# State of U.P v. M/S S.J.P. Infra. Ltd. & Anr. Opp. Parties

- **Citation:** (2023) 2 ILRA 894
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-25
- **Case number:** Special Appeal (D) No. 27 of 2021
- **Bench:** Manoj Misra, Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-m-s-s-j-p-infra-ltd-anr-opp-parties-47618
- **Pages:** 24

## Headnote

A. Revenue/Tax Law - Refund of the
Stamp Duty - Schedule 1-B of the Stamp
Act: Article 23(a), 35(b) - Indian Stamp
Act, 1899 - Section 3(aa), 49(d)(1) (2)
and
(5);
Seventh
Schedule
of
the
Constitution of India: Entry 44 of List III
(Concurrent List) - The legal position is:

(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
2 All. State of U.P. Vs. M/S S.J.P. Infra. Ltd. & Anr.
895
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/St..
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. (Para 12)

B. 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. 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, though reduces the area of
land leased out, also does not make any
indication w.r.t. reduction of the premium
payable. Rather, the correction deed, after
making a declaration w.r.t. 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 Sub-Registrar 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
remains unaffected." Once this is the position,
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, 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, whic

## Text

_Characters 0–39,983 of 84,624. This is a partial read: ask again with offset=39983 for what follows._

894 INDIAN LAW REPORTS ALLAHABAD SERIES
between mother (respondent no. 4) and
grandmother (petitioner no. 1), the balance
would certainly tilt in favour of mother,
who is respondent no. 4. However, I may
not be mis-understood that the grandmother
may not take proper care of minor, who is
her grand son, therefore, custody of corpus
with his mother can in no way be said to be
illegal, unlawful and the child has always
been remained with the custody of his
mother and was never at any point of time
in the custody of petitioner no. 1, therefore,
no case of transfer of custody from mother
of the corpus to his grandmother is made
out. However, in the totality of the facts
and circumstances and keeping in view the
aspirations
and
expectations
of
grandmother to visit and see her grand
child and shower her love and affection on
him, cannot be ignored and the same must
be dealt with a humanitarian hand in
respect of the fact that allegation and
counter allegations are made by petitioner
no. 1 and respondent no. 4 against each
other and father of the child is some what
out of picture in present petition. Thus,
although the prayer of petitioner no. 1 for
issuing writ of habeas corpus against
respondents and transfer of custody of
corpus, who is eight year old child of
respondent no. 4 and her husband, in favour
of his grandmother, is declined and refused
by this Court on the basis of discussion
mentioned
above.
In
my
considered
opinion, petitioner no. 1 shall have a
visitation rights over the child (petitioner
no. 2). However, this Court directs
respondent no. 4 to provide a right to meet
the corpus to petitioner no. 1, who is his
grandmother on regular basis preferably
once in a month subject to convenience of
the child, on a holiday, with prior
arrangement made by respondent no. 4, by
way
of
telephonic
consultation
with
petitioner no. 1, who is her mother-in-law,
at the place of choice of respondent no. 4.
The period of meeting of each day may
include a period of three to six hours at a
time, however, the meeting in a month may
be postponed if the examinations of child
are underway or on card. The meeting may
be supervised by respondent no. 4 to her
discretion.

23. With the above observations,
petition is finally disposed of.
----------
(2023) 2 ILRA 894
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.06.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE RAJIV JOSHI, J.

Special Appeal (D) No. 27 of 2021

State of U.P. ...Appellant
Versus
M/S S.J.P. Infra. Ltd. & Anr. ...Opp. Parties

Counsel for the Appellant:
Sri Sanjay Goswami

Counsel for the Opp. Parties:
Ms. Shreya Gupta, Sri Ravi Anand Agrawal, Sri
Ramendra Pratap Singh, Sri Shashi Nandan(Sr.
Advocate)

A. Revenue/Tax Law - Refund of the
Stamp Duty - Schedule 1-B of the Stamp
Act: Article 23(a), 35(b) - Indian Stamp
Act, 1899 - Section 3(aa), 49(d)(1) (2)
and
(5);
Seventh
Schedule
of
the
Constitution of India: Entry 44 of List III
(Concurrent List) - The legal position is:

(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
2 All. State of U.P. Vs. M/S S.J.P. Infra. Ltd. & Anr.
895
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/St..
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. (Para 12)

B. 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. 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, though reduces the area of
land leased out, also does not make any
indication w.r.t. reduction of the premium
payable. Rather, the correction deed, after
making a declaration w.r.t. 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 Sub-Registrar 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
remains unaffected." Once this is the position,
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, 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.
(Para 8(i), 13, 15)

C. Legal principles deducible from the
decision of the Apex Court, are as follows:

(i) where the instrument is rendered unfit
for the purpose for which it was executed,
the
claimants
can
seek
refund
u/s
49(d)(2) read with S. 50(3) of the Stamp
Act;
(ii) where an instrument is executed
under order of the Court and by the order
of the Court the instrument is cancelled
with liberty to seek refund of the stamp
duty paid, benefit of refund is not to be
denied on technical grounds of limitation
more so because an act of the Court is to
prejudice none; and
(iii) where a case for refund of stamp duty
can be brought u/s 49(d)(2) read with
Section 50(3), an interpretation which
advances the cause of justice and is based
on principle of equity, should be preferred.
(Para 25)

D. The claim of the first respondent for
allowance (refund of the stamp duty which it
had paid for lease of that portion of the land
which
it
had
to
surrender)
is
neither
sustainable under sub-clause (1) nor subclause (2) or sub-clause (5) of clause (d)
of Section 49 of the Stamp Act. When we
read the extracted provision as a whole, what is
noticeable is that allowance available under subclause (2) of clause (d) of Section 49 of the
Stamp Act is for impressed stamps spoiled to
execute
an
instrument
which
has
been
afterwards found unfit, by reason of any error
or mistake therein, for the purpose originally
intended. By virtue of Section 13(2) of the
General Clauses Act, 1897, singular shall
include plural, and vice versa, therefore,
the word stamp used in clause (d) would
include stamps. Whether an allowance
would be admissible for any part of the
stamps spoiled to execute an instrument
which fails in part, that is whether
allowance could be claimed for bad part
only, is an issue which has not been
specifically addressed by the provisions of
Section 49(d) of Stamp Act.
896 INDIAN LAW REPORTS ALLAHABAD SERIES
The provisions of the Stamp Act, at least those
that have been placed before us, are silent for
such an eventuality. In absence of clarity in
the provisions of the Stamp Act w.r.t.
admissibility of an allowance where the
instrument fails in part, the claim for
allowance would have to be rejected by
keeping in mind the general legal principle
that in case of ambiguity in an exemption
provision, the benefit of ambiguity must
be strictly interpreted in favour of the
Revenue/St.. An allowance though, strictly,
cannot be equated with an exemption but for
interpretation of an allowance strict rule of
interpretation would have to be applied at the
threshold to find out whether the subject falls
within its ambit or not because the initial burden
is on the subject who seeks allowance to make
out a case for allowance. Section 49(d) does
not contemplate allowance for spoliation
of stamps, where a composite instrument
embodying rights and liabilities fails only
in part and is good for the remaining part.
Otherwise
also,
on
simple
logic,
an
instrument executed by spoiling several
impressed stamps cannot be dissected to
sever out the bad part from the good, so
as to enable use of the good. In the instant
case, part of the lease instrument remained
operative therefore the instrument did not fail
the purpose originally intended. (Para 8(ii), 12,
28)

E. In tax matters equity has a limited role.
Doctrine of unjust enrichment is based on
equitable principles and has statutory
recognition in Sections 65 & 72 of the
Contract
Act.
As
tax
is
compulsory
exaction of money by a sovereign with the
sanction of law and is not payment for
services rendered or to be rendered, a
refund of the tax or the duty paid under a
fiscal statute is not to be made unless and
until the duty paid is found not payable.
The stamp duty paid was as per the tenor of the
instrument
hence,
there
was
no
unjust
enrichment of the St. because the stamp duty
paid to it was as per the provisions of the Stamp
Act. No doubt, the Stamp Act provides for
allowances, but, as already held above, the case
of the writ petitioner does not fall within the
purview of those allowances. (Para 8(iii), 29)

F. A writ Court must not ordinarily set
aside an order the consequence of which
would be to revive an illegal order or
perpetuate
illegality.
The
claim
for
allowance was not sustainable under the
provisions of the Stamp Act (i.e. Section
49(d)), setting aside the order of the
Principal Secretary, with direction to
comply with the order of the Joint
Secretary,
would
be
to
perpetuate
illegality. Though the order of the Principal
Secretary was in effect a review of the earlier
order passed by the Joint Secretary and,
therefore, was not proper, but, the order of the
Joint Secretary dated 28.2.2019 was not correct
in law and, therefore, a direction to ensure its
compliance would be an exercise to perpetuate
'illegality. Hence, no direction ought to have
been issued for compliance of the order of the
Joint Secretary. (Para 8(iv), 8(v), 30)

In the instant case, the exercise for allowance
started on an application moved by the writ
petitioner before the Principal Secretary. When
it did not culminate in an order, a writ petition
was filed wherein direction was issued to decide
the claim. Pursuant to which, when application
was given, information was received by the writ
petitioner that the matter was already decided
and the claim had been rejected by the Principal
Secretary. Challenging the rejection of the
claim, a fresh writ petition was filed, which was
allowed and the Joint Secretary was directed to
pass a fresh order. Following this, the Joint
Secretary passed the order dated 28.2.2019. On
28.5.2019, the Principal Secretary passed a
contrary order. Interestingly, the order dated
28.5.2019 does not take note of the order of the
Joint Secretary dated 28.2.2019. It seems to us
that since, earlier, the direction of the Court was
to the Principal Secretary he may have passed
the order dated 28.5.2019 in good faith. But as
in the meantime the Joint Secretary had already
passed the order on 28.2.2019, pursuant to
subsequent order of this Court, the order of
the Principal Secretary was improper as
was rightly held by the learned Single
Judge. In case the Principal Secretary was
alone competent to pass the order, the
appropriate course for the St. was to move a
correction or clarification application seeking
clarification/correction in the order. (Para 30)
2 All. State of U.P. Vs. M/S S.J.P. Infra. Ltd. & Anr.
897
At this stage, it would be sufficient to observe
that since stamp duty was not collected by
GNIDA, a claim for refund of stamp duty as
against it would not be sustainable. But whether
GNIDA is liable for damages/loss, is a question
left open for the first respondent to raise at the
appropriate stage in an appropriate proceeding
before the appropriate forum in accordance with
the law. (Para 8(vi), 31)

Special appeal allowed. (E-4)

Precedent followed:

1. S.N. Mathur Vs Board of Revenue & ors.,
(2009) 13 SCC 301 (Para 6(i))

2. Mohd. Mustafa Ali Khan Vs Raj Rajeshwari
Devi, AIR 1959 Allahabad 583 (SB) (Para 6(ii))

3. Commissioner of Sales Tax, U.P. Vs Modi
Sugar Mills Ltd., AIR 1961 Supreme Court 1047
(Para 6(iii))

4. Government of Andhra Pradesh & others Vs
P. Laxmi Devi (Smt.), (2008) 4 SCC 720 (Para
9)

5. CIT Vs V.M R P Firm Muar, AIR 1965 SC 1216
(Para 9)

6. Govind Saran Ganga Saran Vs CST, 1985
Supp SCC 205 (Para 10)

7. Commissioner of Customs (Import), Mumbai
Vs Dilip Kumar & Co., (2018) 9 SCC 1 (Para 11)

8. Chief Controlling Revenue Authority, Board of
Revenue, Madras Vs B.P. Eswaran & ors., AIR
1970 Madras 349 (FB) (Para 20)

Precedent distinguished:

1. The Committee GIFL Vs Libra Buildtech Pvt.
Ltd. & ors., (2015) 16 SCC 31 (Para 2(iv))

2. ITC Ltd. Vs St. of U.P. & ors., (2011) 7 SCC
493 (Para 6(iv))

Present
special
appeal
assails
the
judgment and order dated 01.12.2020,
passed by Hon'ble Single Judge.
(Delivered by Hon'ble Manoj Misra, J.)

1. This intra court appeal arises from
a judgment and order of a Single Judge,
dated 01.12.2020, in Writ-C No.17744 of
2020, allowing the writ petition of the first
respondent.

FACTS GIVING RISE TO THE
APPEAL

2. A brief narration of the facts giving
rise to this appeal would be apposite to
have a clear understanding of the issues
involved in this appeal. These facts are as
below:

2(i) The first respondent, namely, the
writ petitioner, being a company engaged in
the business of developing and marketing
of housing projects including plots etc.,
was allotted a parcel of land, measuring
198135.62 square meter, by the second
respondent (the Greater Noida Industrial
Development Authority - GNIDA), vide
allotment letter dated 30.08.2010. Pursuant
thereto, an instrument of lease, dated
15.11.2010, was executed and registered on
16.11.2010 where under plot of land,
bearing No.GH-05 in Sector 16-B, Greater
Noida, measuring 198135.62 square meter,
was leased out to the first respondent for a
period of 90 years by GNIDA at a premium
of Rs.228,94,57,090 (Two Hundred Twenty
Eight Crore Ninety Four Lac Fifty Seven
Thousand Ninety only), with yearly rent @
1% of the premium, for first 10 years,
enhanceable by 50% after every 10 years.
On the instrument of lease, stamp duty
amounting to Rs.12,70,64,900/- (Twelve
Crores Seventy Lakh Sixty Four Thousand
Nine Hundred Only) was paid by the first
respondent. Later, on 26.07.2011, GNIDA
issued letter, followed by another letter
dated
29.07.2011,
requiring
the
first
898 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent to surrender possession of an
area of 71833.62 square meter of the leased
land on the ground that the acquisition of
that portion of land, made in favour of
GNIDA, was quashed by the High Court
vide order dated 12.05.2011 which was
upheld by the Apex Court vide order dated
06.07.2011. As a result, the first respondent
had to surrender possession of 71833.62
square meter of land and, in witness
whereof, a deed of correction, dated
07.02.2013, was executed whereunder the
demised area (viz. 198135.62 square meter)
was reduced by 71833.62 square meter to
126302 square meter.

2(ii) On reduction of the demised area,
the first respondent, who had borne the
stamp duty, made a representation to the
Principal Secretary, Stamp and Revenue,
State of U.P., Lucknow (for short the
Principal Secretary) for refund of that
amount of the stamp duty which related to
the area that the first respondent had to
surrender. This representation was made by
invoking the provisions of Section 49(d)
(1) (2) and (5) of the Indian Stamp Act,
1899 (for short the Stamp Act).

2(iii) When a decision on the said
representation was not taken, Writ-C
No.3183 of 2018 was filed by the first
respondent seeking a direction upon the
State
authorities
to
decide
the
representation. This petition was disposed
off, vide order dated 24.01.2018, requiring
the Principal Secretary to examine the
matter and take a decision in accordance
with law within a specified period. But,
before the first respondent could serve the
order of this Court dated 24.01.2018
(supra), vide letter dated 08.02.2018 the
first respondent was intimated that by order
dated 14.08.2017 its claim for refund has
already been rejected.

2(iv) Aggrieved with the order dated
14.08.2017, as communicated by letter
dated 08.02.2018, the first respondent,
placing reliance on a judgment of the Apex
Court in the case of The Committee GFIL
Vs. Libra Buildtech Private Limited and
others, (2015) 16 SCC 31, filed Writ-C
No.16639 of 2018. On this petition, the
writ court took the view that a fresh
consideration was required in the light of
the decision of the Apex Court in Libra
Buildtech case (supra). Accordingly, vide
order dated 28.05.2018, Writ-C No.16639
of 2018 was allowed and a direction was
issued to the Joint Secretary, Government
of U.P., Lucknow to decide the matter
afresh.

2(v) Pursuant to the order of the writ
court, dated 28.05.2018 (supra), a fresh
representation was submitted by the first
respondent before the Joint Secretary,
Stamp
&
Registration,
Anubhag-2,
Government of U.P., Lucknow (for short
Joint Secretary) on 09.08.2018. Upon
receipt of which, the Joint Secretary
(supra), by order dated 28.02.2019, after
noticing that the area of land leased out to
the first respondent got reduced on account
of decision of the High Court, took the
view that the first respondent is entitled to
refund of the excess stamp duty paid by it.
Accordingly, he directed refund of the
stamp duty to the extent it was paid for
lease of the land which the first respondent
had to surrender consequent to loss of title
of its lessor (GNIDA). This refund was,
however, subject to deduction of 10% of
the amount refundable. But before this
order of the Joint Secretary could be
implemented, on 28.05.2019 the Principal
Secretary passed another order thereby
holding that the principle of law laid down
by the Apex Court in Libra Buildtech case
(supra) would not be applicable to sustain
a claim against the State and since the
claim for refund was not within the
purview of allowances admissible in
2 All. State of U.P. Vs. M/S S.J.P. Infra. Ltd. & Anr.
899
respect of spoiled stamps, the State cannot
be fastened with liability to refund the
stamp duty though it was open for the first
respondent to make a claim against
GNIDA.

2(vi) Acting on the order dated
28.05.2019, the first respondent made a
representation to GNIDA for refund. But
before any decision could be taken thereon,
the first respondent filed Writ-C No.17744
of 2020 before a Single Judge Bench of this
Court. The learned Single Judge, vide
impugned judgment and order dated
01.12.2020, allowed the writ petition,
quashed the order dated 28.05.2019,
imposed cost of Rs.25,000/- on the State,
and directed the State to comply with its
earlier order dated 28.02.2019. Aggrieved
therewith, this intra-court appeal has been
filed by the State.

3. We have heard Sri Sanjay
Goswami,
Additional
Chief
Standing
Counsel, for the appellant; and Sri Shashi
Nandan, learned Senior Counsel, assisted
by Sri Ravi Anand Agrawal, for the first
respondent.

4. Before we proceed to notice the
submissions made before us by the learned
counsel for the parties, it would be useful to
notice the reasoning of the learned Single
Judge in the impugned judgment. From a
perusal of the impugned judgment it
appears that before the learned Single
Judge, on behalf of the State (appellant
herein), it was argued: that allowance for
spoiled stamps is admissible only if a case
falls within the purview of the provisions of
Chapter V of the Stamp Act; that the
provisions of Chapter V, in particular
Section 49 (d) (1) and (2) of the Stamp Act,
on which the writ petitioner (the first
respondent herein) based his claim, were
not applicable on the facts of the case as the
original lease deed was neither absolutely
void from the beginning nor was unfit for
the purpose originally intended, as it
remained operable, albeit, for a reduced
area of 126302 square meter; and that, even
otherwise, the allowances are subject to the
Stamp Rules where under it is required that
the spoiled stamps be presented for
endorsement, whereas, here, the impressed
stamp of the instrument of lease was
neither submitted nor could be submitted
for
endorsement,
because
the
lease
continued to operate, though for reduced
area. The learned Single Judge took the
view that once the acquisition proceeding
to the extent of 71833.62 square meter of
land leased out to the first respondent stood
quashed under a judicial order, the
instrument of lease to that extent was
rendered void and, therefore, a case for
refund of stamp duty to that extent was
made out. The learned Single Judge also
took the view that as the State Government,
through its Joint Secretary, had already
taken a decision to refund, vide order dated
28.02.2019, in compliance of the direction
issued by this Court dated 28.05.2018,
there was no scope for a review at the level
of the Principal Secretary of the State.
Otherwise also, it was the State that had
collected the stamp duty hence no liberty
could have been given to the writ petitioner
to
make
a
claim
against
GNIDA.
Consequently, the learned Single Judge
allowed the writ petition, quashed the order
dated 28.05.2019 and issued a direction
upon the State Government to implement
its earlier order dated 28.02.2019 within a
specified period.

SUBMISSIONS ON BEHALF OF
THE APPELLANT (STATE OF UP)

5. Sri Sanjay Goswami, appearing on
behalf of the State (appellant), submitted
900 INDIAN LAW REPORTS ALLAHABAD SERIES
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 1-B either
on the premium set forth in the lease or on
the market value of the subject of the lease.
The
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
2 All. State of U.P. Vs. M/S S.J.P. Infra. Ltd. & Anr.
901
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
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.

SUBMISSIONS ON BEHALF OF
THE FIRST RESPONDENT (WRIT
PETITIONER)

7. Per contra, Sri Shashi Nandan,
learned senior counsel appearing for the
first respondent, submitted that the case of
the first respondent for refund of the excess
stamp duty charged is squarely covered by
the provisions of Section 49 (d) (1) (2) &
(5) of the Stamp Act, inasmuch as, (a) the
stamped lease instrument to the extent of
the excess area was void thereby entitling
allowance under sub-clause (1) of clause
902 INDIAN LAW REPORTS ALLAHABAD SERIES
(d) of section 49 of the Stamp Act; (b) the
lease instrument was rendered unfit for the
purpose
originally
intended
as
the
acquisition of a portion of the demised land
failed thereby entitling allowance under
sub-clause (2) of clause (d) of section 49 of
the Stamp Act; and (c) the lessor refused to
act under the original lease instrument to
the extent of the area demised therein,
therefore sub-clause (5) of clause (d) of
section 49 of the Stamp Act also applies. To
explain the aforesaid contentions, he
submitted that originally the intention of
the instrument was to grant lease of land
measuring 198135.62 square meter whereas
the instrument remained operable for
126302 square meter only thus it failed to
serve the purpose originally intended.
Moreover, the premium charged for the
originally demised area was rateably
reduced
by
a
separate
letter,
dated
17.04.2012, issued by GNIDA amending
the payment plan to make it in consonance
with the reduced area. He submitted that
the total premium payable for the lease,
originally, was Rs.228,94,57,090 but, later,
on the reduced area of 126302 square
meter, as per letter dated 17.04.2012, the
premium payable was Rs. 145,94,19,610.
Thus, the stamp duty charged on the
original premium, as mentioned in the
original lease instrument, was refundable to
the extent the premium got reduced. Sri
Shashi Nandan submitted that, no doubt,
stamp duty, though, is chargeable on an
instrument but the provisions of Section 49
(d) are to provide allowances for spoiled
stamps
so
that
there
is
no
unjust
enrichment, or retention of stamp duty
paid, if, after the charging event, on
account of certain events, the instrument is
found void or unfit or could not be acted
upon. The purpose of these allowances is to
ensure that there is no unjust enrichment of
the State at the cost of the hapless taxpayer
and, therefore, keeping in mind the spirit of
Article 265 of the Constitution of India, a
wider interpretation is to be accorded to
these beneficial provisions as held in the
case of Libra Buildtech (Supra). The
Joint Secretary therefore rightly directed
refund of the amount whereas the Principal
Secretary without jurisdiction passed a
contrary
order.
Thus,
under
any
circumstances, the order impugned in the
writ petition was without jurisdiction and
was rightly set aside by the learned Single
Judge. He therefore prayed that the appeal
be dismissed.

ISSUES THAT ARISE FOR OUR
CONSIDERATION

8. Upon examination of the facts
and the submissions made by the
learned
counsel
for
the
parties,
following
issues
arise
for
our
consideration:

(i) Whether the writ petitioner (first
respondent herein) paid stamp duty in
excess than what was payable on the
lease instrument dated 15.11.2010 as
corrected
by
instrument
dated
07.02.2013? If so, its effect?

(ii)
Whether,
on
account
of
subsequent decision of the High Court
annulling
acquisition
of
land
constituting part of the leased area, the
writ petitioner was entitled to the
allowances for spoiled stamps or refund
of part of the stamp duty in view of the
provisions of Section 49 (d) (1) or
Section 49 (d) (2) or Section 49 (d) (5)
of the Stamp Act?

(iii) Whether the writ petitioner is
entitled to refund of any part of the
stamp duty on equitable principles such
as principle of restitution or doctrine of
unjust enrichment?
2 All. State of U.P. Vs. M/S S.J.P. Infra. Ltd. & Anr.
903

(iv) Whether the order of the Principal
Secretary dated 28.05.2019 is void? If so,
its effect?

(v) Whether the order of Joint
Secretary was contrary to law and,
therefore, no direction ought to have been
issued by the learned Single Judge for its
enforcement?

(vi) Whether the writ petitioner, if not
entitled
to
relief
against
the
State
Government, on the facts of the case, could
seek refund of the excess stamp duty paid
from GNIDA in writ jurisdiction?

ANALYSIS

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 & 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.

11. As to how provisions of a taxing
statute are to be construed, there is a
plethora of authorities. To avoid burdening
this judgment by referring to several of
them, it would be apposite to refer to a
recent Constitution Bench decision of the
Apex Court. In Commissioner of Customs
(Import), Mumbai versus Dilip Kumar
904 INDIAN LAW REPORTS ALLAHABAD SERIES
& Co., (2018) 9 SCC 1, a Constitution
Bench of the Apex Court in paragraph 29
of its judgment observed as under:

"... it is well settled that in a taxing
statute,
there
is
no
room
for
any
intendment; that regard must be had to the
clear meaning of the words and that the
matter should be governed wholly by the
language of the notification. Equity has no
place in interpretation of a taxing statute.
Strictly one has to look to the language
used; there is no room for searching
intendment nor drawing any presumption.
Furthermore, nothing has to be read into
nor should anything be implied other than
essential inferences while considering a
taxation statute."

In paragraph 53 of the judgment, after
taking
a
conspectus
of
the
various
authorities, the Apex Court held as under:

"...........we would be more than justified
to conclude and also compelled to hold that
every taxing statute including charging,
computation and exemption clause (at the
threshold stage) should be interpreted strictly.
Further, in case of ambiguity in charging
provisions, the benefit must necessarily go in
favour of subject/ asessee, but the same is not
true for an exemption notification wherein the
benefit
of
ambiguity
must
be
strictly
interpreted in favour of the Revenue/State."

In paragraphs 58, 59 and 60 of the
judgment, the Apex Court by taking note of
earlier decisions clarified the position by
observing that if a subject falls within the
exemption clause, after employing the strict rule
of interpretation, Court may thereafter construe it
liberally. The relevant observations are contained
in paragraphs 59 and 60 of the judgment
extracted below:

"59.....The question whether a subject
falls in the notification or in the exemption
clause, has to be strictly construed. When
once the ambiguity or doubt is resolved by
interpreting
the
applicability
of
the
exemption clause strictly, the Court may
construe the notification by giving full play
bestowing wider and liberal construction.
The ratio of Parle Exports case {CCE v.
Parle Exports (P) Ltd.(1989) 1 SCC 345}
deduced as follows:

(Wood Papers case {Union of India V.
Wood Papers Ltd., (1990) 4 SCC 256, p.
262, para 6}

"6. ......Do not extend or widen the
ambit at stage of applicability. But once
that hurdle is crossed, construe it liberally"

60. We do not find any strong and
compelling reasons to differ, taking a
contra view, from this. We respectfully
record our concurrence to this view which
has been subsequently, elaborated by the
Constitution Bench in Hari Chand case
{CCE V. Hari Chand Sri Gopal, (2011) 1
SCC 236}."

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
2 All. State of U.P. Vs. M/S S.J.P. Infra. Ltd.