- (1.) This writ petition has been filed for quashing the order dated 26.9.2005 passed in proceedings under Section 33/47-A of the Indian Stamp Act in Case No. 349 of 2004-05 as also the Appellate Order dated 25.4.2011 passed in Stamp Appeal No. 70 of 2005-06 preferred under Section 56(1A) of the Indian Stamp Act, 1899.
(2.) Facts in short giving rise to the present writ petition are as follows: (i) Petitioner before this Court claims to have entered into an agreement dated 22.9.2002 with M/s. Anubhav Hotels and Resorts (Ltd.). Both the parties to the agreement are Companies duly incorporated under the Companies Act. A copy of the agreement entered into between the parties has been brought on record as Annexure-1 to the writ petition. This agreement was executed on an stamp paper of Rs. 100/- only. Petitioner has been termed as Operator while the Respondent Company has been termed as owner in the agreement. The agreement is for developing an hospitality facility in the building situate in the property A-79-A, Sector 16 NOIDA known as Savoy Suites. The Additional District Magistrate (Finance & Revenue) treating the document to be a lease deed/ issued notice to the Petitioner to show cause as to why stamp duty short paid be not realized. The proceedings in that regard were registered as Case No. 48 of 2003-04. The Petitioner responded to the notice so issued and contended that the document executed between the two Companies was only a license and duly stamped, therefore, the notice was bad. (ii) The Additional Collector after considering the rival contentions raised on behalf of the parties recorded that the possession of the property was transferred in favour of the Operator to the exclusion of others and further that the payment for the right conferred was to start from the date the business transactions commenced. The income generated was to be distributed between the two companies as per the share disclosed in the agreement. The Additional Collector found that having regard to the over all terms and conditions of the agreement, it was to be treated as a lease and not a license. Accordingly a demand of stamp duty of Rs. 10,56,000/- was raised. In addition thereto, the Petitioner was saddled with penalty of Rs. 10,56,000/- + interest @ 1.5% from the date of execution of the deed till the date of actual payment. (iii) Not being satisfied with the order so passed by the Additional Collector, the Petitioner filed an Appeal under Section 56(1A) of the Indian Stamp Act before the Board of Revenue at Allahabad. The Appeal was registered as Stamp Appeal No. 70 of 2005-06. The Board of Revenue under the impugned order dated 25.4.2011 has dismissed the Appeal after affirming the findings recorded by the Additional Collector. The Board of Revenue has come to a conclusion that in view of the various clauses of the document, it was to be treated as a lease deed and not a mere license. Accordingly, the demand of stamp duty and penalty with interest has been upheld.
(3.) Challenging the order so passed Shri Dhruv Narain, Senior Advocate assisted by Shri S.K. Singh, submits that the intention of the parties who were literate had to be ascertained from a simple reading of the language of the document. In so many words it was agreed between the parties that only a license was being granted for providing the facility. The Court was taken through Clauses 2.1, 5.4, 5.5., 5.7 and 5.8 of the agreement for the purpose. Counsel for the Petitioner further contended that from a reading of the aforesaid Clauses which were entered into between the two literate persons, it cannot be said by any stretch of imagination that any lease has been granted. He further submits that the Apex Court in the case of Delta International Ltd. v. Shyam Sundar Ganeriwalla and Anr., 1999 AIR(SC) 2607 in paragraph 18 has specifically held that when an agreement has been executed between two literate persons (like two Companies in this case), it has to be presumed that they have mentioned in the agreement whatever they intended with full understanding and to avoid any wrong inference of intention. Heavy reliance has been placed on the following part of the said judgment: When the parties which are capable of understanding their rights fully, expressly agreed and declared that document should not be construed in any manner as creating any relationship as landlord and tenant between them, it would be impermissible to conjecture or infer that their relations should be construed as that of landlord and tenant because of certain terms mentioned in the deed car have double intendment.;