(Advocate Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)
The Madras High Court has
held that an instrument, whether a ‘certificate of sale’ or ‘sale deed’, issued
in a public auction of properties, was chargeable with stamp duty under Article
18 read with Article 23 of Schedule I to the Indian Stamp Act, 1899.
Nothing that there was an
emerging trend among purchasers of properties in public auctions to seek issue of Certificates of Sale rather than Deeds of Sale, the High Court recalled that
in Shree Vijayalakshmi Charitable Trust case [Shree Vijayalakshmi Charitable
Trust vs Sub-Registrar, Erode Dt. (2009 (5) CTC 15] the view that a certificate
of sale did not attract stamp duty had found acceptance. But the question as to
whether stamp duty was payable on a certificate of sale was not examined in the
said case on a comparative analysis of all provisions of the Transfer of
Property Act, 1882, the Stamp Duty Act and the Registration act, 1908, and
issues of repugnancy and the overriding effect of one act over the other, it
was held.
Analyzing the Transfer of
Property Act, the Honourable High Court recalled that the Apex Court made it
clear in Raghunath vs Kedar Nath [1969 (1) SCC 497] that the documents of which
registration was necessary, fell within the scope of Section 49 of the Registration Act and that if not registered, they were not admissible as evidence of any
transaction affecting any immovable property comprised therein.
Under the Stamp Act
irrespective of and provisions of the Registration act, a certificate
of sale issued to a purchaser of property sold in public auction, was required
to be stamped as per Article18 read with Article23 if the purchase money
exceeded Rs.100 of Schedule1 of the Stamp Act.The provisions of the Stamp Act
and the Registration Act operated on parallel lines.
Neither of them contains a
non-abstante clause so as to exclude operation of the other.The option given
under the Registration Act to makers of certain documents, to register them or
not, was not to be construed as an exemption from payment of stamp duty.Therefore, the only conclusion that could be drawn by a combined reading of the
three Acts was that by whatever name the instrument was called, it was
chargeable with stamp duty, it was held.
In view of the above, the
application was disposed of with a direction to the Official Liquidator to
issue a certificate of sale or execute a sale deed in line with the choice of
the auction purchaser.
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