Jitendra Jain JUDGMENT
Jitendra Jain, J.
1. This petition under Article 226/227 of the Constitution of India is filed challenging the order dated 6th May 2005 passed in Appeal No.52 of 1999 and order dated 13th August 1998 passed in Refund Case No.203A/99 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.
2. Brief facts leading to the present petition are as under:-
(i) On 30th May 1996, the Petitioners entered into an agreement with M/s. Gandhi Kamat & Khivansara for purchase of flat no.7 in building "B" of the project to be constructed by the builder. As per the said agreement, the builder was obliged to handover possession on or before 30th November 1997. However, the possession was not given on the date as specified in the agreement and, therefore, on 15th May 1998, a cancellation deed was executed between the parties. In clause 2(B) of the cancellation deed, one of the reasons for cancellation is mentioned which is that the construction is yet to be completed and possession is yet to be handed over by the builder to the Petitioners. Further, it is also mentioned in clause (C) that due to financial problem, the Petitioners cannot pay the balance consideration and has decided to purchase a smaller accommodation and, therefore, intends to cancel the agreement. On 21st July 1998, the promoter gave a certificate certifying that as they could not complete the construction of the building and the Petitioners being in financial difficulty, it was mutually agreed to execute the cancellation deed.
(ii) The Petitioners made an application on 29th July 1998 for refund of the stamp duty of Rs.19,725/- paid on the sale agreement. The said application came to be rejected on 13th August 1999 by Joint District Registrar on the ground that the application is not made within two years from the date of registration of document as required under Section 48(1) of the Bombay Stamp Act, 1958.
(iii) The Petitioners carried the said order of rejection in appeal. On 6th May 2005 in Appeal No.52/1999, the appellate authority confirmed the rejection on a totally different ground by observing that the case of the Petitioners does not fall under any of the provisions of Section 47 of the Bombay Stamp Act.
(iv) It is on this backdrop that the present petition is filed challenging the aforesaid rejection of the refund application and its confirmation by the appellate authority.
3. Heard learned Counsel for the Petitioners and the Respondents and with their assistance, perused the documents annexed to the writ petition.
4. The issue which requires consideration is:
Issue (1) :
Whether the application dated 29th July 1998 for refund of the stamp duty is within the time specified in first proviso to Section 48 of the Bombay Stamp Act as it existed at the relevant time?
Issue (2) :
Whether the appellate authority is justified in confirming the rejection of refund application on the ground that the case of the Petitioners is not covered by any of the clauses of Section 47 of the Bombay Stamp Act?
5. Issue No. 1 :
Section 48 of the Bombay Stamp Act provides for time period within which the application for refund is to be made. The first proviso to Section