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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th January, 2019
+ O. REF. No.2/2016
In Re: CHIEF CONTROLLING REVENUE AUTHORITY .... Petitioner
Through: Mr. J.M. Kalia, Advs. for the
petitioner.
Mr. Rajeev K. Virmani, Sr. Adv.
(Amicus Curiae).
CORAM:-
HON’BLE MR. JUSTICE SANJIV KHANNA
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MR. JUSTICE JAYANT NATH
RAJIV SAHAI ENDLAW, J.
1. The Chief Controlling Revenue Authority (CCRA), Government of
National Capital Territory of Delhi (GNCTD) has made this Reference under
Section 57 of the Stamp Act, 1899 seeking a decision on the following issue:
“Whether the notification no.13 of 25-12-1937
extending benefit of remission in stamp duty in case of
subsidiary companies as applicable in the then province
of Delhi has any continuous validity and applicability in
view of notification no. GSR 894 dated 30-09-1958 by
which the central government extended the Indian Stamp
(Punjab Amendment) Act, 1958 replacing the previous
and then prevalent stamp law in union territory of Delhi
w.e.f. 01-10-1958.”
2. In accordance with Section 57(2) of the Act providing for decision of
such Reference by not less than three Judges of the High Court, the Reference
was listed before this Bench.
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3. The case stated in the Reference Petition is as under:
(i) The Delhi Laws Act, 1912 proclaiming certain parts, formerly
included within the province of Punjab, to be known as province
of Delhi, vide Section 7 thereof empowered extension of
enactments in force in other provinces with modifications and
restrictions, to Delhi.
(ii) Vide Notification dated 16th January, 1937, issued in exercise of
powers under clause (a) of Section 9 of the Stamp Act remission
was granted in respect of the stamp duty chargable under Articles
23 (Conveyance) and 62 (Transfer) of Schedule-I of the Stamp
Act on the instruments evidencing transfer of property between
companies limited by shares, if 90% of the issued share capital of
the transferee company was in the beneficial ownership of the
transferor company or where transfer took place between a
parent company holding 90% and a subsidiary company or where
the transfer was between two 90% subsidiary companies.
(iii) Vide Notification dated 25th December, 1937, also issued in
exercise of powers under Section 9(a) of the Stamp Act,
remission was granted in respect of duty chargeable in the
province of Delhi on instruments evidencing transfer of
properties between companies limited by shares where, 90% of
the issued share capital of the transferee company was in the
beneficial ownership of the transferor company or where transfer
took place between a parent company holding 90% and a
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subsidiary company or where the transfer was between two 90%
subsidiary companies.
(iv) On 16th April, 1950 Union Territories (Laws) Act, 1950 came
into force with the object to empower Central Government to
extend to the Part-C States any enactment in force in any Part-A
State or any other Part-C State; when the Constitution came into
force, Delhi was a Part-C State.
(v) By Constitution 7th Amendment of 1st October, 1956, Part-C
States were replaced by the Union Territories, thereby
constituting the province of Delhi as a Union Territory.
(vi) In exercise of powers conferred by Section 2 of the Union
Territories (Laws) Act, 1950, vide notification dated 30th
September, 1958 the Stamp (Punjab Amendment) Act was
extended to Delhi w.e.f. 1st October, 1958, repealing the previous
stamp law in force in Delhi and substituting the same by the
Stamp (Punjab Amendment) Act, 1958 as then in force in Punjab
except Schedule-1A of the Punjab State inasmuch as separate
Schedule-1A was created for the Union Territory of Delhi.
(vii) With the repeal of the previous stamp law applicable in the
Union Territory of Delhi before 1st October, 1958, all
notifications issued thereunder also stood repealed by
implication; there was thus no occasion w.e.f. 1 st October, 1958
to continue to extend remission of stamp duty to the instrument
of transfer between the principal and subsidiary companies
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holding 90% or above stake in terms of Notification dated 25th
December, 1937.
(viii) A single Judge of this Court, in Delhi Towers Limited Vs.
GNCT of Delhi (2009) 165 DLT 418 held that in accordance
with Article 372 of the Constitution of India, Notification dated
16th January, 1937 would be a law in force as on the date of the
constitution coming into force and it had not been superseded by
said law; it was further held that the Notification dated 25 th
December 1937 was applicable and binding; consequently it was
held that subject to the conditions in Notification dated 25th
December, 1937 being satisfied, the stamp duty chargeable on
the approved scheme of amalgamation would stand remitted in
terms thereof.
(ix) The Govt. of NCT of Delhi, vide Notification dated 1st June,
2011, withdrew the Notification dated 16th January, 1937.
4. The petitioner CCRA, in compliance of Section 57(1) of the Act
requiring it to along with the Reference forward its own opinion, has opined:
(i) the Notification dated 25th December, 1937 remitting the stamp
duty stood repealed on extension to Delhi of the Stamp (Punjab
Amendment) Act, 1958;
(ii) thus, w.e.f. 1st October, 1958, stamp duty in Delhi is chargeable
in accordance with Schedule-1A as applicable to Delhi and
exemptions contained therein only;
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(iii) the Stamp (Punjab Amendment) Act, 1958 had no provision of
exemption in the nature of Notification dated 25th December,
1937, as was earlier applicable in the Union Territory of Delhi;
(iv) the existing Article 23 of Schedule-1A, which deals with
„conveyance‟, is applicable to transfer of properties inter se
companies, by amalgamation/merger;
(v) the dicta of the Single Judge of this Court in Delhi Towers
Limited supra is per incuriam inasmuch as the attention of the
Court was not drawn to the legal status of Delhi and the
Notification dated 30th September, 1958 extending the Stamp
(Punjab Amendment) Act to Delhi with effect from 1 st October,
1958; and,
(vi) that all exemptions under a fiscal statue have to be construed
strictly, against the assessee and in favour of the revenue.
5. It is further pleaded in the Reference Petition that there is a doubt as to
the amount of stamp duty chargeable/payable respecting the scheme of
amalgamation/merger of the nature of Section 391/392 of the Companies
Act, 1956 between two companies in which at least 90% of the issued share
capital of the transferee company is in the beneficial ownership of the
transferor company or the transfer is from a parent company who is the
beneficial owner of not less than 90% of the issued share capital of the
subsidiary company to the subsidiary company or is between two 90%
subsidiary companies.
6. Chapter VI titled „Reference and Revision‟ of the Stamp Act, in
Sections 56 to 59 thereof provides as under:-
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“56. Control of, and statement of case to, Chief
Controlling Revenue-Authority. — (1) The power exercisable
by a Collector under Chapter IV and Chapter V [and under
clause (a) of the first proviso to section 26] shall in all cases
be subject to the control of the Chief Controlling Revenue-
Authority.
(2) If any Collector, acting under section 31, section 40 or
section 41, feels doubts as to the amount of duty with which
any instrument is chargeable, he may draw up a statement of
the case, and refer it, with his own opinion thereon, for the
decision of the Chief Controlling Revenue-authority.
(3) Such authority shall consider the case and send a copy of
its decision to the Collector who shall proceed to asses and
charge the duty (if any) in conformity with such decision.
57. Statement of case by Chief Controlling Revenue-
Authority to High Court. — (1) The Chief Controlling
Revenue-Authority may state any case referred to it under
section 56, sub-section (2), or otherwise coming to its notice,
and refer such case, with its own opinion thereon, —
(a) if it arises in a State to the High Court for that State;
(b) if it arises in the Union territory of Delhi, to the High
Court of Delhi;
(c) if it arises in the Union territory of Arunachal Pradesh or
Mizoram, to the Gauhati High Court (the High Court of
Assam, Nagaland, Meghalaya, Manipur and Tripura;)
(d) if it arises in the Union territory of the Andaman and
Nicobar Islands, to the High Court at Calcutta;
(e) if it arises in the Union territory of the [Lakshadweep], to
the High Court of Kerala;
(ee) if it arises in the Union territory of Chandigarh, to the
High Court of Punjab and Haryana;
(f) if it arises in the Union territory of Dadra and Nagar
Haveli, to the High Court of Bombay.
(2) Every such case shall be decided by not less than three
Judges of the High Court to which it is referred, and in case of
difference the opinion of the majority shall prevail.
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58. Power of High Court to call for further particulars
as to case stated. — If the High Court is not satisfied that the
statements contained in the case are sufficient to enable it to
determine the questions raised thereby, the Court may refer
the case back to the Revenue-Authority by which it was stated,
to make such additions thereto or alterations therein as the
Court may direct in that behalf.
59. Procedure in disposing of case stated. — (1) The
High Court upon the hearing of any such case, shall decide the
questions raised thereby, and shall deliver its judgment
thereon containing the grounds on which such decision is
founded.
(2) The Court shall send to the Revenue-Authority by which
the case was stated, a copy of such judgment under the seal of
the Court and the signature of the Registrar; and the Revenue-
Authority shall, on receiving such copy, dispose of the case
conformably to such judgment.”
7. As would immediately be evident from the narrative aforesaid of the
Reference Petition, reference is sought unilaterally, without there being any
instrument chargeable to stamp duty and without there being any person liable
for such stamp duty or to remission thereof under Notification dated 25 th
December, 1937 as admittedly being granted with respect to instruments of
transfer between companies as described above and which remission, in the
opinion of CCRA is not available / applicable since 1st October, 1958, inspite
of dicta of this Court in Delhi Towers Limited supra and on which the
petitioner CCRA in this Reference is seeking a judgment from this Court.
Axiomatically, there was / is none to oppose the opinion expressed by the
petitioner CCRA in the Reference Petition. We thus requested Mr. Rajeev
Kumar Virmani, Senior Advocate to assist this Court as Amicus Curiae and to
which he graciously agreed.
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8. Being of the prima facie opinion:
(i) that the Reference by CCRA under Section 57 could arise either
out of a Reference under Section 56 by the Collector of Stamps
to the CCRA itself as to the amount of duty with which any
instrument is chargeable or otherwise coming to the notice of the
CCRA; and
(ii) that a Reference under Section 56 could be made only if the
Collector entertains doubts as to the duty chargeable on an
instrument while acting, either (a) under Section 31 i.e. when any
instrument is brought to the to the Collector and the person
bringing it applied to have the opinion of the Collector as to the
duty with which it is chargeable; or (b) under Section 40, on
impounding of insufficiently stamped document when tendered
in evidence; or, (c) under Section 41, on production of a
document not duly stamped, and finding the Reference to this
Court having not arisen out of a Reference arising under Section
56;
(iii) no „case‟ was otherwise stated in the Reference Petition to have
come to the notice of the CCRA; and,
that without the said conditions being satisfied, the Reference
was not maintainable, arguments were heard from the counsel for
the petitioner CCRA and the learned Amicus Curiae on
maintainability of the Reference and to some extent also on
merits.
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9. The learned Amicus Curiae placed the position with respect to
maintainability of the Reference as under:-
(a) Section 57 of the Act, invoking which Reference has been made,
presupposes that there should be a „case‟ i.e. set of facts and/or
affected party before the CCRA for the CCRA to make the
Reference. Attention in this regard is drawn to Somaiya
Organics (India) Ltd. Vs. Board of Revenue (1986) 1 SCC 351,
The Madras Refineries Ltd. Vs. The Chief Controlling Revenue
Authority (1977) 2 SCC 308, Board of Revenue Vs. Rai Saheb
Sidhnath Mehrotra AIR 1965 SC 1092; Dayal Singh Vs.
Collector of Stamps ILR (1972) I Delhi; Chief Controlling
Revenue Authority Vs. Satyawati Sood ILR (1972) II Delhi and
In Re: The Indian Stamp Act ILR (1926) I Bombay 640, all on
References under Section 57 and in all of which judgment was
rendered in the context of a specific document/instrument subject
of Reference Petition.
(b) The existence of a „case‟ before the CCRA is essential, though it
need not necessarily be a pending case. Reference is
maintainable even after the proceedings before the Revenue
Authorities are over. Reliance in this context is placed on Chief
Controlling Revenue Authority Vs. Maharashtra Sugar Mills
Ltd. AIR 1950 SC 218, Union of India Vs. S. Sarup Singh 1967
SCC OnLine Del 28 and Banarsi Das Ahluwalia Vs. Chief
Controlling Revenue Authority AIR 1968 SC 497.
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(c) The object of the duty/power to refer under Section 57 is that
nobody should be left remediless; reliance is again placed on
Banarsi Das Ahluwalia supra.
(d) The issue in the present Reference has already been adjudicated
by this Court in Delhi Towers Limited supra; it is further
informed by CCRA itself that a similar question is pending
before this Court in W.P.(C) no.7509/2015 titled PDS
Multinational Fashions Ltd. Vs. Collector of Stamps. The
apprehension with which this Reference is sought is, that Delhi
Towers Limited supra would come in the way of petitioner
CCRA in the pending petition also;
(e) CCRA contends Delhi Towers Limited supra to be per incuriam.
If the judgment is per incuriam and the Bench in PDS
Multinational Fashions Ltd. is satisfied in this respect, it can
refer the matter to a Larger bench – the question whether Delhi
Towers Limited is per incuriam or not cannot be subject matter
of Reference. Reliance in this regard is placed on State of Bihar
Vs. Kalika Kuer (2003) 5 SCC 448.
10. Else, on merits of the Reference, the learned Amicus Curiae stated:
(f) Stamp (Punjab Amendment) Act, 1958 does not repeal or revoke
the Notification of 25th December, 1937.
(g) The Notification of 25th December, 1937 is not repugnant to
Schedule-IA added by the Indian Stamp (Punjab Amendment)
Act, 1958.
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(h) Section 24 of the General Clauses Act, 1897 will have no
application since no enactment has been repealed and re-enacted
in the present case. The question of Notification of 25th
December, 1937 being inconsistent with any re-enacted
provision would not arise.
(i) Exemptions contained in Schedule IA are distinct from the
reduction and remission contemplated by Section 9 of the Stamp
Act and the argument that since Schedule-IA contains
exemptions as stated in Section 3, remission in the Notification
of 25th December, 1937 would cease to apply, being repugnant, is
misconceived.
(j) The aforesaid exemptions exempt certain species of instruments
from chargeability to any stamp duty and are part of the parent
legislation.
(k) On the other hand remissions vide Notification of 25th December,
1937 are in exercise of powers under Section 9 of the Stamp Act
and would apply to those instruments that would be chargeable
to stamp duty in the normal course at the rates prescribed in
Scheduled I/IA.
(l) Such remission is granted by a subordinate legislation.
(m) There can be no remission in respect of instruments that are
exempt from duty.
(n) The legislature in its wisdom chose to grant exemption to certain
classes of instruments while conferring the power to grant
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remission in respect of certain instruments that are otherwise
chargeable.
(o) Section 9 and Section 3 of the Stamp Act do not control each
other. Section 3 is subject to the provisions of the Act which
include Section 9, under which Notification of 25th December,
1937 was issued.
(p) Section 9 confers an independent power of reduction/remission
of duty and which power is independent of the levy prescribed by
Section 3.
(q) Section 9 is not entry specific and it is not at all necessary to
issue a Notification referable to a particular Article in either
Schedule-I or Schedule-IA.
(r) The non-obstante clause in proviso to Section 3 of Stamp Act has
overriding effect only qua clauses (a), (b) and (c) and Schedule-I
set out in Section 3 of the Act. Section 9 is not affected by
insertion of the proviso in Section 3 of the Act.
(s) 1958 Amendment Act only substitutes the pre-existing Schedule-
IA with the new Schedule-IA, without affecting any other
provisions of the Act or notifications issued thereunder; thus the
Notification of 25th December, 1937 is not at all affected by the
1958 Amendment and continues to apply.
(t) Notification of 25th December, 1937 is not entry specific and
deals with different classes of instruments; inapplicability of
Schedule-I in Delhi by virtue of 1958 Amendment does not
affect the applicability of the Notification of 25th December,
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1937 to various instruments in Schedule-IA (brought about by
the 1958 Amendment).
(u) The remission granted under Section 9 would not be taken away
by any change in the tariff in Schedule-IA or substitution of one
Schedule-IA with another so long as there is an instrument of the
class covered by the Notification of 25th December, 1937.
(v) By virtue of Article 372 of the Constitution, Notification of 25th
December, 1937 continues to apply even after coming into force
of the Constitution of India.
(w) Govt. of NCT of Delhi has not revoked the Notification of 25 th
December, 1937.
11. Per contra, the counsel for the petitioner CCRA, on the aspect of
maintainability of the Reference has argued:
(i) That Section 57 of the Act is not adjudicatory but advisory; there is
thus no requirement, that before any Reference is made
thereunder, there should be case pending.
(ii) Reliance is placed on:
(a) The Maharashtra Sugar Mills Ltd. supra holding that
Section 57 is not only for the benefit of the CCRA but
enures also the benefit of the party affected by the
assessment and can be demanded to be used, also by such
a party and Section 57 is further coupled with a duty cast
on CCRA, as a public officer, to do the right thing and
when an important and intricate question of law in respect
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of the construction of a document arises, it is incumbent to
make a Reference.
(b) Banarasi Dass Ahluwalia supra holding that an
application for reference under Section 57 is competent,
whether case is pending or not; that waiting for a case
would cause loss to the public.
12. The counsel for the petitioner CCRA, on merits contended,
(i) That the 1937 Notification was in the context of Schedule-I of
the Stamp Act and cannot apply once Schedule-I was substituted by
Schedule-IA; that there is no automatic application of notification
unless the State Government does so expressly.
(ii) Reliance is placed on:
(A) AREVA T and D Lightning Arresters Pvt. Ltd. Vs.
Additional Secretary Departmental of Revenue and
Disaster Management Government of Puducherry 2009
(5) MLJ 622 relating to Puducherry, also a Union Territory
and holding that there is no automatic application of any
notification of Central Government and that unless the
State Government notifies by a Rule or an order any
decision to reduce or commit, the question of application
of notification does not arise.
(B) Judgment dated 2nd February, 2012 of the High Court of
Calcutta in CP No.627/2011 titled Emami Biotech
Limited & Anr. Vs. State but which only notices the
contentions and does not decide anything.
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(C) Judgment dated 25th April, 2014 of the Division Bench of
the High Court of Punjab & Haryana in CWP
No.15164/2011 (O&M) titled Minder & Ors. Vs. State of
Haryana & Ors. holding that the 1937 Notification would
not be valid as the basic substratum of the notification had
undergone sea change with the enactment of 1956 Act.
(D) Qudrat Ullah Vs. Municipal Board, Bareilly AIR 1974
SC 396, in the context of U.P. (Temporary) Control of
Rent and Eviction Act holding that the general principle is
that an enactment which is repealed is to be treated as if it
had never existed, except as to transactions past and
closed.
13. Having heard the learned Amicus Curiae and the counsel for the
petitioner CCRA fully on the aspect of maintainability of the Reference and
being of the view the Reference is not maintainable, we halted further
hearing the counsel for the petitioner CCRA on merits as it was felt that it is
not incumbent upon us to, inspite of holding the Reference to be not
maintainable, also adjudicate on merits, as the same would be detrimental in
the larger interest.
14. We hold the Reference to be not maintainable for the following
reasons:-
A. In our view the language of the statute is plain and
unambiguous and on a literal interpretation of the language of
the statute itself, the Reference which the petitioner CCRA is
empowered to make to this Court has to be of “a case” i.e. an
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instrument/document chargeable to stamp duty and in the
absence of “a case”, the power under Section 57 cannot be
invoked in vacuum/abstract.
B. Section 57(1) empowers the CCRA to “state any case” referred
to it under Section 56(2) “or otherwise coming to its notice”
and “refer such case”.
C. It is not the contention that the Collector of Stamps, under
Section 56(2), can make a Reference to CCRA „without any
case‟. Such Reference by the Collector can be only while acting
under Sections 31, 40 & 41 of the Act and all of which are in
the context of an instrument or document, either adjudication of
proper stamp duty payable whereon is sought from the
Collector or which is impounded or which is accidently left
unstamped. Thus when Section 57(1) empowers the CCRA to
“state any case referred to it under Section 56(2)”, the case is in
the context of an instrument or document.
D. While interpreting the words “or otherwise coming to its
notice” the word “case‟ cannot be given any different meaning
and has to necessarily mean adjudication of stamp duty qua an
instrument or document which may have come to the notice of
the CCRA otherwise than on a Reference by the Collector
while acting under Sections 31, 40 or 41 of the Act.
E. The words “or otherwise coming to its notice” cannot be read as
empowering the CCRA to, without any specific
document/instrument coming to its notice and without any need
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for determination/adjudication of stamp duty with respect
thereto by the High Court, make a Reference under Section 57
merely because CCRA sitting in its armchair is of the opinion
that remission being granted to a certain category/class of
documents is being wrongly granted and that a judgment of the
High Court upholding the said remission is not correct, as is the
position in this Reference Petition.
F. The position is placed beyond any pale of controversy by
Section 59(2) of the Act which requires this Court to, after
deciding the question raised in the Reference made by the
CCRA, forward its judgment to the CCRA and mandates the
CCRA to, on receipt of such copy “dispose of the case
conformably to such judgment”. If it were to be held that
Reference by CCRA to this Court under Section 57 is
permissible even in the absence of any instrument or document
and in vacuum/abstract, merely on CCRA without any case
before it seeking a legal opinion from this Court, there would
be no question of the CCRA, on receiving the judgment of this
Court disposing of the Reference, disposing of any case
conformably to the judgment of this Court.
G. The judgments relied upon by the counsel for the petitioner
CCRA to justify the maintainability of this Reference, even
without any instrument or document chargeable to stamp duty
being for adjudication before it also are not found to be holding
or supporting so. Rather, citing of the said judgments is a
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classic example of a stray word or sentence in a judgment in the
context of the controversy for adjudication therein not
constituting a precedent.
H. In Maharashtra Sugar Mills Ltd. supra, the Registrar of
Documents being of the view that a document presented for
registration was not sufficiently stamped, sent it to the Collector
of Stamps. The Collector of Stamps was also of the view that
the document was insufficiently stamped. The party to the
document liable for stamp duty controverted. However the
Collector of Stamps held the document to be insufficiently
stamped and directed payment of deficient stamp duty and
penalty. The party to the document liable for stamp duty filed a
suit against the other party to the document, for declaration that
the document did not fall in the class as held by the Collector
but was of a different class and in the alternative for
rectification of the document to truly reflect its intent. The suit
was decided, directing rectification of the document. The
outcome of the suit was reported to the Collector of Stamps and
Reference under Section 57 of the Stamps Act demanded to the
High Court. On the said request being not acceded to, the party
to the document on whom demand for deficient stamp duty and
penalty had been made, filed a writ petition seeking mandamus
to the CCRA to make Reference under Section 57. The said
writ petition was allowed and mandamus issued. The CCRA
approached the Supreme Court. It was in this context that the
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Supreme Court held that the power vested in the CCRA under
Section 57 is an obligation and for the benefit not only of the
CCRA but also of the other party, liable to pay the assessed
stamp duty and who is materially interested, also meaning that a
Reference cannot be unilateral by the CCRA and there
necessarily has to be a „other party‟. It was yet further held by
the Supreme Court that a decision on a Reference is not
necessarily based only on the reading of the entries in the
Schedule to the Stamp Act but may also depend upon the true
construction of the document, again meaning that a Reference
in vacuum, without there being any case, is not maintainable.
Noticing the scheme of the Stamp Act, it was further observed
that Chapter VI containing Section 57 is about the liability of an
instrument to duty and the adjudication thereof, again indicating
that there can be no Reference in vacuum without stamp duty
with respect to any instrument or document to be
determined/adjudicated. It would thus be seen that this
judgment, rather than supporting the maintainability of the
Reference is to the contrary.
I. In Banarsi Das Ahluwalia supra, the contention of the CCRA
which had been accepted by the High Court was, that since the
Reference under Section 56 of the Act to the CCRA already
stood disposed of and there was „no pending case‟, the demand
of the person liable to stamp duty on the instrument subject
matter thereof on the CCRA to make a Reference under Section
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57 of the Act to the High Court was not sustainable. It was then
the contention of the CCRA, that for CCRA to make a
Reference under Section 57, there has to be „a pending case‟
before the CCRA. The said contention was rejected by the
Supreme Court and it was held that the remedy available to a
citizen under Section 57 cannot be negated merely because the
CCRA has decided the Reference made to it or even if in
pursuance thereto the deficient stamp duty and penalty has been
paid/recovered. It was held that the Reference could be made
thereafter also and if decided in favour of the person liable to
stamp duty, the excess stamp duty and penalty paid could
always be refunded. Reference in this regard was made to
Section 59(2) supra requiring disposal of the case in conformity
with the judgment on the Reference. It would thus be seen, that
not only the said judgment also cannot be read as supporting a
Reference in vacuum, as CCRA has sought in this case but the
argument of CCRA itself then was contrary to what is
contended before this Court. Merely because it was held in the
context of the said judgment that there need not be a pending
case, cannot be construed as meaning that even in the absence
of a disposed of case or any specific document or instrument,
Reference is maintainable.
J. If it were to be held that Reference under Section 57 can be
sought in abstract, with the opinion of the CCRA alone being
placed before this Court, the person liable for stamp duty on the
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class of instruments with respect to which Reference is sought,
if adversely affected by the judgment make of this Court on
such Reference, would have no opportunity to its submissions,
neither before the Collector of Stamps nor before the CCRA
nor before a Bench of this Court of three or less Judges and in
each case a larger Bench will have to be constituted for
considering the challenge, thereby adversely affecting the rights
of the persons liable for the stamp duty on such instruments.
K. The view which we have taken, we find also taken by the
Reference Court in Usuf Dadabhai Vs. Chand Mahomed AIR
1926 Bom 51 (FB). It was held (i) that there must be a case
which is to be disposed of by the Revenue Authority on receipt
of the High Court judgment and if a reference in abstract were
to be entertained there would be no case for the Revenue-
Authority for disposal on receipt of the judgment of the Court;
(ii) that Section 57 (1) permits reference in relation to “any
case” whether referred to the CCRA under Section 56 or
otherwise coming to its notice and thus there necessarily has to
be a “case pending” and when there is no pending case there
can be no reference; (iii) that no substantial question of law can
be decided in abstract; and, (iv) that an obligation of the CCRA
to make a reference under Section 57 is enforceable obligation
and which action implies existence of a case.
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L. We also find the aforesaid to have been held by the Reference
Court in In Re: Marine Insurance Policies
MANU/WB/0463/1929 to be the consistent view of all the High
Courts in India.
M. Thereafter also, the same view was taken by the Reference
Court in Chief Controlling Revenue Authority Vs. Madras
Industrial Investment Corporation 79 LW 380, where it was
held that it is not permissible to the CCRA under the guise of its
powers under Section 57, to obtain the determination by this
Court of a hypothetical question; a purely abstract proposition
of law or a hypothesis in law however likely it may be that a
case corresponding to that hypothesis may later arise in
practice, cannot be referred to the High Court for resolution of a
conflict of cases or for decisions under Section 57; it is essential
that there should be in existence an actual case, which has to be
decided in the light of the opinion furnished by the Court with
regard to an actual document, and not merely to some
contemplated document.
N. Mention may also be made of the State of Bihar Vs. Rai
Bahadur Hurdut Roy Moti Lall Jute Mills AIR 1960 SC 378
and Dr. N.C. Singhal Vs. Union of India (1980) 3 SCC 29
holding that if the statutory provisions impugned are not
attracted, there is no occasion to decide on the vires thereof
inasmuch as any decision on the said question would in such a
case be purely academic.
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15. Having found the Reference not maintainable, if we still proceed to
adjudicate the Reference on merits, the same will defeat at least one of the
reasons given by us above for holding the Reference to be not maintainable.
16. Resultantly the Reference is disposed of as not maintainable and is
returned. Needless to state that this will not come in the way of CCRA
seeking a fresh Reference in an appropriate case coming before it including
with respect to a document or instrument of a class with respect to which
Reference in abstract was sought by way of this Reference.
17. We express our gratitude to Mr. Rajeev K. Virmani, Sr. Advocate for
the erudite assistance rendered, at the cost of his other professional
engagements.
No costs.
RAJIV SAHAI ENDLAW, J.
SANJIV KHANNA, J.
JAYANT NATH, J.
JANUARY 17, 2019
„pp/gsr‟..
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