High Court of Bombay

Mukund Ganesh Barve and Ors. vs. The Chief Controlling Revenue Authority and Ors.

MANU/MH/4104/2023

10.10.2023

Civil

When agreement is for sale of immovable property on which stamp duty is paid and the document is registered under the Registration Act, extended period of two years would be applicable

Present petition under Article 226/227 of the Constitution of India, 1950 is filed challenging the order whereby refund of Rs.19,725 being the stamp duty under the Bombay Stamp Act, 1958 (the Stamp Act) paid by the Petitioners is denied.

As per Section 48(1), relief under Section 47 can be given in the cases mentioned in clause (c)(5) if application is made within six months from the date of the instrument. However, proviso to sub-section (1) extends the period of six months to two years, if the agreement is for sale of immovable property on which stamp duty is paid under Article 25 of the Schedule I and is registered under Registration Act, 1908 and if the seller refuses to deliver possession of the immovable property which is the subject matter of such agreement.

Section 47(c)(5) is a general provision with respect to all types of agreements. However, proviso to Section 48(1) carves out from such general provision, agreements with respect to sale of immovable property on which stamp duty is paid and document is registered. Therefore, with respect to refund on cancellation of a duly registered agreement for sale, the proviso to Section 48(1) is a special provision and same would apply and not the general provision of Section 48(1). In the present case of the Petitioners, the agreement is for sale of immovable property on which stamp duty is paid and the document is registered under the Registration Act and, therefore, the extended period of two years would be applicable.

The authorities were not justified in reading the clause relating to financial problem only for the purpose of denying the refund. It is a settled position that the agreement has to be read as a whole and if read so, the financial problem was not the only ground on which the cancellation deed was executed but non delivery of possession as per the original agreement was also the ground for cancellation of the deed. Therefore, the case of the Petitioners is clearly covered by the provision of Section 47(c) (5) of the Stamp Act and, therefore, the Petitioners are eligible for the refund.

The application for refund has been made by the Petitioners within the time specified in Section 48 of the Bombay Stamp Act and the case of the Petitioners is covered by Section 47(c)(5) and, therefore, is eligible for refund of stamp duty of Rs.19,725 along with interest of 6% from the date of application of refund, i.e. 29th July 1998, till the payment of refund by the Respondents. Petition allowed.

Tags : Refund Entitlement Time-period

Share :