof Rs. 1000/- : Fifteen Rupees
12. We are not concerned with the exemption provided therein as nothing turns upon the said exemption in the present case.
13. What is clear from the said article is that conveyance as defined in Section 2(10), of the Indian Stamp act, is to be charged at Rs. 15/- for every Rs. 500/- or part thereof in excess or Rs. 1000/-. Since the conveyance on sale in the present case comes within the description of that kind of document, the stamp duty on the conveyance on sale has to be paid in accordance with that provision. That the stamp duty is paid accordingly does not seem to be in dispute. It does not therefore present any difficult in concluding that the stamp duty paid upon the sale deed, in other words conveyance on the sale in the present case satisfies the requirement of Article. 20.
14. But before we finally hold that way, one has to see whether the conveyance on sale is not a transfer charged or exempted under Art. 53. That will further re assure our conclusion, because Art. 20 makes a reference to that.
15. Art. 53 of the same schedule relates to transfers, whether with or without consideration, of debentures or of any interest secured by a bond, mortgage deed or policy of insurance or of any property under the administrator generals act or of any trust property from one trustee to another. Obviously P-2 of 1968 documents does not come within the description of any one of the documents mentioned in art, 53.
16. Thus, looked at positively from the point of view of the definition of conveyance given in section 2(10). Or from the negative point of view mentioned in art,. 20, the present document is not specially provided for in schedule I. Nor do we find that the present document comes within any of the categories mentioned in art. 53 of the Schedule I -A of the act. Our concluded opinion therefore is that P-2 of 1968 is a simple conveyance on the sale coming plainly within the ambit of the definition of conveyance given in Section 2(10) attracting the stamp duty payable as stated in art. 20 of Sch. 1-A of the Indian Stamps Act.
17. The next question for our consideration is whether the section 120 of the Andhra Pradesh Municipalities Act, 1965 is attracted in the present, case. Section 120 in so far as it is relevant reads:
'120 . Method of assessment of duty on transfers of property : - The duty on transfers of property shall be levied.
(A) In the form of a surcharge on the duty imposed by the Indian Stamp act, 1899 (Central Act 2 of 1899) for the time being in the State, on every instrument on the description specified below, in respect of whole or part of the immovable property, as the case may be , situated within the limits of the Municipality, and
(b) at such rate as may be fixed by the government, not exceeding five per centum on the amount specified below against such instrument. DESCRIPTION OF INSTRUMENT AMOUNT ON WHICH DUTY SHALLBE LEVIED1) Sale of Immovable property The amount or value of the consideration for thesale, as set forth in the instrument. '
18. What all is required in order to attract Section 120 is that the instrument must be of the description specified in the said section. The very first specification is made in relation to a sale of immovable property. No one can be in about that P-2 of 1968 effectuates a sale of immovable property. The document in question therefore, falls squarely within the ambit of Section 120. A duty on such transfers of property in the form of surcharge on the duty imposed by the Indian Stamps act has to be levied at the rate determined by the government in that behalf.
19. The question of applicability of Section 120 of the Andhra Pradesh Municipalities act, 1965 to the present transaction does not depend upon whether the site on which the theatre and the machinery are located, is sold or leased out to the purchaser or not. We have already noticed that the vendors, who are the owners of the cinema Theatre and the machinery, sold that immovable property alone to the purchaser. The sale deed in question therefore is that of immovable property of the description mentioned in Section 120 of the Andhra Pradesh Municipalities Act, 1965. It would therefore, be subject to surcharge under S. 120 apart from the stamp duty already paid under Art. 20 of Sch. 1-A of the Indian Stamp Act. The contention of the petitioner before the board of revenue that ' the transaction is really a simple sale of machinery and structure on the lease hold land and should be taxed only under art. 20 of Sch 1-A of the Indian Stamp Act and that the levy of surcharge under the Andhra Pradesh Municipalities Act is illegal' seems to us to be devoid of any substance. When once he admits that the sale deed in question is a conveyance on sale coming within the purview of article 20 of Schedule 1-A of the Indian Stamp Act, then the stamp duty mentioned therein has to be paid. Why Sec. 120 because of that is not attracted surpasses our comprehension. The two things are entirely different and mutually exclusive. The purpose of stamp duty art. 20 and the relevant entries of the Indian Stamp act have to be seen. For the purpose of surcharge it is Sec. 120 of the Andhra Pradesh Municipalities act, 1965, which has to be looked into. The two need not be unnecessarily confused. The petitioner does not seem to have any reason to content that the levy of surcharge under Section 120 of the Andhra Pradesh Municipalities act, 1965 is illegal,. We are therefore satisfied that the purchaser, who submitted the document for registration, has to pay, in addition to the stamp duty under art. 20 of Sch. 1-A of the Indian Stamp Act, surcharge under section 120 as stated above.
20. Before we part with this case we would like to mention that the question referred to us in the alternative form is not appropriately posed. The first part of the question referred contains its own answer within it. Since the document P-2 of 1962 is a sale deed of cinema hall and machinery which in the nature of things is an immovable property, it chargeable with the surcharge under Section 120 of the Andhra Pradesh Municipalities act, 1965 in addition to stamp duty payable under articles 20 of schedule 1-A. We have already stated that such a stamp duty and surcharge are leviable even though the document does not involve the transfer of any right or interest in the land.
21. In that view of the mater this alternative question does not arise. The alternative question posed is :
' Whether the document is simple conveyance chargeable with stamp duty under Art. 20 of Sch. 1-A of Indian Stamp act, 1899.'
22. That it is a document coming within the purview of Art 20 seems to be at every stage a common ground. That does not however necessarily mean that because the document comes under article 20 it cannot in any case come within the purview of section 120 of the Andhra Pradesh Municipalities act, 1965. As stated above, the two things have to be separately considered and not mixed up. The alternative question in our view could not have arisen in this case at all. In any case it is a part of the first question., Since we have already decided that question in the affirmative it is not necessary further to dilate upon the said alternative question. We therefore, answer the reference by holding that the document in question is chargeable with a stamp duty under Art. 20 of Sch. I-A of the Indian Stamp act and also liable for surcharge under Section 120 of the Andhra Pradesh Municipalities Act, 1965. Government Pleader's fee Rs. 100/-.
23. Order accordingly.