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Simhapuri Vanijya Mandali and ors. Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petition No. 3359 of 1968
Judge
Reported in[1972]29STC225(AP)
AppellantSimhapuri Vanijya Mandali and ors.
RespondentCommercial Tax Officer and ors.
Appellant Advocate D. Sudhakara Rao, Adv.
Respondent AdvocateGovernment Pleader for Tax Cases
Disposition Petition allowed
Excerpt:
.....provision. - under these circumstances the court held that on that date the court was clearly functus officio and therefore had no power to impound the document......were affidavits falling under article 4 of schedule i-a of the indian stamp act chargeable with a stamp duty of rs. 3 and to take notice that as they were not stamped as required, they required adjudication under the provisions of the indian stamp act. it was also mentioned in the said notices that a provisional conclusion was arrived at that the documents were deficitly stamped and the deficit stamp duty and penalty are recoverable from them. the objections filed by the petitioners to the notices were rejected by the third respondent and orders were passed by him adjudicating that the documents are affidavits and that they were not stamped as required and as such deficit stamp duty should be paid with penalty thereon in each case and requested the 1st and 2nd respondents to collect the.....
Judgment:

Ramachandra Raju, J.

1. This writ petition has been filed to issue a writ of prohibition or any other appropriate writ, order or direction interdicting the respondents from recovering from the petitioners the stamp duty and penalty on the alleged affidavits filed by the petitioners in the place of 'pattis' as provided under Rule 17-A(c) of the Rules under the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as 'the Act') by declaring the same as illegal, improper and without jurisdiction. The petition was filed against (1) the Commercial Tax Officer, Nellore (East), Nellore, (2) the Deputy Commercial Tax Officer, Nellore (East), Nellore, (3) Regional Inspecting Officer (Stamps), Kurnool, and (4) the State of Andhra Pradesh. The first petitioner is a registered association of merchants of Nellore. The other petitioners are dealers registered under the Act and they were carrying on business in various commodities. They were also doing business as commission agents selling the goods on behalf of their principals. The petitioners as commission agents paid sales tax on the transactions effected by them on behalf of their principals as required under Section 11 of the Act. With regard to the transactions on which tax was paid by the commission agents, the principals would not be liable further to pay tax with regard to the same transactions once again and can claim exemption. For the purpose of claiming exemption under Rule 17-A(c) of the Rules under the Act, the principals were required to file 'pattis' (statement of accounts) issued by the commission agents certifying that they have paid the tax on the transactions effected by them for and on behalf of the principals. Rule 17-A(c) reads as follows :

The 'patti' (statement of accounts) rendered by an agent to his principal shall contain the following certificates, namely-

'Certified that the tax due on purchases/sales effected on your behalf has been/will be paid by me/us'.

2. The petitioners 2 to 27 who were involved in such transactions as commission agents and paid tax on those transactions as provided under Section 11 of the Act issued 'pattis' to their principals as provided under Rule 17-A(c) in the form of affidavits. The principals in the course of their assessment proceedings filed those affidavits before the Commercial Tax Officer, Nellore, and it appears, the Commercial Tax Officer acted on those affidavits in making the assessments of the principals. The 'pattis' in the form of affidavits were filed before the Commercial Tax Officer prior to the year 1965. Subsequently, in February, 1968, the third respondent issued notices to the petitioners calling upon them to take notice that the 'pattis' filed by them were affidavits falling under article 4 of Schedule I-A of the Indian Stamp Act chargeable with a stamp duty of Rs. 3 and to take notice that as they were not stamped as required, they required adjudication under the provisions of the Indian Stamp Act. It was also mentioned in the said notices that a provisional conclusion was arrived at that the documents were deficitly stamped and the deficit stamp duty and penalty are recoverable from them. The objections filed by the petitioners to the notices were rejected by the third respondent and orders were passed by him adjudicating that the documents are affidavits and that they were not stamped as required and as such deficit stamp duty should be paid with penalty thereon in each case and requested the 1st and 2nd respondents to collect the same if necessary by resorting to proceedings under the Revenue Recovery Act. It is under these circumstances the writ petition has been filed.

3. As per the arguments submitted by the learned counsel, appearing for the petitioners and the Government Pleader, the questions that arise for consideration are :

(1) Whether the documents in question, namely, 'pattis' are affidavits chargeable to stamp duty as provided under article 4 of Schedule I-A of the Indian Stamp Act.

(2) Whether the Commercial Tax Officer having disposed of the matters by finalising the assessments with regard to the proceedings in which the documents were filed is now competent to take action as provided) under the provisions of the Indian Stamp Act for the purpose of collecting the stamp duty and penalty on the same.

4. It cannot be doubted that the documents in question, namely, the 'pattis', mentioning the statements of accounts with regard to the sale transactions entered into by the petitioners on behalf of their principals were given as affidavits. A perusal of the documents would show that the information was given adopting the form of an affidavit, namely, the information given was solemnly affirmed and it was duly attested by persons authorised by law to attest affidavits. The learned counsel for the petitioners has argued that as per the rules under the A.P.G.S.T. Act, what is required to be filed by the principals to claim exemption is only statements of accounts generally called 'pattis' from their agents with a certificate that the tax due on the transactions effected by the agents on behalf of the principals has been paid by them and the rules do not require the filing of any affidavits by the agents and, therefore, though the 'pattis' have been given by the petitioners in the form of affidavits they cannot be treated as affidavits for the purpose of levying the stamp duty. It is true that a perusal of the relevant rules would show that they do not require the filing of 'pattis' in the form of affidavits. What is required is only a certificate from the agents mentioning that the sales tax due on the transactions has been paid by them. But that is besides the point. It may be that under the rules, the agents were not obliged to furnish 'pattis' in the form of affidavits. But when the 'pattis' in the form of affidavits were filed even though at the instance of the Commercial Taxes Department, none the less they would be affidavits and if they are affidavits, as provided under article 4 of Schedule I-A of the Stamp Act, they are liable to stamp duty of Rs. 3. The point is not whether particular information or declaration is to be given under law by means of an affidavit or not but whether the document in which it was given is an affidavit or not. For the purposes of the Stamp Act one has to look into only the contents of a document to find out its nature and whether it would be liable to any stamp duty or not and if so, to what stamp duty. It is not necessary to go into the fact, for what purpose the document was executed and whether the purpose for which the document came to be executed required the execution of a document or not or whether it requires the document in that form or not. As already stated above, the documents in question were given in the form of affidavits and they are affidavits. If that is so, irrespective of anything else they are liable to stamp duty as provided under article 4 of Schedule I-A of the Stamp Act.

5. All the documents in question were executed by the petitioners prior to the year 1965. It was alleged in the petition that the affidavits were exempted from stamp duty till 3rd December, 1965, until Act 26 of 1965 came into force and even after that by virtue of G.O. Ms. No. 604 dated 26th June, 1967, (Andhra Pradesh Government) stamp duty was not payable on affidavits. At the time of the arguments on verification this contention was not pressed. It was found that on the dates the documents were executed, the affidavits of the nature in question were liable to stamp duty as provided under article 4 of Schedule I-A of the Stamp Act. Under these circumstances, it is clear that the documents in question were liable to stamp duty and they were executed without payment of any stamp duty. Therefore, normally the liability to pay stamp duty and penalty would be attracted as provided under Section 33 of the Stamp Act.

6. But having regard to the provisions of the Stamp Act, the question for consideration is whether the Commercial Tax Officer at this stage is competent to take action for the purpose of collecting the stamp duty and penalty. Section 33 of the Stamp Act provides that all instruments not duly stamped shall be impounded by every person having by law or consent of parties authority to receive evidence and by every person in charge of a public office, except an officer of police. Proviso (a) to Section 35 of the Stamp Act says that when the stamp duty and penalty have been paid in respect of a document not duly stamped it shall be 'admitted in evidence'. Therefore, when an insufficiently stamped instrument is filed before an officer he is either to admit the document in evidence on payment of deficit stamp duty and penalty or when no such payment is made he is to impound it as provided under Section 33 of the Act. When the deficit stamp duty and penalty are paid the officer admitting the instrument certifies as provided under Section 42(1) and sends an authorised copy of such document to the Collector as provided under Section 38(1) together with a certificate in writing stating the amount of duty and penalty levied in respect thereof. But if the stamp duty and penalty are not paid the officer refuses to admit the instrument and sends the original to the Collector as provided under Section 38(2). When the document is sent to the Collector after impounding as provided under Section 40(1 )(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 and then return the document to the impounding officer. It is provided under Section 36 of the Stamp Act that where an instrument has been admitted in evidence, such admission shall not, except as provided under Section 61, be called in question at any stage of the proceedings on the ground that the instrument has not been duly stamped. Under Section 61, it is only the appellate authority that is given revisionary powers with regard to sufficiency of stamps. Once the officer before whom an insufficiently stamped instrument is filed, admits the document in evidence and acts upon it without collecting the stamp duty and the penalty or without following the procedure as mentioned above by impounding the document and sending the same to the Collector for the purpose of collecting the stamp duty, we do not think thereafter that officer will have any jurisdiction either to collect the stamp duty and penalty by himself or to impound and send it to the Collector for that purpose. Thereafter, it is only the appellate authority exercising revision powers as provided under Section 61 that has power to determine the sufficiency of the stamp duty, take action and move the Collector in the matter as provided therein. Of course, at the same time as provided under Section 36, the appellate authority has to regard the instrument as admissible in evidence. From a combined reading of the various provisions of the Stamp Act mentioned above, it appears clear that once an officer, rightly or wrongly, admits an insufficiently stamped document in evidence and acts upon it so far as that officer is concerned the matter is at an end. Either he must collect the deficit stamp duty and penalty himself or impound the instrument and send it to the Collector before he admits it in evidence and acts upon it. It would be irregular to admit and act upon it in the first instance and later on to take action for collection of stamp duty and penalty. In a recent judgment of this court dated 19th October, 1970, in C.R.P. No. 1916 of 1969 delivered by one of us (Ramachandra Raju, J.) a similar view was taken.

7. There is ample authority for this view we have taken in the decided cases of other High Courts. In Panakala Rao v. Kumaraswami A.I.R. 1937 Mad. 763 it was held that when an instrument has been admitted in evidence and judgment delivered, the court becomes functus officio and it is not thereafter open to the court to reopen the matter and impound the document. The same thing also was pointed out in the Full Bench decision, Reference under the Stamp Act, Section 46(2), (1) (1885) I.L.R. 8 Mad. 564. In that case also the levy of deficit stamp duty and penalty was sought to be made by the same court after the judgment was pronounced. While dealing with that matter, the Full Bench observed thus :

He had admitted the documents in evidence and proceeded to judgment on the 18th September and he was functus officio. When an instrument has been admitted in evidence and judgment delivered its admission can only be called in question in a proceeding under Section 50 (same as the present Section 61 of the Stamp Act). We accordingly quash the order of the 26th September.

8. The same view was taken by the Calcutta High Court in Khetra Mohan Saha v. Jamini Kanta Dewan A.I.R. 1927 Cal. 472. So also by the Special Bench of the Lahore High Court in Puran Chand v. Emperor A.I.R. 1942 Lah. 257. In that case the trial court pronounced the judgment on 30th August, 1938. On 3rd April, 1939, the court wrote an endorsement on the document that it was impounded. Under these circumstances the court held that on that date the court was clearly functus officio and therefore had no power to impound the document. In the decision Paiku Kashinath v. Gaya A.I.R. 1949 Nag. 214 during the trial of the case the documents were produced. They were exchange deeds concerning immovable property. The court did not impound these documents and proceeded to judgment which was delivered on 13th February, 1943. After this an appeal was filed and disposed of on 12th February, 1944. On 27th July, 1945, the court reopened the case to impound the documents. Under those circumstances the Nagpur High Court held that the court had no jurisdiction to reopen the case to impound the documents.

9. In the Full Bench decision, Komal Chand v. State of Madhya Pradesh A.I.R. 1966 M.P. 20 a reference was made to the High Court under Section 57(1) of the Stamp Act by the Board of Revenue as the Chief Controlling Authority for opinion on the question whether after registration of a document the registering authority can hold an enquiry regarding the value of the property covered by the deed and call upon the executant to pay the deficit stamp duty. In answering that question the Full Bench held that the power to impound an instrument can be .exercised under Section 33(1) only when the instrument is produced before the registering authorities in the performance of their functions, that is, only so long as the function is not performed or completed and not afterwards. Section 35 imposes a duty on the registering officer to examine whether an instrument presented for registration is duly stamped. This duty has to be performed before admitting the instrument to registration. It cannot be performed afterwards. Neither the Registration Act nor the Stamp Act contain any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the registering officer registers a document presented to him for registration, the function in the performance of which the document was produced before him is over and he, therefore, becomes functus officio having no power under Section 33 to impound the instrument. In the Full Bench decision, Collector, Ahmednagar v. Rambhau A.I.R. 1930 Bom. 392 of the Bombay High Court, a sale certificate granted to the purchaser by the court had only a four-anna stamp though it should have borne a stamp of eight annas. A copy of the certificate was sent to the Sub-Registrar who informed the Judge that it was insufficiently stamped. The Judge got the certificate back from the purchaser and thinking that he had power to accept the document and to impose a penalty, asked for the opinion of the High Court. In that connection, the Full Bench of the Bombay High Court held that when the certificate was presented to the Judge for the second time, he was functus officio. He could not impound it under Section 33(1) of the Stamp Act nor had he any legal authority in the exercise of his own inherent powers to recover the requisite stamp of additional value.

10. Therefore, it is clear that when the documents were produced before the Commercial Tax Officer, who without himself collecting the deficit stamp duty and penalty or without impounding the documents and sending the same to the Collector for the purpose of collecting the deficit stamp duty and penalty admits the documents in evidence and by acting on them disposes of the matters in which they were filed, thereafter he becomes functus officio and will no more have any power either to take action by himself to collect the deficit stamp duty and penalty or for that purpose impound the documents and send them to the Collector. It is not doubted that the Commercial Tax Officer had already completed the assessments in question in the proceedings relating to which the documents were filed even by the time action was taken by the 3rd respondent and requested the 1st and 2nd respondents to collect the stamp duty and penalty, if necessary, by resorting to proceedings under the Revenue Recovery Act. Also, it is not the case of the respondents either, that at that time even any appeals were pending before the 2nd respondent against the assessment orders passed by the 1st respondent.

11. Accordingly, the writ petition is allowed and a writ of prohibition will issue forbidding the respondents from recovering from the petitioners the stamp duty and penalty on the documents in question. The petitioners are entitled to their costs in this writ petition.


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