The State of Punjab and Anr. Vs Ferrous Alloy Forgings Pvt. Ltd. and Ors. - As long as the sale certificate remains as it is, it is not compulsorily registrable. It is only when the auction purchaser uses the certificate for some other purpose that the requirement of payment of stamp duty, etc. would arise.

 SCI (2024.11.19) in The State of Punjab and Anr. Vs Ferrous Alloy Forgings Pvt. Ltd. and Ors..[(2024) ibclaw.in 313 SC, Civil Appeal No. 12527 of 2024 (Arising Out of SLP(C) No. 23347 of 2014)] held that;

• The mandate of law that flows from a combined reading of Sections 17(2) (xii) and 89(4) of the Registration Act respectively is that the auction purchaser is entitled to receive the original sale certificate and a copy of the same is required to be forwarded to the Sub- Registrar for the purpose of filing in Book 1 as per the Registration Act.

• The Court further observed that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act, it has the same effect as registration and requirement of any further action is obviated.

• However, a perusal of Articles 18 and 23 respectively of the first schedule to the Stamp Act respectively makes it clear that when the auction purchaser presents the original sale certificate for registration, it would attract stamp duty in accordance with the said Articles.

• As long as the sale certificate remains as it is, it is not compulsorily registrable. It is only when the auction purchaser uses the certificate for some other purpose that the requirement of payment of stamp duty, etc. would arise.

• This Court clarified that this rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion and if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

Excerpts of the Order;

# 1. Leave granted.

# 2. This appeal arises from the judgment and order dated 28-11-2013 passed by the High Court of Punjab and Haryana in C.W.P. No.11055/2001 wherein the Writ Petition filed by the Respondent No.1 herein was allowed and the Respondent No.2 herein was directed to handover the original sale certificate to the Respondent No.1 and send a copy of the same to the Sub-Registrar under Section 89(4) of the Indian Registration Act, 1908 (in short, “the Act, 1908”). The High Court also held that the Respondent No.1 was entitled to a refund of the stamp duty deposited by it in pursuance of the order passed by the Company Judge of the High Court.

# 3. The facts giving rise to the appeal may be summarized as under.

# 4. The Company by the name M/s Punjab United Forge Limited was ordered to be wound up by the Company Judge of the High Court under the provisions of the Companies Act, 1956 (for short, “the Act, 1956”) and permission was granted to the Industrial Finance Corporation of India (IFCI) to sell the properties mortgaged with it and also the properties hypothecated with Andhra Bank. Consequently, the IFCI invited tenders for the immovable and movable assets to be put to auction wherein M/s Ferrous Alloy Forging Pvt. Limited, a sister concern of the Respondent No.1 herein, offered the highest bid and as a result the auction sale was confirmed, first by the official liquidator and later by the High Court in favour of M/s Ferrous Alloy Forging Pvt. Limited. It appears from the materials on record that thereafter the Respondent No.1 moved an application requesting for execution of the conveyance deed in its favour on the ground that the entire sale consideration was paid by it and also the Board of Directors and Chairman were the same for both the Respondent No.1 and its sister concern. The request was declined by the Company Judge of the High Court. However, the Respondent No.1 filed an appeal against the same before a Division Bench of the High Court which came to be allowed vide order dated 22.10.1997.

# 5. The materials on record further reveal that the Respondent No.1 herein filed an application under Order XXI Rule 94 of the Code of Civil Procedure, 1908 (for short, the “CPC”) for the issuance of sale certificate in its capacity as the successful auction purchaser for both the movable and immovable properties. The application came to be disposed of by the Company Judge of the High Court vide order dated 13-4-1999 taking the view that the Respondent No.1 was liable to pay the stamp duty on the immovable properties which had been put to auction which would include land, building and permanently affixed machinery thereto. It further directed that although the immovable properties which were put to auction were to be included in the certificate of transfer, their value would be excluded for the purpose of computation of stamp duty. The High Court directed the Respondent No.1 to file an affidavit to this effect and pay the requisite stamp duty.

# 6. In pursuance of the order referred to above passed by the High Court, the Respondent No.1 submitted an additional affidavit of the movable assets purchased by the auction purchaser at Rs.54.67 lakhs. However, when the matter was taken up by the Registrar, he took the view that stamp duty had to be paid on Rs. 2.25 crore which was the valuation of the immovable properties as offered in the tender. The Respondent No.1 was, accordingly, directed to pay stamp duty on Rs.2.25 crore for the sale certificate to be issued in its favour.

# 7. The directions issued by the Registrar were challenged by the Respondent No.1 by way of a Writ Petition for being in derogation of Section 17 (2)(xii) of the Registration Act read with Rule XXI Order 94 of CPC. The Division Bench of the High Court formulated the following question of law for its consideration.

“Whether a sale certificate issued in pursuance to a Court’s auction is required to be stamped”

# 8. In other words, according to the High Court, the controversy revolved around the interplay of the Registration and Stamp Acts, i.e., although a sale certificate is undoubtedly not compulsorily registrable yet is it mandatory for the auction purchaser to deposit the stamp duty for the sale certificate to be issued to it in view of the provisions of the Stamp Act.

# 9. The Writ Petition came to be allowed by way of the impugned order wherein the High Court took the view that there was no occasion for fixation of stamp duty at the time of issuance of the sale certificate and the Registry of the High Court was only required to issue the sale certificate and send a copy of the same to the Sub-Registrar in accordance with the mandate contained in Section 89(4) of the Registration Act. The High Court further observed that whether the certificate is to be stamped or not would be the responsibility of the successful auction purchaser.

# 10. The appellant herein also raised an objection before the High Court that as the Respondent No.1 had not challenged the order of the Company Judge dated 13-4-1999, the same had attained finality and the directions of the Registrar being in consonance with the said order, the same could not have been challenged by way of a writ petition. The High Court rejected the said objection and held that in view of the limited ambit of the controversy, it thought fit to consider them in the writ proceedings.

# 11. In view of the above, the High Court directed that the original sale certificate be handed over to the Respondent No.1 and a copy of the same be sent to the Sub-Registrar under Section 89(4) of the Registration Act. It further directed that the stamp duty deposited by the Respondent No.1 be refunded within a period of one month.

# 12. Aggrieved by the aforesaid, the State of Punjab is in appeal before us.

# 13. The short question that falls for our consideration in this appeal is whether it is mandatory for the successful auction purchaser to deposit the stamp duty for the sale certificate to be issued to it in view of the provisions of the Stamp Act and the Registration Act.

# 14. This Court in Municipal Corporation of Delhi v. Pramod Kumar Gupta reported in AIR 1991 SC 401, after examining the relevant provisions of Order XXI of the Code of Civil Procedure, observed that the title to the property put on auction sale passes under the law when the sale is held. The owners and certain other interested persons are afforded opportunity under the CPC to assail the sale and make a prayer for setting aside the sale on certain enumerated grounds. However, once such objections are disposed of without disturbing the sale, the sale stands confirmed under Order XXI Rule 92 of the CPC. Thereafter, the sale certificate is issued under Order XXI Rule 94. The Court observed that this chronology of events made it clear that the transfer becomes final when an order under Rule 92 of Order XXI is made and the issuance of a sale certificate under Rule 94 is only a formal declaration of the effect of such confirmation. Such issuance of certificate does not create or extinguish any title and thus would not attract any stamp duty which is applicable qua an instrument of sale of immovable property.

# 15. In Smt. Shanti Devi L. Singh v. Tax Recovery Officer and Others reported in AIR 1991 SC 1880, this Court observed that since the certificate of sale is not a compulsorily registrable document in lieu of Section 17(2)(xii) of the Registration Act, the transfer of title in favour of the auction purchaser would not be vitiated on account of non-registration of the sale certificate.

# 16. In B. Arvind Kumar v. Govt. Of India and Others reported in (2007) 5 SCC 745, this Court observed that when a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction-purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. Although in the said case, the sale certificate was registered yet this Court proceeded to observe that a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non-testamentary documents which require registration under sub-section (b) and (c) of Section 17(1) of the said Act.

# 17. The position of law is thus settled that a sale certificate issued to the purchaser in pursuance of the confirmation of an auction sale is merely evidence of such title and does not require registration under Section 17(1) of the Registration Act. It is not the issuance of the sale certificate which transfers the title in favour of the auction purchaser. The title is transferred upon successful completion of the sale and its confirmation by the competent authority after all the objections against the sale have been disposed of.

# 18. Recently, a three-Judge Bench of this Court in M/s Esjaypee Impex Private Limited v. The Asst. General Manager and Authorized Officer Canara Bank reported in (2021) 11 SCC 537 observed that the mandate of law that flows from a combined reading of Sections 17(2) (xii) and 89(4) of the Registration Act respectively is that the auction purchaser is entitled to receive the original sale certificate and a copy of the same is required to be forwarded to the Sub- Registrar for the purpose of filing in Book 1 as per the Registration Act.

# 19. In Inspector General of Registration and Another v. G. Madhurambal and Another reported in 2022 SCC Online SC 2079, a two-Judge Bench of this Court observed that the consistent position of law is that a certificate of sale cannot be regarded as a conveyance subject to stamp duty. The Court further observed that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act, it has the same effect as registration and requirement of any further action is obviated.

# 20. The position of law discussed above makes it clear that sale certificate issued by the authorised officer is not compulsorily registrable. Mere filing under Section 89(4) of the Registration Act itself is sufficient when a copy of the sale certificate is forwarded by the authorised officer to the registering authority. However, a perusal of Articles 18 and 23 respectively of the first schedule to the Stamp Act respectively makes it clear that when the auction purchaser presents the original sale certificate for registration, it would attract stamp duty in accordance with the said Articles. As long as the sale certificate remains as it is, it is not compulsorily registrable. It is only when the auction purchaser uses the certificate for some other purpose that the requirement of payment of stamp duty, etc. would arise.

# 21. We also do not find any force in the contention of the appellant that the High Court should not have exercised its writ jurisdiction under Article 226 as Respondent no. 1 had an alternate efficacious remedy of filing an appeal against the order of the Company Judge in pursuance of which directions came to be passed by the Registrar. This Court in Radha Krishan Industries v. State of H.P. reported in (2021) 6 SCC 771 observed that an alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. It was held that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. However, this Court clarified that this rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion and if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

# 22. In view of the aforesaid, the appeal fails and is hereby dismissed.

# 23. Pending application(s), if any, shall also stand disposed of.

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Inspector General of Registration & Anr. v. Madhurambal & Anr. - that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act, it has the same effect as registration and obviates the requirement of any further action.

Supreme Court (11.11.2022) In Inspector General of Registration & Anr. v. Madhurambal & Anr. [ SLP(C) 16949/2022 ] held that;

• that a certificate of sale cannot be regarded as a conveyance subject to stamp duty,

• that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of Act III of 1877 and is not compulsorily registrable.

• that the mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the Authorised Officer of the Bank under the SARFAESI Act to hand over the duly validated Sale Certificate to the Auction Purchase with a copy forwarded to the Registering Authorities to be filed in Book I as per Section 89 of the Registration Act 

• that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act, it has the same effect as registration and obviates the requirement of any further action.

Excerpts of the order; 

Learned counsel for the petitioner(s) has made a valiant endeavor to persuade us to interfere with the impugned judgment(s) but not successfully. It is logically so as this issue has been repeatedly settled and if one may say, a consistent view followed for the last 150 years. We may refer to the judgments by the Madras High Court in the Board of Revenue No.2 of 1875 (In Re: Case Referred) dated 19.10.1875 opining that a certificate of sale cannot be regarded as a conveyance subject to stamp duty, by the Allahabad High Court in Adit Ram v. Masarat-un-Nissa [Manu/UP/0089/1883] opining that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of Act III of 1877 and is not compulsorily registrable and this Court’s view in Esjaypee Impex Pvt. Ltd. v. Asst. General Manager and Authorised Officer, Canara Bank [(2021) 11 SCC 537] opining that the mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the Authorised Officer of the Bank under the SARFAESI Act to hand over the duly validated Sale Certificate to the Auction Purchase with a copy forwarded to the Registering Authorities to be filed in Book I as per Section 89 of the Registration Act and order of this Court  in M.A. No.19262/2021 in SLP(C) No.29752/2019 dated 29.10.2021 opining that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act, it has the same effect as registration and obviates the requirement of any further action. It is time that the authorities stop filing unnecessary special leave petitions only with the objective of attaining some kind of a final dismissal from this Court every time. Costs this time has been spared but will not be spared the next time.

The needful be done in terms of the impugned judgment(s) within 15 days from today.

The special leave petitions are dismissed. 

Pending applications stand disposed of.

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M/s. Anirudh Agro Farms Pvt. Ltd. Vs. The State of Telangana - Supreme Court has held that law on this point is well settled that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of the Registration Act;

 High Court of Telangana (04.04.2023) In M/s. Anirudh Agro Farms Pvt. Ltd. Vs. The State of Telangana [Writ Appeal No.414 of 2023] held that;

• Supreme Court has held that law on this point is well settled that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of the Registration Act;

• Supreme Court has further opined that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authority to be filed in book No.1 as per Section 89 of the Registration Act, it has the same effect as registration and obviates the requirement of any further action.

Excerpts of the order; 

JUDGMENT: (Per the Hon’ble the Chief Justice Ujjal Bhuyan) Heard Mr. Avinash Desai, learned Senior Counsel for the appellant and Ms. A Chandana, learned Government Pleader for Stamps and Registration representing respondent Nos.1 to 4.

# 2. This appeal is directed against the order dated 09.03.2023 passed by the learned Single Judge in I.A.No.1 of 2023 in W.P.No.6033 of 2023, rejecting the interlocutory application filed by the appellant as the writ petitioner for interim relief.

# 3. Before we advert to the order of the learned Single Judge dated 09.03.2023, we may mention that the borrower i.e., the corporate debtor- M/s. Priyadarshini Spinning Mills Limited had defaulted in repayment of dues to the corporate creditor whereafter the corporate creditor instituted Corporate Insolvency Resolution Process (CIRP) before the National Company Law Tribunal (NCLT) under the Insolvency and Bankruptcy Code, 2016 (briefly ‘IBC’ hereinafter) for liquidation of fixed assets, which were mortgaged by the corporate debtor with the corporate creditor while availing the financial assistance.

# 4. By the order dated 03.09.2019, NCLT initiated CIRP proceedings against the corporate debtor whereafter respondent No. 5 was appointed as liquidator vide the order dated 26.04.2021. Liquidator issued e-auction sale notice on 11.08.2021 for auctioning the fixed assets of the corporate debtor. In the e-auction which took place pursuant to such notice, appellant had participated and emerged as the highest bidder. This was communicated by the liquidator to the appellant vide the letter dated 27.08.2021. Following the same, appellant deposited the entire bid amount of Rs.49,92,08,000.00. Thereafter, liquidator issued a certificate of sale dated 25.10.2021 in favour of the appellant under Section 35(1)(f) of IBC r/w Regulations 32 and 33 of Insolvency Bankruptcy (Liquidation Process) Regulations, 2016 and handed over the auctioned property to the appellant. In other words, appellant was put in possession of the auctioned property.

# 5. Thereafter, liquidator issued a letter to the Sub-Registrar/respondent No. 4 on 16.02.2023 to record and file the  certificate of sale dated 25.10.2021 in book No.1 available in the office of respondent No. 4 as the appellant was the successful e-auction purchaser of the auctioned property. However, by the letter dated 25.02.2023, respondent No. 4 declined to do the needful on the ground that there is no practice of filing certificate of sale of this nature in his office and also on the ground that such filing would attract stamp duty at par with sale under Article 47-A of the Indian Stamp Act, 1899. This intimation came to be challenged before the learned Single Judge in W.P.No.6033 of 2021 wherein I.A.No.1 of 2023 was filed seeking an interim direction to respondent No. 4 to record and file the copy of certificate of sale dated 25.10.2021 in book No.1 maintained in his office.

# 6. Learned Single Judge declined to grant the interim relief sought for and dismissed the interlocutory application. However, liberty was granted to the appellant to pay the requisite stamp duty and approach respondent No.4 thereafter. Relevant portion of the order of the learned Single Judge dated 09.03.2023 passed in I.A.No.1 of 2023 in W.P.No.6033 of 2023 reads as under:

• There is no dispute that a sale certificate is required to be taken on record by the registering authorities in terms of Section 89 of the Act, 1908 and the law laid down by the Hon’ble Apex Court to that extent is also a settled legal position. If that is only reason assigned by the fourth respondent while issuing the impugned letter, this Court would have passed appropriate interim orders in the matter. But, in the instant case, the fourth respondent also expressed his view that the sale certificate, which is sought to be placed on record is to be treated as conveyance under Section 47 of the Act, 1899 and stamp duty need to be paid. Admittedly, no stamp duty is paid in respect of sale certificate in question.

• No doubt, under Section 89 of the Act, 1908, the fourth respondent is duty bound to take up the sale certificate on record. Whether the sale certificate forwarded by the Official Liquidator will fall within the purview of Section 89 of the Act, 1908, or not is a matter to be considered by this Court at the time of final hearing. None of the judgments relied upon by the learned Senior Counsel dealt with the aspect of deficit stamp duty or non-payment of stamp duty on the sale certificates under Section 89 of the Act, 1908. The request of the fifth respondent to record the sale certificate dated 25.10.2021 under Section 89 of the Registration Act, 1908 (“the Act, 1908” for brevity) was negatived by the fourth respondent through the impugned letter dated 25.02.2023. Besides the reason that there is no practice of filing certificate of sales of this nature in his office, the fourth  respondent also informed the fifth respondent that the same would attract stamp duty on par with sale under Article 47A of the Indian Stamp Act, 1899 (“the Act, 1899” for brevity).

• On being queried by this Court, learned Senior Counsel for the petitioner fairly submitted that none of the judgments relied upon by him deal with the aspect of stamp duty and also the effect of Section 33 of the Act, 1899.

• Section 33 of the Act, 1899 requires the registering authorities to collect the stamp duty as and when such documents are brought to their notice. Here is a case where a sale certificate, which has the effect of conveying title in favour of the certificate holder over an immovable property is brought to the notice of the fourth respondent by way of sending the same to him to place the same on record under Section 89 of the Act, 1908. The fourth respondent, having received the same found that the same need to be stamped as a conveyance deed under Section 47 of the Act, 1899, thus discharged his obligation under Section 33 of the Act, 1899.

• Therefore, this Court is not inclined to grant the interim relief as sought for in this interlocutory application, as the same would amount to granting the main relief in the Writ Petition and also for the reason that the issue as to whether the stamp duty is liable to be paid on the sale certificate in question or not is a serious matter dealing with revenue of the Government, is required to be considered by this Court after the counter affidavit is filed by the respondents.

• The submission of the learned Senior Counsel for the petitioner that the impugned sale certificate in question can be taken on record without insisting for payment of stamp duty subject to the result of the Writ Petition also does not require consideration, as this Court prima facie felt that the fourth respondent rightly discharged his obligation under Section 33 of the Act, 1899. In the light of the above, this application is dismissed. However, in case if the petitioner so desires, he is at liberty to pay the requisite stamp duty treating the same as conveyance and approach the fourth respondent for taking the same on record under Section 89 of the Act, 1899. In case, if the petitioner deposits the stamp duty that is payable as above and approaches the fourth respondent, the fourth respondent shall take the same on record under Section 89 of the Act, 1899 and comply with the other formalities.

# 7. Section 89 of the Registration Act, 1908 (briefly ‘the Registration Act’ hereinafter) deals with copies of certain orders, certificates and instruments to be sent to registering officers and filed. As per sub-section (4) thereof, every revenue officer granting a certificate of sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction, the whole or any part of the immovable property comprised in the certificate is situated and such officer shall file the copy in his book No.1 or get it scanned.

# 8. The above provision was analyzed by a learned Single Judge of the Madras High Court in Shree Vijayalakshmi Charitable Trust v. Sub-Registrar1. In that case also, sale certificate was sent by the official liquidator of the court to the office of the Sub-Registrar to file the same in book No.1 as per Section 89 of the Registration Act. However, the Sub-Registrar took the view that stamp duty was not paid and accordingly demanded deficit stamp duty to be paid. After examining the provisions of Section 51 of the Registration Act which deals with the books to be kept in registration offices and various other provisions, it has been held that when an instrument is not submitted for registration and is being sent to the Registrar only for the purpose of filing in book No.1, it does not attract any stamp duty; for registration, stamp duty is must whereas for filing, no stamp duty is necessary.

# 9. Learned Government Pleader has placed before us a copy of the order dated 11.11.2022 passed by the Supreme Court in Inspector General of Registration. v. Madhurambal2 wherein assailing a similar order, special leave petition was filed before the Supreme Court. While dismissing the special leave petition, Supreme Court has held that law on this point is well settled that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of the Registration Act; the authorized officer of the bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (briefly ‘SARFAESI Act’ hereinafter) should hand over the duly validated sale certificate to the auction purchaser with a copy forwarded to the registering authority to be filed in book No.1 as per Section 89 of the Registration Act. Supreme Court has further opined that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authority to be filed in book No.1 as per Section 89 of the Registration Act, it has the same effect as registration and obviates the requirement of any further action. Supreme Court has observed that the authorities should stop filing unnecessary special leave petitions on this issue.

# 10. In view of above, we are of the opinion that the interim relief sought for by the appellant is required to be considered. We accordingly direct, as an interim measure, that respondent No.4 shall file the sale certificate dated 25.10.2021 in book No.1 maintained in his office, which shall be subject to outcome of the writ petition.

# 11. This disposes of the writ appeal. No costs. As a sequel, miscellaneous petitions, pending if any, stand closed.

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M/s Chirag & Company Pvt. Limited Vs. Additional Deputy Commissioner-cum-Collector - We have not the slightest hesitation in upholding the view that the provision of Section 47A of the Act cannot be said to have any application to a public auction carried out through court process/receiver as that is the most transparent manner of obtaining the correct market value of the property.

 HC Chandigarh(23.03.2023) In M/s Chirag & Company Pvt. Limited  Vs. Additional Deputy Commissioner-cum-Collector [CWP No. 12818 of 2022 (O&M)] held that;

• Ordinarily, in a transaction of immovable property by transfer or exchange or partition or gift etc. where the transferor is State or public authority, the provisions of Section 47-A of the Act would not be attracted as in such transactions, undervaluation may not be involved and there is no deliberate attempt to defraud the State Exchequer of its revenue. 

• It must be kept in mind that at times public auctions do not always reflect the correct market value and may be by way of distress sale as well. It is not always necessary that a public auction would in all circumstances fetch the market value or be sold at the collector’s rate as fixed.

• Court held that once the sale is effected by an authorized officer under SARFAESI Act by making wide publication in the widely circulated newspapers, shall be regarded as the open market sale and, therefore, the registering authority cannot have any reason to believe that the sale price has been shown under-valued having not sold in the open market.

• We have not the slightest hesitation in upholding the view that the provision of Section 47A of the Act cannot be said to have any application to a public auction carried out through court process/receiver as that is the most transparent manner of obtaining the correct market value of the property.

• An auction of a property is possibly one of the most transparent methods by which the property can be sold. Thus, to say that even in a court monitored auction, the Registering Authority would have a say on what is the market price, would amount to the Registering Authority sitting in appeal over the decision of the Court permitting sale at a particular price.

Excerpts of the order; 

# 1. The petitioner by way of instant writ petition seeks quashing of the letter dated 12.4.2021 (Annexure P/5) and order dated 6.10.2021 (Annexure P-15), vide which the petitioner has been directed to pay difference of `51,95,243/- on account of deficiency in stamp duty.

# 2. The facts as enumerated in the writ petition are that on 14.8.2015, a company known as M/s Montari Industries Ltd. was ordered to be wound up by this High Court in Company Petition No. 83 of 2010 and an Official Liquidator was appointed. Thereafter, for sale of the movable and immovable properties of the said company i.e. land, building, machinery etc., a sale notice was published in the Indian Express dated 28.12.2016 (P-1). The petitioner was a successful bidder as it had given the highest bid for the properties. Thereafter, Official Liquidator filed a Company Application No. 35 of 2017 in the High Court seeking confirmation of sale of movable and immovable properties in favour of the petitioner being the highest bidder, which was allowed, vide order dated 2.6.2017 (P-2). The petitioner received letter dated 9.2.2021 (P-3) from the Official Liquidator to complete the formalities as per the requirement of the revenue authorities and inform them of the schedule for execution of the sale deed. Consequently, necessary papers for execution of sale deed were presented to Sub-Registrar Balachaur and the sale deed was executed on 12.4.2021 (P-4) and stamp duty of `33,13,200/- was paid on 7.4.2021 by the petitioner in respect of sale consideration of `5,52,20,000/- for land and the building in terms of the price fixed and approved by this Court. However, the Sub-Registrar, Balachaur—respondent No.3 vide communication dated 12.4.2021 (P-5) itself referred the matter to the Additional Deputy Commissioner, SAS Nagar, under Section 47-A of the Indian Stamps Act, 1899 (for short “the Act”), depicting deficiency of the stamp duty and registration fee committed in execution of the sale deed.

# 3. It is alleged that since nothing was heard from the respondents for more than three months after the matter was referred by respondent No. 3 to respondent No.1, the petitioner sent a letter dated 12.7.2021 (P-6) to respondent No.1 raising issue of lack of jurisdiction on account of non-applicability of Section 47-A of the Act in the present case. Thereafter various letters were exchanged/addressed but the matter was not decided. Ultimately on 6.10.2021, order was passed by respondent No.1 vide which action of invoking Section 47-A of the Act has been held to be justified and additional demand of `51,95,243/- on account of deficiency in stamp duty has been raised, which is being impugned in the instant writ petition.

# 4. Learned counsel for the petitioner would argue that the petitioner was the successful bidders in the court auction done through the Official Liquidator and the Official Liquidator had executed the sale deed in question in favour of the petitioner and that too after seeking permission from the Company Court. Therefore, Section 47-A of the Act cannot be invoked in case of auction sales and the same is applicable to the private sales only. In these circumstances, the sole question that was required to be addressed by respondents was whether in respect of sale of property through court auction, could there be a case of undervaluation of property or deficiency in payment of stamp duty. However, that issue was not addressed, while passing the impugned order. Hence, the instant writ petition.

# 5. Per contra, learned counsel for the respondents would argue that value of the property set forth in the sale deed being less than minimum value, as determined in accordance with rules under the Act, the reference to the Collector was justified and the Collector rightly determined the value on the date of registration. Counsel would rely upon judgments as rendered by the Supreme Court in State of Rajasthan Vs. M/s Khandaka Jain Jewellers 2008 (1) RCR (Civil) 91 to argue that stamp duty is to be paid when deed is presented for registration. It is also argued that the present writ petition is not maintainable as against the impugned order, the statutory remedy available to the petitioner was to approach the Divisional Commissioner, Rupnagar, but he did not avail that remedy and rather has directly approached this Court by way of instant writ petition, which is not maintainable.

# 6. I have heard learned counsel for the parties and perused the paper book.

# 7. The issue that requires consideration is whether in respect of sale of property through court auction, the stamp duty is to be paid on market value or on the purchase price at the auction.

# 8. Section 47-A of the Indian Stamp Act 1899 as applicable to Punjab, is re-produced as under:-

• “47-A Instruments under-valued how to be dealt with –

• (a) If the market value of any property, which is the subject of any instrument on which duty is chargeable on market value as set forth in such instrument, is less than even the minimum value as determined in accordance with the rules made under this Act, the Registering Officer appointed under the Registration Act, 1908, shall, after registering the instrument, refer the same to the Collector for determination of the market value of such property and the proper duty payable thereon; and

• (2) On receipt of reference under Sub-section (1), the Collector shall, after giving the parties reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules under this Act, determine the value or consideration and the duty as aforesaid, and the deficient amount of duty, if any, alongwith interest at the rate of twelve per cent per annum on such deficient amount, shall be payable by the person liable to pay the duty from the date of registration of the instrument relating to such property to the date of payment of deficient amount of the duty:

• Provided that a person shall also be liable to pay penal interest at the rate of three per cent per annum, if there was an intentional omission or lapse on his part in note setting forth the correct market value of such property.

• (3) The Collector may, suo moto, or on the receipt of a reference from the Inspector General of Registration or Registrar of a District appointed under the Registration Act, 1908 (Central Act No.16 of 1908), in whose jurisdiction the property or any portion thereof which is the subject matter of the instrument is situated or on the receipt of a report of audit by the Comptroller and Auditor General of India or by any other authority authorized by the State Government in this behalf or otherwise, within a period of three years from the date of the registration of an instrument, call for and examine any instrument for the purposes of satisfying himself as to the correctness of the value of the property or of the consideration disclosed and of all other facts and circumstances affecting the chargeability of the instrument or as to the true character and description thereof and the amount of the duty with which it was chargeable and if after such examination, he was reason to believe that proper duty has not been paid, he may, after giving the person concerned reasonable opportunity of being heard and after holding an enquiry in the manner provided under subsection (2), determine the value of the property or the consideration or the character or description of instrument and the duty with which it was chargeable and the deficient amount of duty, if any, alongwith interest at the rate of twelve per cent per annum on such deficient amount, would be payable by the person liable to pay the duty from the date of registration of the instrument relating to such property to the date of payment of deficient amount of the duty;

• Provided that a person shall also be liable to pay penal interest at the rate of three per cent per annum, if there was an intentional omission or lapse on his part in note setting forth the correct market value of such property.

• (4) Any person aggrieved by an order of the Collector under subsection (2) or sub-section (3) may, within thirty days from the date of that order, prefer an appeal before the [Commissioner] and all such appeals shall be heard and disposed of in such manner as may be prescribed by rules made under this Act.

• Explanation.-For the purpose of this section, value of any property shall be estimated to be the price which in the opinion of the Collector or the appellate authority, as the case may be, such property would have fetched, if sold in the open market on the date of execution of the instrument relating to the transfer  of such property.”

# 9. The scheme of Section 47-A of the Act is to deal with cases where parties by arrangement in a clandestine or fraudulent manner, undervalue the property sought to be transferred in order to deprive the State of legitimate revenue by way of stamp duty. Section 47-A of the Act empowers the Collector to act under this provision in case of deliberate arrangement to undervalue the property to evade payment of stamp duty. With parties undervaluing the property, the State losses its revenue. The Collector must have reasons to believe that the property sold and registered has been undervalued. Ordinarily, in a transaction of immovable property by transfer or exchange or partition or gift etc. where the transferor is State or public authority, the provisions of Section 47-A of the Act would not be attracted as in such transactions, undervaluation may not be involved and there is no deliberate attempt to defraud the State Exchequer of its revenue. It must be kept in mind that at times public auctions do not always reflect the correct market value and may be by way of distress sale as well. It is not always necessary that a public auction would in all circumstances fetch the market value or be sold at the collector’s rate as fixed.

# 10. The sale, in the present case, was by public auction by a public authority. As a rule of law, the stamp duty to be paid on an instrument is based on the market value of the property which is either the price at which such property would have been sold at in the open market or the consideration paid for it, whichever is higher. The judgment as rendered in the case of V.N. Devadoss v. Chief Revenue Control Office-cum-Inspector & Ors., (2009) 7 SCC 436 would be applicable in the present case, which arose under Section 47-A of the Indian Stamp Act 1899, as applicable to the State of Tamil Nadu, pertaining to the property sold by the Board for Industrial and Financial Reconstruction (BIFR) in an open auction, on the basis of a valuation done by the Assets Sales Committee. In these circumstances, the Supreme Court held as under:-

“On the facts of the case it cannot be said that Section 47A has any application because there is no scope for entertaining a doubt that there was any under valuation. That being so, the High Court’s order is clearly unsustainable and is set aside. The registration shall be done at the price disclosed in the document of conveyance. There is no scope for exercising power under Section 47-A of the Act as there is no basis for even entertaining a belief that the market value of the property which is the subject matter of conveyance has not been truly set forth with a view to fraudulently evade payment of proper stamp duty.”

# 11. Similarly in the case of Ballyfabs International Limited v. State of West Bengal 2022 (2) Cal. H.C.N.282, the Division Bench at Calcutta when it was seized of a matter wherein there was a demand raised for additional stamp duty, on a sale conducted under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, on the ground that it was not as per marker value, the Court held that once the sale is effected by an authorized officer under SARFAESI Act by making wide publication in the widely circulated newspapers, shall be regarded as the open market sale and, therefore, the registering authority cannot have any reason to believe that the sale price has been shown under-valued having not sold in the open market.

# 12. In a recent judgment as rendered by the Supreme Court in Registrar of Assurances v. ASL Vyapar Private Ltd. 2022 (4) R.C.R. (Civil) 485, while dealing with a similar issue of additional demand of stamp duty on property sold in public auction, it was held as under:-

• “22. On the conspectus of the matter, we have not the slightest hesitation in upholding the view that the provision of Section 47A of the Act cannot be said to have any application to a public auction carried out through court process/receiver as that is the most transparent manner of obtaining the correct market value of the property.

• 23. It is no doubt true that in a court auction, the price obtainable may be slightly less as any bidder has to take care of a scenario where the auction may be challenged which could result in passage of time in obtaining perfection of title, with also the possibility of it being overturned. But then that is a price obtainable as a result of the process by which the property has to be disposed of . We cannot loose sight of the very objective of the introduction of the Section whether under the West Bengal Amendment Act or in any other State, i.e., that in case of under valuation of property, an aspect not uncommon in our country, where consideration may be passing through two modes – one the declared price and the other undeclared component, the State should not be deprived of the revenue. Such transactions do not reflect the correct price in the document as something more has been paid through a different method. The objective is to take care of such a scenario so that the State revenue is not affected and the price actually obtainable in a free market should be capable of being stamped. If one may say, it is, in fact, a reflection on the manner in which the transfer of an immovable property takes place as the price obtainable in a transparent manner would be different. An auction of a property is possibly one of the most transparent methods by which the property can be sold. Thus, to say that even in a court monitored auction, the Registering Authority would have a say on what is the market price, would amount to the Registering Authority sitting in appeal over the decision of the Court permitting sale at a particular price.

24. It is not as if a public auction is carried out just like that. The necessary pre-requisites require fixation of a minimum price and other aspects to be taken care of so that the bidding process is transparent. Even after the bidding process is completed the court has a right to cancel the bid and such bids are subject to confirmation by the court. Once the court is satisfied that the bid price is the appropriate price on the basis of the material before it and gives its imprimatur to it, any interference by the Registering Authority on the aspect of price of transaction would be wholly unjustified.”

# 13. In the present case, the property has been sold in by the Company Court in an open auction conducted by the Official Liquidator as attached to the said Court and the sale stands confirmed by this Court itself. There is no element of fraud or intention of the purchaser to dupe the State of the revenue, considering the fact that the sale price has been fixed by the High Court itself. Therefore, in view of the ratio of the judgments above, the registering authority is unjustified in demanding additional stamp duty in the instant case.

# 14. Learned counsel for the respondents has urged that the Supreme Court in its judgment rendered in State of Rajasthan (Supra) has held that the stamp duty is to be paid on market value, as on the date when the deed is presented for registration and, therefore, the petitioner is to pay the deficient stamp duty as assessed by the Collector. However, this judgment is distinguishable and not applicable to the facts of the present case. In the case referred to above, the issue arose whether the stamp duty is to be paid on the price settled in the agreement to sell or when the deed is presented for registration. The vendor in the case referred to, had backed out of executing the sale agreement and the vendee obtained a decree of specific performance and the prices shot up in the meantime. The court held that pendency of litigation does not affect the principles of interpretation of a taxing Statue. In the case in hand, the sale is by a public authority by holding a public auction and the sale has been confirmed by the High Court. There is no question of evading stamp duty and depriving the State of its revenue.

# 15. The objection raised that the petitioner has not availed alternate remedy of filing an appeal is not tenable in the instant case. There is no specific bar to a writ court exercising its jurisdiction if alternate remedy has not been availed of as in the instant case. In this regard, reference can be made to a recent judgment as rendered by the Supreme Court in Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-Cum-Assessing Authority 2023 AIR (SS) 781, wherein it has been held that where there is a question of law as to the jurisdiction and controversy is legal one and does not involve disputed question of fact, a writ can be entertained. In Magadh Sugar & Energy Limited Vs The State of Bihar and others 2021(4) PLJR 142, the Supreme Court, in Para 19 of its judgment, has laid down certain principles where the writ court can exercise its jurisdiction instead of relegating the party to avail alternate remedy. In the instant case, there is no dispute about any fact. The only issue is whether stamp duty is to be paid on the current market value of the property bought in a public auction or on the auction price? The issue in no longer res integra and stands settled by judicial pronouncements, therefore it would be futile exercise in remanding the case to the appellate authority. Under these circumstances, this court is exercising its writ jurisdiction and sets aside the order dated 12.4.2021 impounding the sale deed dated 12.4.2021 and the order of the Collector dated 6.10.2021 passed under Section 47-A of the Act. The sale deed which has been impounded is directed to be released immediately, after its due registration.

# 16. The writ petition stands allowed on the above terms.

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