9911796707
TMI Blog1998 (9) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion involved in these petitions. Preface to the question is that the petitioner-companies hold most of the immovable properties in the State of Gujarat. In relation thereto, they have executed debenture trust deeds ('the instruments') in favour of the Industrial Credit and Investment Corpora- tion. The companies obtained exemption under the Indian Stamp Act, 1899 in view of article 27. They have further registered those instruments with Sub-Registrar in the State of Gujarat as required by the Indian Registration Act, 1908. Stamp duty was paid on them under the Act of 1958, as applicable to the State of Gujarat, at the rates prevailing therein. These rates are comparatively lower than those prevailing in the State of Maharashtra. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond legislative competence. Attention is invited to a decision in the case of Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao AIR 1971 SC 1070, wherein it is held that there is no scope for inclusion of the copy of the document as an instrument for the purpose of the Stamp Act. 4. To ascertain the legality of submission, it would be beneficial to scrutinise the scheme of the Act of 1958. Section 3 deals with instrument chargeable with duty, and reads thus: "Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in Schedule I as the proper duty therefor respectively, that is to say-... ( b ) every instrument mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this section shall be received in evidence unless the duty chargeable under this section has been paid thereon." [Emphasis Supplied] 6. Impugned provisions have incorporated a special scheme to prevent the evasion of stamp duty. What is explicit in section 7 that on arrival of the copy of the instrument in this State, original instrument becomes charge able in the same manner as if received in the State in terms of section 19. This section deals with increased duty on certain document in State of Maharashtra. Section 19 (as it stood prior to Amendment of 1993) reads thus: "Payment to duty on certain instruments liable to increased duty where any instrument of the nature described in any article in Schedule I and relating to any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 1958. Certainly such construc-tion would fertilise the design of executor to evade stamp duty. At this stage, we refer to the Amending Act of 1993 which has added sub-section (3) to section 7 and term copies of the instrument at various places in section 19. The learned Government pleader invited attention to the ratio laid down in Ruby Sales Services (P.) Ltd. v. State of Maharashtra [1991] 5 CLA (Snr) 35 (Bom.), which has been affirmed by the Supreme Court in the case of Ruby Sales Services (P.) Ltd. v. State of Maharashtra [1994] 2 Bom. CR 248. They dealt with definition of term 'conveyance' under Maharashtra Amending Act No. 27 of 1985 and a question whether a consent decree was included in the unamended definition or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge to which this section applies shall, so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced, or a copy thereof verified in the prescribed manner, are filed, with the Registrar for registration in the manner required by this Act... (2) ****** (3) When a charge becomes void under this section, the money secured thereby shall immediately become payable." [Emphasis Supplied] 11. What is explicit that the instrument or copy thereof duly verified if not filed with the Registrar of Companies, the charge wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of a responsible officer of the company stating that it is a true copy or by a certificate of a public officer given under and in accordance with the provisions of section 76 of the Indian Evidence Act, 1872(1 of 1872). " [Emphasis Supplied] The copy of the instrument duly verified as per the statutory dictate, evidencing or creating the charge has the character of an instrument. 13. Mr. Chinoi, the learned counsel appearing for the petitioners, fairly conceded before us that the certified copy of the original instrument is an instrument. In view of this and discussion hereinabove, we do not propose to deal with the submission that the copy of the instrument is not a document as envisaged by section 2(1) of the Act of 1958. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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