Manmohan Sarin, J.
1. Petitioners are aggrieved by the rejection of their application for refund of stamp duty by the impugned order dated 14th June, 2004 passed by the Collector of Stamps. The order is a short one and may be reproduced for facility of reference:-
Sub: Refund of Stamp Duty in r/o
Flat No. 6061/3, Sect-D, Pkt-6,
Vasant Kunj, New Delhi.
Sir,
With reference to your letter No. nil dated 25.9.03 and subsequent reminder on the subject cited above. Your case for refund was examined and rejected by the competent authority being not admissible under the provision of u/s 49 of the Indian Stamps Act 1899.
2. The facts giving rise to the petition may be briefly noted:-
(i) Petitioners had applied for allotment of a SFS flat. It was allotted to the petitioners. Petitioners duly paid consideration amount of Rs. 14,28,043/- (Rs. Fourteen lacs twenty eight thousand forty three only). Additionally, petitioners deposited stamp and transfer duty @ 13% i.e. 8% + 5% respectively, amounting to Rs. 1,78,770/-. Petitioners' case is that possession of the flat was given on 12th June, 2003. Petitioners submitted the conveyance papers for adjudication on 3rd March, 2003, and duty was paid on 18th March, 2003. Conveyance was executed on 30th June, 2003. It was duly registered on 8th August, 2003.
(ii) By notification dated 19th May, 2003, bearing no. F.2(3)/Fin.(E-I)/2003-04/(i)/125, stamp duty on conveyance was reduced from 8% to 5% with immediate effect. By another notification dated 5th June, 2003, transfer duty was also reduced from 5% to 3%.
Vide another notification dated 11th August, 2003, the earlier notification dated 19th May, 2003 was extended up to 31st March, 2004 Petitioners applied for refund of the stamp duty and transfer duty paid in excess amounting to Rs.67,810/- on 25th September, 2003.
3. By the impugned order, refund of stamp duty has been refused on the ground that case was not covered under Section 49 of the Indian Stamps Act, 1899, (hereinafter referred to as the Act). However, in the counter-affidavit filed, respondents have taken the plea that instrument had been submitted for adjudication under Section 31 of the Act and payment had been made on 18th March, 2003. The Collector of Stamps exercised the power of adjudication of documents regarding levy of stamp duty as per the schedule of duty applicable on the date of adjudication and issued the certificate under Section 32 of the Act. In other words, what is sought to be urged is that stamp duty as livable at the time of adjudication was charged and paid. Another plea taken s that petitioners got documents registered after due execution. Subsequently after utilization of the stamped instrument, refund is sought. The case would not be covered under Section 49 of the Act.
Learned counsel for the respondents submitted that transfer duty, as collected, is already passed on to MCD, whom petitioner has not imp leaded as a party. thereforee, respondents cannot be held responsible for refund of duty. As regards refund being made under Section 52 of the Act, learned counsel for the respondent submitted that this was not a case of inadvertence and Section 52 would not be attracted.
4. Learned counsel for the petitioners, Mr. R.K. Dhawan has urged that by virtue of Section 9, power is conferred on the appropriate Government to reduce or remit retrospectively the incidence of stamp duty. He submits that duty having been reduced pursuant to notifications issued, same was liable to be refunded. He places reliance on Section 52 of the Act providing for refund of stamp duty, where stamp of greater value than was necessary had been used on an instrument. The only limiting factor is that application should be made within six months after the date of instrument.
5. Counsel for the petitioner also places reliance on R.A. Baxter, Bar At Law (36, C.645; 9 Cri.L.J. 621 wherein even when an application for refund had not even been made at the initial stage, same was allowed.
6. Having noted the factual matrix as also the respective submissions, let us examine as to what is the incidence of exigibility to stamp duty. The incidence of levy of stamp duty is neither the date of adjudication nor the date on which stamp papers are engrossed. Reference is invited to Section 2(6) of the Act defining. It reads:-
Chargeable means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and, as applied to any other instrument, chargeable under the law in force in (India) when such instrument was executed or, where several persons executed the instrument at different times, first executed.
Further Section 17 provides All instruments chargeable with duty and executed by any person in (India) shall be stamped before or at the time of execution.
7. Reading Sections 17 and 2(6) of the Act together would show that only harmonious interpretation would be that incidence of duty or the chargeable event is the execution of the instrument. Accordingly, it is held that the chargeable event for exigibility to stamp duty is the date of execution and not the date of adjudication or the date of presentation and registration.
8. Having held that the applicable stamp duty as on the date of execution, which in the instant case is 30.6.2003, would be applicable, the question to be considered is whether the petitioner is entitled to refund of the stamp duty and transfer duty. The stamp duty and transfer duty having been reduced from 8% to 5% and from 5% to 3% respectively, the amount paid in excess is claimed to be Rs.67,810/-.
9. The first objection raised by the respondent for rejecting the claim for refund was that the petitioner's case does not fall within Section 49 of the Act, which is applicable for refund of stamp duty in case of unused, damaged or spoiled stamp papers.
It is true that the document has been executed and it would not be a case of unused, spoiled or damaged stamps so as to attract Section 49. It is not the petitioner's case that claim is preferred under Section 49 of the Act, hence this objection is of o consequence.
10. The next objection taken by respondents is that the petitioner's case would not be covered for refund under Section 52 of the Act, as it was not a case where duty had been paid by inadvertence. Plea of the respondents being that this was a case where the amount of stamp duty had been got adjudicated by the petitioner and consciously paid. Section 52 of the Act is reproduced for facility of reference:-
52. Allowance for misused stamps:-
(a) When any person has inadvertently used for an instrument chargeable with duty, a stamp of a description other than that prescribed for such instrument by the rules made under this Act, or a stamp of greater value than was necessary, or has inadvertently used any stamp for an instrument not chargeable with any duty; or
(b) When any stamp used for an instrument has been inadvertently rendered useless under section 15, owing to such instrument having been written in contravention of the provisions of section 13, the Collector may, on application made within six months after the date of the instrument, or, if it is not dated, within six months after the execution thereof by the person by whom it was first or alone executed, and upon the instrument, if chargeable with duty, being re-stamped with the proper duty, cancel an allow as spoiled the stamp so misused or rendered useless.
Even if Section 52 of the Act is held to be not attracted or in the absence of a provision providing for refund, stamp duty or any part of the duty collected in excess without authority of law cannot be retained by respondents. This is the mandate under Article 265 of the Constitution of India.
11. Even as regards applicability of Section 52 of the Act, the matter can be looked at in another perspective. The chargeable event being the date of execution of the document and if on that date higher than the admissible stamp duty is levied or collected, it would fall within the ambit of excess payment being inadvertently collected on the said date from the petitioner. Thus, it could even be urged that Section 52 of the Act was applicable. Further as noticed earlier dehors the applicability of Section 52 of the Act, stamp duty collected without authority of law cannot be retained in terms of Article 265 of the Constitution of India in the absence of any statutory provision requiring refund application to be submitted within a specified period or prohibiting the refund unless made within the specified period. In the instant case, it may be noted, that application for refund had been made within the stipulated period of six months under Section 52 of the Act.
12. In view of the foregoing discussion petitioners are held entitled to succeed in the petition. Petitioners are entitled to refund of stamp duty and transfer duty as collected by respondent in excess. Writ of mandamus shall issue to respondent No. 1 through the Chief Controlling Revenue Authority, directing refund of stamp and transfer duty to the petitioner within eight weeks from today, collected in excess amounting to Rs.67,810/- subject to the petitioners' tendering the original conveyance for carrying out the necessary endorsement regarding refund and completion of other formalities as required by respondents. It would be open for respondents 1 to 3 to seek refund of the transfer duty as refunded to the petitioners from MCD.