IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY NINTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT APPEAL NO : 750 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 17/04/2008 in WP NO : 22059 OF 2004 on the file of the High Court.) Between: 1 The Collector, U/Sec 41-A of Indian Stamps Act, 1989 and District Registrar, Office of the District Registrar, Registration & Stamps, Vijayawada. 2 Sub-Registrar, Office of Sub-Registrar, Gunadala, Vijayawada. ..... APPELLANT(S) AND M/s. Hindustan Coca-Cola Beverages Pvt. Ltd., Atmapur Village, Mangalagiri Mandal, Guntur District.(a company incroporated under the companies Act, 1956) having its regd. office at No. 13, abdul Fazal Road, Bengal Market, New Delhi, rep by its Authorised Signatory Sri S. Sridhar .....RESPONDENT Counsel for the Appellant: GP FOR REVENUE Counsel for the Respondent: MR.VENKATRAM REDDY MANTUR THE HON'BLE MR. JUSTICE D.S.R.VARMA AND THE HON'BLE MR. JUSTICE G.CHANDRAIAH WRIT APPEAL No.750 of 2008 ORAL JUDGMENT: (per THE HON’BLE SRI JUSTICE D.S.R.VARMA) Heard both sides. 2. This Writ Appeal is directed against the order, dated 12.06.2008, passed by a learned single Judge of this Court, dismissing the writ petition W.P.No.22059 of 2004. 3. Appellants --- the Collector, under Section 41-A of the Indian Stamps Act, 1989, and District Registrar, Stamps and Registration and Sub-Registrar, Gunadala, Vijayawada, are the respondents and the respondent --- M/s. Hindustan Coca-Cola Beverages Private Limited is the petitioner in the Writ Petition. 4. For the sake of convenience, in this judgment, the parties will be referred to as per their array in the Writ Petition. 5. The short question that arises for consideration in this Writ Appeal is whether the respondents are justified in levying stamp duty on the properties agreed to be sold or on the properties that were actually conveyed by a deed of conveyance? 6. Inasmuch as the facts that led to the filing of the writ petition were narrated in the impugned order and as the other facts are not in dispute, they are not necessary to be reiterated. 7. In order to substantiate its case, the petitioner relied on Section 47-A (1) of the Indian Stamp Act, 1899 (for brevity ‘the Act’). 8. For the sake of convenience and ready reference, it is apt to extract Section 47-A (1) of the Act, which reads thus: 47-A. Instruments of conveyance, etc., undervalued how to be dealt with:-1) Where the registering officer appointed under the Registration Act, 1908 (Central Act 16 of 1908), while registering any instrument of conveyance, exchange, gift partition, settlement, release, agreement relating to construction, development or sale of any immovable property or power of attorney given for sale, development of immovable property, has reason to believe that the market value of the property which is the subject-matter of such instrument has not been truly setforth in the instrument, or that the value arrived at by him as per the guidelines prepared or caused to be prepared by the Government from time to time has not been adopted by the parties, he may keep pending such instrument and refer the matter to the Collector for determination of market value of the property and the proper duty payable thereon: Provided that no reference shall be made by the registering officer unless an amount equal to fifty percent of the deficit duty arrived at by him is deposited by the party concerned. 9. From the above provision, it is obvious that ‘registration of any instrument of conveyance’ is the prime consideration for levying the stamp duty along with other modes of transactions, including the agreement relating to construction, development or sale of any immovable property. When an agreement is entered into to convey certain properties, by a deed, required stamp duty has to be levied, which may include both an agreement to sell or actual sale. In other words, stamp duty has to be levied on the agreement of conveyance or actual conveyance. Obviously, there cannot be same stamp duty for these two kinds of deeds. 10. It is also not in dispute that the agreement was entered into by a deed of conveyance, dated 29.05.2000. 11. Clause 4 of the said agreement reads as under: “The Vendor has agreed to sell its bottling undertaking on a slump sale basis and no itemized price for the Land and Buildings has been ascertained by either the Vendor or the Purchaser in the course of negotiations. The consideration for the property under transfer is included and form part of the price as mentioned in the Business Purchase Agreement dated 10.06.1998 and no separate consideration is paid to the vendor.” 12. From the aforesaid clause, it is obvious that a bottling undertaking was intended to be conveyed on slump sale basis and that the consideration for the property under transfer was included and it forms part of the price, as mentioned in the Business Purchase Agreement, dated 10.06.1998, and no separate consideration would be paid to the vendor. Therefore, the stamp duty was paid even to the property that was originally agreed to be conveyed. 13. Now, when the actual conveyance deed was sought to be registered, the petitioner had paid the stamp duty of Rs.36,00,000/-. As per Clause 4 of the agreement, the respondents were said to have assessed the value of the total property as Rs.14,04,00,000 and, accordingly, levied the stamp duty of Rs.1,82,52,000/- and after deducting the actual amount paid i.e., Rs.36,00,000/-, the deficit stamp duty of Rs.1,46,00,000/- was demanded to be paid by the petitioner. 14. As already pointed out, the petitioner, who is the purchaser, had already incorporated in Clause 4 of the agreement that the consideration for the property under transfer was also included and, accordingly, when the actual deed of conveyance was sought to be registered, the property was valued and, accordingly, paid the stamp duty of Rs.36,00,000/-. 15. But, what is recorded by the learned single Judge is that the amount paid towards stamp duty was only for those properties, which were actually sought to be conveyed, through the document presented on 28.05.2000, inclusive of the bottling undertaking and the properties mentioned in Schedule I and II of the Deed of Conveyance, dated 28.05.2000. 16. It is to be seen that when it has been specifically stated that a sale deed was sought to be registered, it was mentioned specifically that only those properties mentioned in Schedule I and II are to be conveyed but not the other properties. 17. Therefore, the bottling unit, mentioned in Clause 4 of the deed of conveyance, is to be construed as originally to be conveyed so long as the items, which find place anywhere in the agreement, do not find place in the listed items for actual sale cannot be taken into consideration for the purpose of computation of the stamp duty to be levied on the deed of conveyance. 18. In other words, the properties covered by the deed of conveyance are specifically required to be taken into consideration for the purpose of levying stamp duty but not for agreed properties. Unless and until, the properties, which are agreed to be sold are included in the deed of conveyance, the same cannot be taken into account for the purpose of assessment of duty to be levied on the deed of conveyance. 19. Therefore, we are of the considered view that the properties, mentioned in Clause 4 of the agreement, do not find place in items 1 and 2 and hence the same shall not be taken into account for the purpose of assessment of duty to be levied on the deed of conveyance. This, in our considered view, is an apparent error and misreading of sub-section (1) of Section 47-A. It is abundantly clear that there is a clear distinction between the nature of the said two documents viz., the deed of conveyance and an agreement to convey. 20. Section 47-A (1) of the Act makes it clear that if the market value of the property, which is the subject matter of the instrument, has not been truly setout in the instrument, the registering officer may keep such instrument pending and refer the matter to the Collector for determination of market value of the property. 21. In the present case, the deed of conveyance is mentioned in Schedule I and II and, therefore, the respondents cannot go beyond items I and II and impound the property mentioned in Clause 4 of the deed of conveyance and assess the stamp duty. The respondents ought to have confined the stamp duty only to the items mentioned in the deed of conveyance. 22. If the contention of the learned Government Pleader is to be taken into consideration, only the stamp duty on the agreement of sale is to be levied, and there is no need for the respondents to levy duty on the other deed i.e., the actual deed of conveyance. This distinction had been elaborately discussed by the learned single Judge of this Court, in the impugned order. 23. Therefore, we do not find any apparent error either of law or of facts, in the impugned order, passed by the learned single Judge. 24. For the foregoing, the Writ Appeal fails and is liable to be dismissed. 25. In the result, the Writ Appeal is dismissed. However, there shall be no order as to costs. ________________________ JUSTICE D.S.R.VARMA ________________________ JUSTICE G.CHANDRAIAH 29TH JANUARY 2009 USD