Rajes Kumar, J, - (1.) BY means of the present writ petition, the petitioner is seeking the following reliefs : (a) "Issue an appropriate writ, order and/or direction in the nature of certiorari and/or otherwise passing an order to quash the impugned order dated 28.11.2008 by the respondent No. 3 in stamp appeal No. 152 of 2006-07 whereby the order under appeal dated 12.12.2006 passed by respondent No. 2 has been upheld and consequently also quash the demand of excess stamp duty, penal interest @1.5% per month and the penalty thereon; (b) Issue appropriate directions declaring that the stamp duty is payable only on the immovable property mentioned in the sale/conveyance deed dated 31.10.2006; (c) Issue an appropriate writ/order and/or direction in the nature of mandamus directing the Collector/ADM to reassess/recompute the correct stamp duty in accordance to law; (d) Issue a consequent writ of mandamus or otherwise commanding the respondent to refund the excess stamp duty, penalty and interest (charged beyond Rs. 131,77,12,000/-) alongwith interest till realization; (e) Dispense with the filing of the originals of the Annexures; (f) With a further prayer to pass any other additional and/or alternative relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the case; (g) Allow the writ petition with costs in favour of the petitioner. The Chief Controlling Revenue Authority (hereinafter referred to as the "Appellate Authority") vide order dated 28.11.2008 rejected the appeal against the order of theA.D.M. (Finance and Revenue), Shahjahanpur (hereinafter referred to as "A.D.M.") dated 12.12.2006 in Stamp Case No. 115 of 2006. The A.D.M. has raised the demand towards stamp duty amounting to Rs. 26,08,59,300/-, penalty Rs. 1,40,700/- and interest @1.5% per month.
(2.) THE brief facts giving rise to the present writ petition are as follows . (i) THE petitioner is a Company incorporated under the Indian Companies Act, 1956 having its registered office at C-165, 1st Floor Naraina Industrial Area, Phase-1, New Delhi. (ii) Krishak Bharati Co-operative Ltd. (in short KRIBHCO) is a Company in which Government of India holds more than 50% equity shares and in turn holds 85% shares in the petitioner's Company. Thus, it is a Government Company under Section 617 of the Indian Companies Act. (iii) M/s Shyam Basic Infrastructure Projects Pvt. Ltd. (in short SHYAM) is a Company incorporated under the Indian Companies Act. It entered into an agreement on 3.11.2005 with Oswal Chemical Fertilizers Ltd. (in short OCFL) another Company to purchase the assets of OCFL, both movable and immovable properties, for a consideration of Rs. 1900 crores. (iv) THE agreement to sale provides that SHYAM includes its successors in interest, any other existing or to be incorporated body corporate of SHYAM group and permitted assigns. It also provided that the Company in addition to the above mentioned lump sum purchase price shall pay to OCFL an additional consideration equivalent to the book value on 13.1. 2006 of the current assets THE agreement has been executed on the stamp paper of Rs. 100/-. (v) THE said agreement to sale was impounded by the Collector (Stamp) under Section 33 of the Indian Stamp Act as the same was executed on a stamp paper of Rs. 100/- and a case was registered being case No. -107 of 2005. THE petitioner executed a supplementary agreement dated 23.12.2005 in furtherance of the agreement.dated 3.11.2005. THE same was included in the said proceeding, viz. Case No. 107 of 2007. THE Collector (Stamp) determined the deficiency in payment of stamp duty in the agreement to sale and the demand of Rupees 76 crores was raised which was paid on 31.8.2006. (vi) THE entire assets, including movable and immovable properties, have been valued as on 31st January, 2006. It was valued at Rupees 1902.50 crores. THE detail of the valuation is at page 70 of the writ petition and is being referred as follows:_ JUDGEMENT_807_ADJ2_2011Image1.jpg It appears that SHYAM has been incorporated with Kribhco Shyam Fertilizers Ltd. vide order No. 1183 SIDC-ROB-1 A -Shahjahanpur Bulk Land dated 11. 8.2006, U.P. State Industrial Development Corporation Ltd. (UPSIDC) had granted approval for transfer of the lease relating to 780.75 acres of leasehold land and in pursuance thereof a lease deed relating to the land was executed on 14.8.2006 in favour of the petitioner. On the said lease deed, a sum of Rs. 53,87,000/- has been paid towards stamp duty. A sale-deed between the petitioner and OCFL had been executed on 31.10.2006. The stamp duty of Rs. 164,71,40,700/- was paid on a consideration of Rs. 16,47,14,00,000/-. Some of the relevant clauses of the sale-deed are as follows: D. "On 3rd November, 2005, the VENDOR entered into a Memorandum of Understanding, titled as an "Agreement to Sell" (hereinafter referred to as "the Agreement") with Shyam Basic Infrastructure Projects Private Limited, a company incorporated and existing under the provisions of the Companies Act, 1956 and having its registered office at B-2D, Shiv Marg, Bani Park, Jaipur, Rajasthan (hereinafter referred to as the "SHYAM") for sale of the Undertaking 'as a going concern' on 'as is where is basis' on a lump sum consideration for Rs. 1,900.00 crores. F. As per the terms and conditions of the Agreement it was agreed and understood between OCFL and SHYAM that the Sale-deed would be executed in favour of SHYAM or KRIBHC0 or any of their nominee or a Joint Venture or a Special Purpose Vehicle (SPV) formed for this purpose. G. Pursuant to the Agreement, SHYAM in joint venture with KRIBHCO have incorporated a SPV in the name and style of KSFL. L. The PDIL has submitted a valuation report dated 6th April, 2006. KSFL has accepted the said report to the extent of its valuation of movable and immovable assets including land, plant and non-plant buildings (Township), plant and machinery etc. As per the valuation report the value of the 'immovable assets' (excluding leasehold land) comprising part of the Undertaking (hereinafter referred to as "the property" mentioned in detail in Schedule 'A' annexed hereto) is Rs. 1647,14,00,000/- (Rupees one thousand six hundred forty-seven crore fourteen lakhs) only. M. By an order No. 1183 SIDC-ROB-1A-Shahjahanpur Bulk Land dated 11.8.2006, U.P. State Industrial Development Corporation Ltd. (UPSIDC) had granted approval for the transfer of the lease relating to the 780.75 acres of leasehold land of the undertaking in favour of the VENDEE. N. Pursuant to the approval dated 11.8.2006 UPSIDC has executed a lease deed relating to the land of the undertaking on 14th August, 2006 in favour of the VENDEE. O. VENDEE has paid a stamp duty of Rs. 53,87,000/- (Rupees fifty three lac eighty seven thousand only) on the said lease deed and the same is registered with the office of Sub-Registrar of Assurances at Shahjahanpur at SI. No. 7696 Zild No. 4287 and page No. 191 to 226, Book No. 1 dated 14th August, 2006 and, therefore, land and site development valued at Rupees 5100 and 4429 lakhs respectively i.e. total of Rupees 9529 lakhs is not part of this sale-deed. P. The estimated asset value of office, other equipments, vehicles, furnitures and fittings and machinery spares, estimated value at Rupees 2175 lakhs are in the nature of movable property, and, therefore, does not form part of this sale-deed. The possession of these items has been taken by delivery. Q. The non-process plant and machinery of estimated value of Rupees 1332 lakhs is also in the nature of movable property and, therefore, does not form part of this sale-deed. The possession of these items has been taken by delivery. R. The intangible benefits from an acquisition of an undertaking includes skilled and trained men power, synergic value, availability of natural gas at subsidised rates (APM price level) etc. VENDEE has valued the intangible benefits at Rupees 12500 lakhs. The consideration paid towards the said intangible benefits is also not part of this sale-deed. S. This sale-deed therefore covers only plant and non-plant buildings, process plant and machinery which are in the nature of immovable property and has been estimated at value of Rupees 3825 lakhs, Rupees 121157 lakhs and Rupees 39732 lakhs respectively i.e. total of Rupees 164714 lakhs. T. That through this sale-deed the immovable property mentioned in para "S" above is being transferred and this deed does not cover the transfer of any other movable/immovable or any other tangible or intangible assets being part of the offered assets/undertaking for which separate consideration has been paid. No other movable or immovable properties including the leasehold land are covered or transferred under this sale-deed. V. That the VENDEE has already paid the stamp duty of Rupees 100 on the Agreement dated 3rd November, 2005, Rupees 400 lakhs worth of stamps were purchased on 30th March, 2006 and Rupees 7600 lakhs stamp duty was paid on dated 31st August, 2006 pursuant to an order in stamp case Nos. 107/105/97/05. These stamps are liable to be adjusted towards the total stamp duty payable on this sale-deed. W. That the stamp duty @ 8% on the value of "the property", which is being transferred through this sale-deed, is at Rupees 13177.12 lakhs. Additional stamp duty payable @ 2% is at Rupees 3294.28 lakhs. Thus, the total stamp duty payable on the present/conveyance deed is at Rupees 16471.40 lakhs. As such on the present sale-deed after adjustment of the stamp duty of Rupees 7600.001 lakhs (already paid) the stamp duty of Rs. 8871.399 lakhs (including the stamps of Rupees 400 lakhs) i.e. the balance amount of the total stamp duty is being paid."
(3.) AFTER the execution of the aforesaid sale-deed, on the report of the Sub- Registrar, Sadar, proceeding under Section 33/47-A(1)of the Act was initiated. A notice was issued to the petitioner stating therein that in the agreement to sale dated 3.11.2005, the amount of consideration has been shown at Rupees 1900 crores and at its page No. 6 it has been clearly stated that the total amount of the current assets mentioned in Schedule D would be as per the book value dated 13.1.2006; the assessment of free hold land and covered area would be as per the circle rate dated 22.6.2006; whereas as per the directions mentioned on page 24 of the aforesaid list, the valuation of the machinery and immovable property would be done by the assessment committee of experts constituted by the Collector; whereas on the said deed dated 31.10.2006 stamp duty has not been paid on the fullest consideration. The petitioner filed its reply, denied the allegations and submitted that the stamp duty has been correctly paid on the valuation of the immovable properties which were the subject-matter of the sale-deed and there was no deficiency.;