# M/S Kingswood Hotel Pvt. Ltd. & Anr v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 721
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-09
- **Case number:** Writ -C No. 28403 of 2024
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kingswood-hotel-pvt-ltd-anr-v-state-of-u-p-ors-51333
- **Pages:** 18

## Headnote

(A) Civil Law - Stamp Duty & Registration -
Registration of Correction Deed - Indian
Stamp Act, 1899 - Article 34-A of Schedule
1-B - Sections 2(10), 2(16)- Section 4-
Several
instruments
used
in
single
transaction of sale, mortgage or settlement,
Registration Act, 1908 - Section 17 -
Compulsory registration of documents -
Constitution of India - Article 12 -Noida as
well as the stamp authorities are the
instrumentality
of
the
State
-
State
instrumentality cannot speak in two voices -
By the correction deed, no fresh stamp duty
can be levied treating it to be a new
conveyance or instrument liable for stamp
duty - Correction deed cannot be treated as
a fresh deed, if there is no transfer of right -
If no right is created, then it has to be
stamped as correction deed and not a fresh
deed.(Para -29,32)
(B) Indian Stamp Act, 1899 - Section 4 -
when multiple instruments are executed
to complete a transaction, only the
principal instrument should attract full
duty, while the subsequent instrument
should be charged nominal duty - In order
to complete the transaction between the
parties, section 4 of the Stamp Act will
come into play and subsequent correction
deed will not be chargeable to stamp duty
as a fresh deed, but only charged as per
the provision of section 4 of the Stamp
Act. (Para - 36, 39)

Commercial plot was allotted to a consortium
under a NOIDA scheme - lease deed was to be
executed in favor of a Special Purpose Company
(SPC) - inadvertent clerical error by NOIDA - lease
was executed in favor of another entity - Years
later, NOIDA admitted mistake and executed
correction deed - Stamp Authorities refused to
register it under Article 34-A - demanded full
stamp duty under Articles 23 & 35 - treated as a
new transfer deed - hence petition - seeking a
mandamus for registration of correction deed with
nominal stamp duty . (Para - 2 to 10)
HELD: - Respondents were directed to register
the correction deed upon presentation by the
parties within 10 days without treating it as a
fresh conveyance deed for stamp duty purposes.
Correction deed falls within the purview of Article
34-A of Schedule 1-B of the Indian Stamp Act,
1899 and must be registered accordingly. (Para -
42)
Petition allowed. (E-7)
List of Cases cited:

## Text

_Characters 0–39,787 of 54,691. This is a partial read: ask again with offset=39787 for what follows._

12 All. M/S Kingswood Hotel Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
721
10. This Court thanks both
counsel appearing on behalf of the
parties
for
their
ingenious
arguments made before this Court.

11.

With
the
above
observations, this writ petition is
dismissed.
----------
(2024) 12 ILRA 721
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2024

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Writ -C No. 28403 of 2024

M/S Kingswood Hotel Pvt. Ltd. & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Shiv Sagar Singh

Counsel for the Respondents:
C.S.C.

(A) Civil Law - Stamp Duty & Registration -
Registration of Correction Deed - Indian
Stamp Act, 1899 - Article 34-A of Schedule
1-B - Sections 2(10), 2(16)- Section 4-
Several
instruments
used
in
single
transaction of sale, mortgage or settlement,
Registration Act, 1908 - Section 17 -
Compulsory registration of documents -
Constitution of India - Article 12 -Noida as
well as the stamp authorities are the
instrumentality
of
the
State
-
State
instrumentality cannot speak in two voices -
By the correction deed, no fresh stamp duty
can be levied treating it to be a new
conveyance or instrument liable for stamp
duty - Correction deed cannot be treated as
a fresh deed, if there is no transfer of right -
If no right is created, then it has to be
stamped as correction deed and not a fresh
deed.(Para -29,32)
(B) Indian Stamp Act, 1899 - Section 4 -
when multiple instruments are executed
to complete a transaction, only the
principal instrument should attract full
duty, while the subsequent instrument
should be charged nominal duty - In order
to complete the transaction between the
parties, section 4 of the Stamp Act will
come into play and subsequent correction
deed will not be chargeable to stamp duty
as a fresh deed, but only charged as per
the provision of section 4 of the Stamp
Act. (Para - 36, 39)

Commercial plot was allotted to a consortium
under a NOIDA scheme - lease deed was to be
executed in favor of a Special Purpose Company
(SPC) - inadvertent clerical error by NOIDA - lease
was executed in favor of another entity - Years
later, NOIDA admitted mistake and executed
correction deed - Stamp Authorities refused to
register it under Article 34-A - demanded full
stamp duty under Articles 23 & 35 - treated as a
new transfer deed - hence petition - seeking a
mandamus for registration of correction deed with
nominal stamp duty . (Para - 2 to 10)
HELD: - Respondents were directed to register
the correction deed upon presentation by the
parties within 10 days without treating it as a
fresh conveyance deed for stamp duty purposes.
Correction deed falls within the purview of Article
34-A of Schedule 1-B of the Indian Stamp Act,
1899 and must be registered accordingly. (Para -
42)
Petition allowed. (E-7)
List of Cases cited:

1. C.W.C. Vs Adani Ports & S.E.Z. Ltd. & ors.,
(2022) 15 SCC 110

2. Jayalakshmi COELHO Vs Oswald Joseph
COELHO,(2001) 4 SCC 181

3. Srihari (Dead) through L.R. Ch. Niveditha
Reddy Vs Syed Maqdoom Shah & ors., (2015) 1
SCC 607

4. Kishore Singh Ravinder Dev & ors. Vs St. of
Raj.,(1981) 1 SCC 503
722 INDIAN LAW REPORTS ALLAHABAD SERIES
5. St. of U.P. Vs M/s SJP Infracon Ltd. & anr.,
Special Appeal Defective No. 27 of 202

6. M/s Logix Infomedia (P) Ltd. Vs St. of U.P. &
ors., Writ C No. 18969/2021

7. Srihari (Dead) Vs Syed Maqdoom Shah &
ors.,(2015) 1 SCC 607
8. Jayalakshmi Coelho Vs Oswald Joseph
Coelho,(2001) 4 SCC 181
9. Smt. Sooraj Devi Vs Pyare Lal & anr., (1981)
1 SCC 500
10. Jang Bahadur Vs St. of U.P. & ors., Writ C
No. 14472/2021
11. Anjali Sahkari Avas Samiti Ltd. Vs St. of U.P.
& ors., 2014 (6) ADJ 594

(Delivered by Hon'ble Piyush Agrawal, J.)

1. Heard Shri Tarun Agrawal, along
with Shri Shiv Sagar Singh, learned
counsel for the petitioners and Shri Rishi
Kumar, learned ACSC for the State -
respondents.

2. The instant writ petition has
been
filed
for
issuing
mandamus
directing the respondent no. 2 to register
the correction deed dated 15.07.2015 in
the name of the petitioner no. 1 as per the
provision of Article 34-A of Schedule 1-B
of the Indian Stamp Act. The petitioners
have further prayed for a direction upon
the respondents to ensure registration of
the correction deed without any further
delay.

3. Learned counsel for the
petitioner submits that on 01.03.2010, the
New
Okhla
Industrial
Development
Authority (hereinafter referred to as, 'the
Noida') came out with a Scheme for
commercial plots for builders/developers in
Noida.

4. He further submits that the
scheme, which opened on 01.03.2010,
specifically contemplates a condition in
paragraph nos. 8(a), 8(d) & 8(e) providing
that in case the land is allotted, then special
purpose company shall be formed, which
shall carry out all their responsibility as
allottee and the execution of the lease deed
will be made in favour of the special
purpose company, which should be a
registered firm or an incorporated company.

5. The petitioner no. 1, being
consortium
lead
Member
having
shareholding of 90% and other Members,
participated in the said Scheme vide
application dated 20.03.2010. Thereafter,
vide letter dated 26.03.2010, the petitioner
was allotted the plot in question. After
depositing the requisite amount of 10%, the
petitioner approached the Noida to execute
the lease deed as per the terms of the
Scheme. Thereafter, on 31.03.2010, the
lease deed was executed. Vide letter dated
10.10.2011, the petitioner informed the
Noida to an error on their part in execution
of the lease deed dated 31.03.2010.

6. He further submits that in
absence of lease deed having been
registered in favour of the petitioner
(special purpose company), the land could
not be used for the required purpose.
Further, the petitioner would not be able to
commence its project as none of the
bankers and financial institutions were
willing to extend any credit facility to the
petitioners. After great persuasion and
various correspondence took place between
the petitioners and the Noida, after a lapse
of five years & 4 months, the Noida
realized its mistake and agreed to enter into
a correction deed and admitted the same as
an inadvertent mistake on the part of Noida
12 All. M/S Kingswood Hotel Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
723
and executed the correction deed dated
15.07.2015.

7. He further submits that
thereafter, the petitioners presented the
correction deed to be registered as per the
provisions of Article 34-A of Scheduled 1B of the Stamp Act. The respondent, vide
letter dated 21.07.2016, informed the
petitioners that the correction deed is to be
executed with full stamp duty. Thereafter,
vide order dated 25.11.2020, the Noida
cancelled the allotment of the plot in
question and proceeded to take possession
vide letter dated 27.11.2020, against which
the petitioner preferred Writ C No.
2219/2021, in which vide interim order
dated 18.02.2021, this Court has directed
the Noida not to create any third party
interest, which is still operating.

8. Learned counsel for the
petitioner further submits that due to nonregistration of the name of the petitioner as
SPC in the records of the Registrar, the
petitioner is not able to enjoy and use the
plot in question for the past 14 years, even
after deposit of a substantial amount
towards the total premium and paying the
stamp duty. He further submits that the
correction deed was executed purely on
account of clerical error, inadvertent
mistake, accidental slip on the part of the
Noida, which is duly admitted by it, but the
respondents (stamp authorities) are not
willing to admit the same and is treating the
correction deed as a separate instrument for
the purpose of stamp duty contrary to the
provisions of Article 34-A of Schedule 1-B
of the Stamp Act. He further submits that
the Noida being a State under Article 12 of
the Constitution, executed the correction
deed admitting that it was an inadvertent
mistake, accidental slip at its end; whereas,
the Office of the Commissioner, Stamp &
Registration is taking a different view
treating as if it was not a clerical mistake
and imposed the stamp duty on the
petitioner as per Article 23 of Schedule 1-B
of the Stamp Act, instead of Article 34-A of
Schedule 1-B of the Act.

9. In support of his submissions,
Shri Agrawal has placed reliance on the
judgements of the Apex Court in Central
Warehousing Corporation Vs. Adani Ports
& Special Economic Zone Limited &
Others [(2022) 15 SCC 110], Jayalakshmi
COELHO Vs. Oswald Joseph COELHO
[(2001) 4 SCC 181], Srihari (Dead)
through L.R. Ch. Niveditha Reddy Vs.
Syed Maqdoom Shah & Others [(2015) 1
SCC 607] and Kishore Singh Ravinder
Dev & Others Vs. State of Rajastahn
[(1981) 1 SCC 503].

10. Per contra, learned ACSC
submits that the correction deed is a fresh
transfer deed under the provisions of
section 2(10) of the Indian Stamp Act. The
instrument executed by the parties on
15.07.2015 named 'correction deed', by
which immovable property transferred by
one legal personality to an other legal
personality and therefore, the instrument in
question is chargeable with proper stamp
duty as per Articles 23 & 35 of Schedule 1B of the Stamp Act on the date of its
execution. He further submits that on
perusal of the letter dated 04.08.2015, it is
clear that the inadvertent mistake was on
the part of the petitioner in the execution of
the lease deed dated 31.03.2010.

11. After hearing learned counsel
for the parties, the Court has perused the
record.

12. The record reveals that a
scheme dated 01.03.2010 was floated by
724 INDIAN LAW REPORTS ALLAHABAD SERIES
the Noida for allotment of commercial
plots to builders/developers, in which
clauses 8(a), 8(d) & 8(e) read as under:-

8. In case if bidders have
formed a consortium:
a) Members of consortium
will have to specify one Lead
Member
who
alone
shall
be
authorized to correspond with
authority. Lead Member should be
the single largest share holder
having at lease 26% share in the
consortium. The shareholding of
the Lead Member in the consortium
shall remain at least 26% till the
temporary
occupancy/completion
certificate of at least one phase of
the project is obtained from the
Noida.
Each
member
of
the
consortium with equity stake of at
least 10% will be considered as
"Relevant Member". The Lead
Member of the consortium must
necessarily
be
Firm/Company
registered
in
India
with
the
appropriate statutory authority.
b) ....
c) ....

d)
The
members
shall
submit
a
registered/notarized
Memorandum of Agreement (MOA)
conveying their intent to jointly
apply for the scheme, and in case
the plot is allotted to them to form a
'Special
Purpose
Company',
hereinafter called SPS, that will
subsequently carry out all their
responsibilities as the allottee (s).
The registered MOA must specify
the equity shareholding of each
member of consortium in the
proposed SPC. The SPC must
necessarily
be
a
company
registered
in
India
with
the
appropriate statutory Authority.
e) Execution of the lease
deed will be made in favour of
either relevant members or special
purpose company (SPC), which
should be a registered firm or an
incorporated company. However,
the area of each of such subdivided
plots
purposed
for
execution
if
lease
deed,
as
described above, should not be less
than 20,000 sq. mtr. and the said
sub-division
should
be
in
accordance
with
the
planning
norms of NOIDA. The lead member
of the consortium shall have to
retain
at
least
26%
of
the
shareholding as per MOA, till the
temporary
occupancy/completion
certificate at least one phase of the
project
is
obtained
from
the
NOIDA.

13. The said clauses contemplate
that if the land is allotted, then a special
purpose company is to be incorporated and
the lease deed must be in its favour to carry
out development work. In the event the
lease deed is not executed in the name of
special purpose company, the project
cannot be commenced.

14. Admittedly, the land was
allotted to the petitioner no. 2 and the lease
deed was executed on 31.03.2010, but due
to inadvertent mistake on the part of the
Noida, the lease deed was not executed in
the name of special purpose company, i.e.,
the petitioner no. 1. The said fact was
pointed out to the Noida, but at the first
instance, it was not accepted, to which
various correspondence were made as
annexed along with the writ petition. The
Noida realized its mistake and executed a
12 All. M/S Kingswood Hotel Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
725
correction deed on 15.07.2015. According
to the correction deed, it clarifies its
mistake and incorporates/corrects the name
of the of M/s Kingswood Hotels Private
Limited (SPC of M/s Madhvilata Granite
Indian Limited consortium). The other
terms & conditions, including the original
tenure, remained unchanged.

15. The record further shows that
the correction deed did not affect, alter,
amend or modify any of the terms
contained
in
the
lease
deed
dated
31.03.2010. The Noida corresponded with
the stamp authority for registration of the
correction deed. By letter dated 30.05.2016
(Annexure No. 8), the stamp authority
refused to treat the correction deed as an
instrument referred to Article 34-A of
Schedule 1-B of the Stamp Act. The record
further shows that the Noida, by executing
a correction deed dated 15.07.2015, admits
its mistake. Once the State Government,
i.e., Noida, admits its mistake and executed
the correction deed correcting the name of
the petitioner no. 1 as a special purpose
company,
the
respondents
(stamp
authorities) have no good reason for
imposing stamp duty again by giving a
nomenclature of a transfer deed.

16. Under the Stamp Act, lease and
conveyance
are
separately
and
independently defined in sections 2(10) &
2(16) of the said Act. The record shows that
no where the lessor has ever stated that the
instrument dated 31.03.2010 or correction
deed dated 15.07.2015 is a conveyance and
not a lease. The lessor continues to be the
owner of the property under the lease deed
dated 31.03.2010 and correction deed dated
15.07.2015. The petitioner has no right to
enjoy and use the property in question in
absence of registration of correction deed
and possession.
17. The Division Bench of this
Court in State of U.P. Vs. M/s SJP
Infracon Limited & Another [Special
Appeal Defective No. 27 of 2021, decided
on 25.06.2021] has held as under:-

5. Sri Sanjay Goswami,
appearing on behalf of the State
(appellant), submitted that the
Stamp Act is a taxing statute. Being
a
taxing
statute,
equitable
considerations are relegated to the
background.
What
is
to
be
considered is whether the stamp
duty imposed on the instrument is
valid. If so, whether, under the
provisions of the Stamp Act, there
could be a refund of stamp duty to
the first respondent. According to
him, by Section 3 of the Stamp Act
stamp duty is chargeable on the
instrument at the rate specified in
the Schedule. In the State of Uttar
Pradesh, vide section 3 (aa) of the
Stamp Act, on an instrument of
lease, stamp duty chargeable is as
specified in Article 35 of Schedule
1-B. Article 35 (b) of Schedule I-B
of
the
Stamp
Act
becomes
applicable where the lease is
granted for a fine or premium or
for money advanced and where no
rent is reserved; and Article 35 (c)
of Schedule I-B becomes applicable
where the lease is granted for a fine
or premium or for money advanced
in addition to rent reserved. On
instruments contemplated under
Article 35 (b) or Article 35 (c) of
Schedule 1-B, the stamp duty is
payable as on a deed of conveyance
under Article 23 (a) of Schedule 1B either on the premium set forth in
the lease or on the market value of
the subject of the lease. The
726 INDIAN LAW REPORTS ALLAHABAD SERIES
original lease instrument dated
15.11.2010 between GNIDA and
the first respondent specified the
premium as Rs.228,94,57,090/- and
stamp duty was paid accordingly.
The
rectification
deed
dated
07.02.2013 between GNIDA and
the first respondent though reduces
the area leased out from 198135.62
square meter to 126302 square
meter but does not amend the
premium set forth in the original
lease instrument. Thus, no excess
stamp
duty
has
been
paid.
Otherwise
also,
there
is
no
challenge by the writ petitioner
(first respondent herein) as to the
correctness of the stamp duty
charged on the instrument of lease
dated 15.11.2010 or the deed of
rectification
dated
07.02.2013.
Under these circumstances, the
claim for refund of excess stamp
duty paid is misconceived. In so far
as the claim for allowances in
respect of alleged spoiled stamps is
concerned,
the
same
is
not
maintainable
because
the
provisions
relating
to
such
allowances
are
not
attracted.
According to him, the provisions of
Section 49 (d) (1) & (2) of the
Stamp Act are not applicable as the
instrument
of
lease
is
not
completely void from the beginning
nor it has been rendered unfit for
the purpose originally intended as
the demise made by it continues to
operate albeit for a reduced area.
He submitted that the Apex Court's
judgment in Libra Buildtech case
(supra) is not applicable on the
facts of this case as that was a case
where the instrument chargeable to
stamp duty was executed under
orders of the court and it was
cancelled by order of the court.
Thus, there the instrument was
rendered unfit for the purpose
originally intended. Whereas here
the instrument of lease remains
operable. He submitted that even if
it is assumed that the Principal
Secretary had no power to review,
the earlier order passed by the
Joint Secretary was ex facie illegal
and, therefore, the writ court ought
not to have issued a direction to
enforce the order which had no
sanctity in law. He, thus, prayed
that the judgment and order of the
learned Single Judge being not
legally sustainable be set aside. In
the alternative, it was urged by him
that if the petitioner had suffered
any loss on account of the conduct
of GNIDA it could proceed against
it, as per law, but claim for refund
against the State is not sustainable.
6.
In
support
of
his
submissions, Sri Goswami cited
following authorities:
(i) (2009) 13 SCC 301 : S
N Mathur Vs. Board of Revenue
and others -- In this decision, the
apex court with respect to the
scheme of the Stamp Act observed
as follows: (a) that the object of the
Stamp Act is generation of revenue,
it is therefore a fiscal enactment
and
has
to
be
interpreted
accordingly; (b) that stamp duty is
levied
with
reference
to
the
instrument and not in regard to the
transaction,
unless
otherwise
specifically provided in the Act; (c)
that stamp duty is determined with
reference to the substance of the
transaction as embodied in the
instrument and not with reference
12 All. M/S Kingswood Hotel Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
727
to
the
title,
caption
or
nomenclature of the instrument; (d)
that
for
classification
of
an
instrument, that is to determine
whether
an
instrument
comes
within a particular description in
an article in the Schedule to the
Act, the instrument should be read
and construed as whole; (e) where
an instrument falls under two or
more descriptions in the Schedule
to the Act, instrument shall be
chargeable with only one duty, that
is
the
highest
of
the
duties
applicable to different description.
But where an instrument relates to
several distinct matters, it shall be
chargeable with the aggregate
amount of duties to which separate
instruments would be chargeable.
(ii) AIR 1959 Allahabad
583 (SB): Mohd. Mustafa Ali Khan
Vs. Raj Rajeshwari Devi -- In this
decision, a Special Bench of this
Court, comprising three judges,
inter alia, reiterated the legal
principle that the stamp duty
payable upon an instrument must
be determined by referring to the
terms of the instrument, and that
the Court is not entitled to take into
consideration evidence de hors the
instrument itself.
(iii) AIR 1961 Supreme
Court 1047, Commissioner of Sales
Tax, U.P. Vs. Modi Sugar Mills
Limited.
--
In
this
case
a
Constitution Bench of the Apex
Court, comprising five judges, inter
alia, held that: in interpreting a
taxing
statute,
equitable
considerations are entirely out of
place. Nor can taxing statutes be
interpreted on any presumptions or
assumptions. The court must look
squarely at the words of the statute
and interpret them. It must interpret
a taxing statute in the light of what
is clearly expressed: it cannot
imply
anything
which
is
not
expressed;
it
cannot
import
provisions in the statutes so as to
supply any assumed deficiency.
(iv) (2011) 7 SCC 493 :
ITC LTD. Vs. State of U.P. and
others. -- In this case, the Apex
Court upon finding that NOIDA
had charged less towards premium
for lease, to save the demise, even
after execution and registration of
the
lease
instrument,
gave
opportunity to the allottee (lessee)
to make good the deficiency within
a
specified
period.
In
the
alternative, it was directed that if
the allottee was not interested in
retaining the lease by making good
the deficient amount, it was entitled
to receive back the money already
paid by it, including stamp duty
paid on the instrument of lease,
from NOIDA. This decision has
been cited to demonstrate that the
court had not fastened liability on
the State, but on NOIDA, to refund
the stamp duty.
9. Before we dwell on the
issues framed by us, it would be
apposite to examine the nature of
the Stamp Act and the rules of
interpretation that would apply to
have a clear understanding of its
provisions. With regard to the
nature of the Stamp Act, there is no
shadow of doubt that it is a fiscal /
taxing statute framed under Entry
44 of List III (Concurrent List) of
the
Seventh
Schedule
of
the
Constitution of India {vide S.N.
Mathur versus Board of Revenue &
728 INDIAN LAW REPORTS ALLAHABAD SERIES
others, (supra)}. Stamp Duty is
nothing but a form of tax, the object
of which is to generate revenue. In
Government of Andhra Pradesh &
Others versus P. Laxmi Devi (Smt).,
(2008) 4 SCC 720, the Apex Court
in paragraph 19 of its judgment
observed: "It is well settled that
stamp duty is a tax, and hardship is
not relevant in construing taxing
statutes which are to be construed
strictly. As often said, there is no
equity in a tax vide CIT v. V.M R P
Firm Muar , AIR 1965 SC 1216. If
the words used in a taxing statute
are clear, one cannot try to find out
the intention and the object of the
statute. Hence, the High Court fell
in error in trying to go by the
supposed object and intendment of
the Stamp Act, and by seeking to
find out the hardship which will be
caused to a party by the impugned
amendment of 1998."
10. When a statute levies a
tax it does so by inserting a
charging section by which liability
is created or fixed and then
proceeds to provide the machinery
to make liability effective. It,
therefore, provides the machinery
for assessment of the liability
already fixed by the charging
section, and then provides the mode
for the recovery and collection of
tax, including penal provisions
meant to deal with defaulters. The
components which enter into the
concept of a tax are: (1) the
character of the imposition known
by its nature which prescribes the
taxable event attracting the levy;
(2) a clear indication of the person
on whom the levy is imposed and
who is obliged to pay the tax; (3)
the rate at which the tax is
imposed; ((4) the measure or value
to which the rate will be applied for
computing the tax liability (vide
Govind Saran Ganga Saran V. CST,
1985 Supp SCC 205, para 6). In the
context of the Stamp Act (vide
charging Section 3), the taxable
event is the execution of an
instrument
specified
in
the
Schedules. Stamp duty is levied
with reference to the instrument
and not the transaction, unless
otherwise
specifically
provided.
The stamp duty is levied at the rate
specified in the Schedules and the
person who is liable to pay the
stamp duty is specified in Section
29 of the Stamp Act.
12. From the law noticed
above, the legal position that
emerges is as follows: (i) Stamp Act
is
a
taxing
statute;
(ii)
in
construing taxing statutes equity
and hardship are not relevant, one
has to strictly look at the words/
language used and there is no room
for searching intendment or of
drawing any presumption while
construing the provisions of a
taxing statute; (iii) in case of
ambiguity in charging provisions,
the benefit must necessarily go in
favour of subject / assessee, but in
case of ambiguity in an exemption
provision, the benefit of ambiguity
must be strictly interpreted in
favour of the Revenue/ State.
However, if, by a strict construction
of
the
exemption
clause,
the
ambiguity is resolved and the
subject falls within the exemption
clause then to give full play to the
exemption
clause
a
liberal
construction may be made.
12 All. M/S Kingswood Hotel Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
729
15. A plain reading of the
extracted charging provision would
reflect that the stamp duty is
payable as per the value of the
premium or advance set forth in the
lease instrument. There is no
dispute inter se parties that the
stamp duty paid on the lease
instrument is as per the value of the
premium set forth in the lease
instrument.
Importantly,
the
correction
deed,
dated
7th
February 2013, which has been
brought on record as Annexure 5 to
the writ petition, though reduces
the area of land leased out, also
does not make any indication with
regard to reduction of the premium
payable. Rather, at page 179 of the
paper-book of the appeal, the
correction deed, after making a
declaration
with
regard
to
reduction in the area of land leased
out, declares that "except as
hereinafter varied/ modified the
original
lease
deed
dated
15.11.2010
which
was
duly
registered in the office of SubRegistrar Gautam Budh Nagar
registered on 16.11.2010 Bahi
No.1, Gild No.7558 Page No.77 to
110 on Sl No.23383 shall continue
to have full force and effect. Plot
number, location and boundaries
are same. Consequently credibility
of
stamp
duty
is
remains
unaffected." Once this is the
position, the submission of Sri
Goswami that the stamp duty paid
on the lease instrument read with
the deed of correction was as per
the provisions of the Stamp Act,
and it was not over paid, appears
correct,
particularly,
when,
according
to
the
charging
provision, stamp duty is payable on
value of premium set forth in the
lease
instrument.
Under
these
circumstances,
even
if
by
a
subsequent
letter
GNIDA
had
reduced the premium, as is the case
of the first respondent, there would
be no impact on the stamp duty
leviable as that would be on the
premium set forth in the lease
instrument,
which
remained
unchanged. It is thus held that the
stamp duty paid by the writ
petitioner was not in excess than
what was payable on the lease
instrument as per the charging
section. That takes us to issue
no.(ii) formulated above.
16. While addressing issue
no. (ii), we have to determine
whether in view of reduction of the
demised area and the developments
that took place after execution of
the lease instrument, by virtue of
the provisions of the Stamp Act
contained in Section 49 (d) (1) (2)
and (5), the first respondent is
entitled to refund of the stamp duty
which it had paid for lease of that
portion of the land which it had to
surrender. As we have already
noticed that in a taxing statute
equity has no place, the Court has
to
find
out
whether
upon
construction of the provisions of the
Stamp Act a case for making
allowance for impressed stamps
spoiled
in
making
the
lease
instrument of that excess area is
made out or not.

18. Further, the Division Bench of
this Court in M/s Logix Infomedia (P) Ltd.
Vs. State of U.P. & Others [Writ C No.
730 INDIAN LAW REPORTS ALLAHABAD SERIES
18969/2021, decided on 01.09.2021] has
held as under:-

8. Countering this, the
learned counsel for the petitioner
has urged that in the impugned
notice, dated 27.5.2021, given by
the respondent-Authority, the time
period of one year has been
counted from 28.7.2020, that is
from the date on which the U.P. Act
No. 25 of 2020 came into force. It
is contended that that action of the
NOIDA
Authority
is
patently
arbitrary and is in the teeth of the
second part of the proviso to
Section 7 of the 1976 Act. He
contends that the second part of the
proviso
to
Section
7
clearly
provides that where the period
provided in first part for utilization
of the land has already lapsed
before the commencement of the
amending Act, the Authority is to
give a notice to the allottee to use
the land for the purpose it was
allotted within a period of one year
and if within the above period of
one year the allottee does not use
the land, it is then that the
allotment and lease deed would
stand automatically cancelled. In
support of the above contention, the
petitioner
has
relied
upon
a
judgement of this Court dated
2.2.2021 passed in Writ-C No. 2238
of 2021 (M/s. J.M. Housing Limited
Vs. State of U.P. and others), copy
of which has been enclosed as
Annexure- 37 to this petition.
10.
Dealing
with
the
second submission of the learned
counsel for the petitioner first,
which is based on the so-called
supplementary lease deed dated
7.1.2013, it is observed that it is not
a supplementary lease deed but a
correction deed that corrects the
area of the plot mentioned in the
original lease deed so as to be read
as 8100 sq. meters in place of 5184
sq.
meters.
Similarly,
it
incorporates necessary corrections
regarding the premium, lease rent,
etc.. In this correction deed of
7.1.2013
it
is
specifically
mentioned that all other terms and
conditions of the original lease
deed and allotment letter shall
remain unchanged and applicable
as well as binding upon the lessee.
Therefore, no further benefit in
respect of extension of time can
enure to the petitioner on the basis
of the deed executed on 7.1.2013.
11. As regards the first
submission of the learned counsel
for the petitioner regarding the
impugned
notice/order
dated
27.5.2021 being arbitrary and in
the teeth of the true import of the
second part of the proviso to
Section 7 of the 1976 Act, on
perusal
of
the
record
and
consideration of the submissions of
the respective parties, it appears to
us that this contention of the
learned counsel for the petitioner
has force. It be noticed that to
Section 7 of the 1976 Act a proviso
was inserted by U.P. Act No. 25 of
2020. The published Statement of
Objects and Reasons of U.P. Act
No.25 of 2020 is extracted below:
"The
Uttar
Pradesh
Industrial Area Development Act,
1976 (U.P. Act No.6 of 1976) has
been enacted to provide for the
constitution of an Authority for the
development of certain areas in the
12 All. M/S Kingswood Hotel Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
731
State into industrial and urban
township and for the matters
connected therewith. In order to
accelerate industrialisation in the
State, it was felt necessary to
increase the land bank. Hence it
was decided that if the industrial
unit is not established within a
period of five years from the date of
possession, or within the period
fixed for such utilisation, whichever
is longer, the lease deed will stand
automatically canceled and the
land shall vest with the Industrial
Development Authority. Where the
aforesaid period has lapsed before
the commencement of this Act, the
Authority shall give notice to the
allottee and if the allottee does not
use the land within the period of
one year mentioned above, the
allotment and lease deed shall be
deemed to have been automatically
cancelled. In view of the above, it
had
been
decided
to
amend
aforesaid Act.
Since the State legislature
was not in session and immediate
legislative action was necessary to
implement the aforesaid decision,
the Uttar Pradesh Industrial Area
Development
(Amendment)
Ordinance, 2020 ( U.P. Ordinance
No.16 of 2020) was promulgated by
the Governor on July 28, 2020.
The Bill is introduced to
replace the aforesaid Ordinance."
12. The amended Section 7
of 1976 Act, after insertion of the
proviso by U.P. Act No.25 of 2020,
reads as follows:
"7. Power to the Authority
in respect of transfer of land. - The
Authority
may
sell,
lease
or
otherwise
transfer
whether
by
auction, allotment or otherwise any
land or building belonging to the
Authority
in
the
industrial
development area, on such terms
and conditions as it may, subject to
any rules that may be made under
this Act, think fit to impose.
Provided that where any
land so allotted is not utilised for
the purpose for which it was
allotted within the period of five
years from the date of possession
or within the period fixed for such
utilisation in the conditions of
allotment, whichever is longer, the
lease deed will stand cancelled and
the land shall vest with the
Authority. Provided further where
the aforesaid period has already
lapsed before the commencement of
this Act, the Authority shall give a
notice to the allottee to use the land
for the purpose for which it was
allotted within a period of one year
and if within the above period of
one year the allottee does not use
the land, then the allotment and
lease
deed
shall
stand
automatically cancelled.".
13. A coordinate Bench of
this Court in its judgment dated
2.2.2021 in M/s. J.M. Housing
Limited (supra) has observed as
follows:
"5. The 1st part of the
proviso provides that where any
land so allotted is not utilized for
the purpose for which it was
allotted within a period of 5 years
from the date of possession or
within the period fixed for such
utilization in the conditions of
allotment, whichever is longer, the
lease deed will stand cancelled and
the land shall vest with the
732 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority. The 2nd part of the
proviso provides that where the
aforesaid period has already lapsed
i.e. where the allotted land is not
utilized within 5 years from the
date of possession or within the
specified period in the terms of
allotment and the said period has
expired before the commencement
of the Amending Act, the authority
is obliged to give a notice to use the
land for the purpose for which it
was allotted within a period of one
year and if within the above period
of one year the allottee does not
use the land, then the allotment and
lease
deed
shall
stand
automatically cancelled.
6.
Thus,
the
condition
precedent for applicability of the
2nd part of the proviso is that the
period for utilization should have
expired before the commencement
of the Amending Act i.e. 28.7.2020
and the Authority before cancelling
the allotment / lease had given a
notice to the allottee to utilize the
land within a year. Sri Singh, on
instructions, does not dispute that
no notice as contemplated in the
2nd part of the proviso to Section 7
of the Act was ever issued to the
petitioner
which
is
also
authenticated in the impugned
order as the same does not refer to
issuance
of
any
such
notice,
rendering the order dated 7.1.2021
vulnerable in law."
14. The inter play of the
two parts of the proviso inserted to
Section 7 of the 1976 Act by the
amending Act (U.P. Act No.25 of
2020),
as
interpreted
by
a
coordinate Bench of this Court
(noticed above), is in sync with the
statement of objects and reasons of
the amending Act and, therefore,
we are in respectful agreement with
the view taken therein. To put it
simply, under the first part of the
proviso the lease deed stands
cancelled where the land allotted is
not utilized for the purpose for
which it was allotted within the
period of five years from the date of
possession or within the period
fixed for such utilisation in the
conditions of allotment, whichever
is longer. But where that period has
expired before the commencement
of the amending Act, that is before
28.07.2020, the second part of the
proviso comes into play. Under
which, the Authority is to give a
notice to the allottee to use the land
for the purpose for which it was
allotted within a period of one year
and if within the above period of
one year the allottee does not use
the land, then the allotment and
lease deed stand automatically
cancelled.

19. Similar view has been taken by
the Apex Court in Srihari (Dead) Vs. Syed
Maqdoom Shah & Others [(2015) 1 SCC
607] and Jayalakshmi Coelho Vs. Oswald
Joseph Coelho [(2001) 4 SCC 181].

20. The registration of the correction
deed was compulsory as per section 17 of the
Registration Act, 1908 and the property in
question could not be used and enjoyed by the
petitioner on account of the inadvertent
mistake on the part of the Noida in the first
place and takes on account of non-registration
of the correction deed are undisputable.

21. Further, a mistake is apparent
on the face of record as it is a purely
12 All. M/S Kingswood Hotel Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
733
clerical error in the instrument. Since
inadvertent mistake has been committed by
the Noida, the same can be rectified in view
of the judgement of the Apex Court in Smt.
Sooraj Devi Vs. Pyare Lal & Another
[(1981) 1 SCC 500].

22. In Smt. Sooraj Devi Vs. Pyare
Lal & Another [(1981) 1 SCC 500], the
Apex Court has held as under:-

"4.
The
sole
question
before us is whether the High Court
was right in refusing to entertain
Criminal
Miscellaneous
Application No. 5127 of 1978 on
the ground that it had no power to
review
its
order
dated
Ist
September, 1970. Section 362 of the
Code
of
Criminal
Procedure
declares : "Save as otherwise
provided by this Code or by any
other law for the time being in
force, no Court, when it has signed
its
judgment
or
final
order
disposing of a case, shall alter or
review the same except to correct a
clerical or arithmetical error". It is
apparent that what the appellant
seeks by the application is not the
correction
of
a
clerical
or
arithmetical error. What she desires
is a declaration that the High Court
order dated Ist September, 1970
does not affect her rights in the
house
property
and
that
the
direction to restore possession to
Pyare Lal is confined to that
portion only of the house property
respecting which the offence of
trespass was committed so that she
is not evicted from the portion in
her possession. The appellant, in
fact, asks for an adjudication that
the right to possession alleged by
her remains unaffected by the order
dated Ist September, 1970. Pyare
Lal disputes that the order is not
binding on her and that she is
entitled to the right in the property
claimed by her. Having considered
the matter, we are not satisfied
that
the
controversy
can
be
brought within the description
"clerical or arithmetical error". A
clerical or arithmetical error is an
error occasioned by an accidental
slip or omission of the court. It
represents that which the court
never intended to say. It is an
error apparent on the face of the
record and does not depend for its
discovery
on
argument
or
disputation. An arithmetical error
is a mistake of calculation, and a
clerical error is a mistake in
writing
or
typing.
Master
Construction Co. (P) Ltd. v. State
of Orissa and Another."

23. Record further shows that an
unintentional mistake of Noida, which
occurred due to accidental slip, can be
rectified. The Noida, at the first instance,
executed the lease deed not in favour of the
Special
Purpose
Company,
i.e.,
the
petitioner no. 1, but in favour of the
petitioner no. 2, and realizing the said
mistake, which crept up due to accidental
slip, has now corrected its mistake by way
of executing a correction deed dated
15.07.2015.

24. The Apex Court in the case of
Jayalakshmi Coelho Vs. Oswald Joseph
Coelho [(2001) 4 SCC 181] has held as
under:-

"14.