Stamp Duty Amendments on Amalgamation Can’t Apply Retrospectively: Kerala HC

Zuri Hotels And Resorts Private Limited Vs Principal Sub -Registrar (Kerala High Court)

Material Facts

The petitioner, a company registered under the Companies Act, challenged Exts.P1 and P2 issued by the Sub-Registrar demanding stamp duty of Rs.2,01,90,659 under the Kerala Stamp Act, 1959 in relation to an amalgamation and subsequent de-merger.

M/s. Laguna Kumarakam Resorts Private Limited had purchased certain properties. During 2009, it was amalgamated with M/s. Zuri Hospitality Private Limited pursuant to the Bombay High Court (Goa Bench) order dated 31.03.2010 (Ext.P5). Thereafter, M/s. Zuri Hospitality Private Limited underwent a de-merger relating to its Kerala operations pursuant to the Bombay High Court (Goa Bench) order dated 16.08.2012 (Ext.P7).

Following the amalgamation and de-merger, mutation of the properties was sought. The mutation application was initially rejected on the ground that the merger and de-merger orders required registration under the Registration Act, 1908. That rejection was challenged before the Kerala High Court, which held that registration of the documents was not required. In the writ appeal, the Division Bench made minor modifications and held that the procedural requirement under Section 89(5) of the Registration Act had to be complied with. Pursuant to orders of the Bombay High Court directing that copies of the merger and de-merger orders be sent to the registering authorities in Kerala, the Sub-Registrar issued Ext.P1 demanding stamp duty, followed by Ext.P2 and recovery proceedings under the Kerala Revenue Recovery Act, 1968.

Procedural History

The petitioner challenged Exts.P1 and P2 and the consequential revenue recovery proceedings before the Kerala High Court.

Legal Issue(s)

Whether stamp duty could be demanded under the Kerala Stamp Act, 1959 in respect of the amalgamation and de-merger approved in 2010 and 2012 by relying upon amendments introduced in 2016 and 2020.

Relevant Statutory Provisions

• Section 2(d), Kerala Stamp Act, 1959
• Section 89(5), Registration Act, 1908
• Kerala Revenue Recovery Act, 1968

Parties’ Submissions

Petitioner’s Submissions

The petitioner contended that:

• The requirement to levy stamp duty on “amalgamation” or “reconstruction” was introduced only with prospective effect from 01.04.2020 under Section 2(d) of the Kerala Stamp Act, 1959.
• The relevant chargeable events were the amalgamation approved under Ext.P5 and the de-merger approved under Ext.P7.
• The issue had to be examined with reference to the dates of Ext.P5 and Ext.P7.
• Reliance was placed on the Supreme Court decision in Vijay v. Union of India and Others, which held that the crucial date is the date of execution of the instrument.

Respondents’ Submissions

The Government Pleader submitted that the definition of “conveyance” under Section 2(d) of the Kerala Stamp Act had been amended to include deeds of amalgamation.

Court’s Findings and Reasoning

The Court observed that:

• The amendment to Section 2(d) referred to by the respondents came into force only with effect from 13.11.2016.
• The subsequent amendment introducing the requirement relating to amalgamation or reconstruction became effective only from 01.04.2020.
• Neither the 2016 amendment nor the 2020 amendment was given retrospective operation.
• The amalgamation and reconstruction in the present case had taken place in 2009 and 2012 and were approved by the Bombay High Court through Ext.P5 and Ext.P7.
• When mutation was originally sought, no stamp duty was demanded because the Act did not then cover such transactions.
• The later transmission of the Bombay High Court orders to the authorities in Kerala pursuant to judicial directions could not itself become the basis for demanding stamp duty, as the statute did not contemplate court orders attracting stamp duty.
• Following the Supreme Court decision in Vijay v. Union of India and Others, the relevant date was the date of execution of the instrument, requiring the issue to be considered with reference to Ext.P5 and Ext.P7.
• The respondents had issued the impugned demand without considering the relevant dates and the absence of retrospective operation of the amendments.

Final Ruling

The Kerala High Court allowed the writ petition.

The Court set aside Exts.P1 and P2 demanding stamp duty and also set aside the coercive recovery proceedings initiated under the Kerala Revenue Recovery Act, 1968.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

The petitioner is a company registered under the provisions of the Companies Act. The challenge in this writ petition is against Exts.P1 and P2 issued by the 1St respondent ­Sub – registrar directing the petitioner to satisfy the stamp duty under the provisions of the Kerala Stamp Act, 1959 (for short ‘the Act, 1959’), with respect to an amalgamation/ de-merger.

2. The short facts necessary for the disposal of this writ petition are noticed as under:-

M/s. Laguna Kumarakam Resorts Private Limited purchased an extent of 06 Hectors and 89.22 Ares of properties as evidenced by Ext.P4. Later, during 2009, the afore company was amalgamated with M/s. Zuri Hospitality Private Limited pursuant to Ext.P5 order dated 31.03.2010 of the Bombay High Court (Goa Bench). On the basis of the afore, M/s. Zuri Hospitality Private Limited sought for mutation of the properties. Subsequently, the company M/s. Zuri Hospitality Private Limited sought for reorganisation in the form of de-merger with respect to the activities in the State of Kerala. Appropriate application filed before the Bombay High Court culminated in Ext.P7 order of de-merger dated 16.08.2012. On the basis of the de-merger pursuant to Ext.P7, a fresh mutation was sought for as evidenced by Ext.P8. The petitioner also submitted copies of Ext.P5 merger order as well as Ext.P7 de-merger order before the 3^rd respondent herein. However, the prayer for mutation was not favourably considered, as evidenced by Ext.P11 order dismissing the mutation application with reference to the provisions of the Registration Act,1908 (for short, ‘the Act’) contending that the petitioner was expected to carry out registration with respect to Exts.P5 and P7. Ext.P11 order was the subject matter of challenge before this Court in W.P.(C) No.10939 of 2017. By Ext.P12 judgment dated 05.03.2018, a learned Single Judge of this Court decided the issue in favour of the petitioner, holding that there is no requirement for making any registration of the documents in question. The judgment at Ext.P12 was challenged by the revenue (respondents 3 and 4) before the Division of this Court by instituting W.A. No.1622 of 2019. The writ appeal was also disposed of, by making minor modifications with respect to the judgment of the learned Single Judge also finding that the procedural requirement under Section 89(5) of the Registration Act requires to be met by the petitioner. On that basis, the petitioner sought for sending the copies of the order of merger as well as de-merger to the revenue authorities in Kerala including the registering authorities. By the orders at Exts.P14 and P15, the Bombay High Court (Goa Bench) directed the afore orders to be sent to the registering authorities in Kerala. It is on the basis of the afore that Ext.P1 has been issued by the Registrar, finding that the petitioner is to satisfy stamp duty under the provisions of the Act, 1959 to the extent of Rs.2,01,90,659/-. It is seeking to challenge Ext.P1 and P2 issued as above as well as the coercive proceedings initiated under the Kerala Revenue Recovery Act, 1968, that the petitioners have instituted in the captioned writ petition.

3. I have heard Sri. S. Sreekumar, the learned senior counsel instructed by Sri. Basil Mathew, the learned counsel for the petitioner as well as Sri. Balaprasannan, the learned Government Pleader for the respondents herein.

4. The short issue arising for consideration in this writ petition is with reference to the sustainability or otherwise of Exts.P1 and P2

5. The learned senior counsel for the petitioner Sri. Sreekumar sought to rely on the provisions of Section 2(d) of the Act, 1959 to state that the requirement for satisfying the stamp duty with respect to “amalgamation” or “reconstruction” has been introduced only with prospective operation from 01.04.2020. According to him, the chargeable activity with respect to the present case is the amalgamation approved by this Court at Ext.P5 and the reconstruction approved at Ext.P7. Therefore, the question has to be addressed with respect to the dates of Exts.P5 and P7 under any circumstances. He also sought to rely on the judgment of the Apex Court in Vijay v. Union of India and Others 1(2023) 17 SCC 455] which has categorically found that the crucial date is the date of execution in the instrument in question – in the case at hand the judgments/ orders at Exts.P5 and P7.

6. The learned Government Pleader, on the other hand, would point out that the term “conveyance” has been amended with reference to the provisions of Section 2(d) of the Act, 1959 by including the deed of amalgamation also.

7. However, in my opinion, even the amendment pursuant to Section 2(d) pointed out by the learned Government Pleader has come into operation only with effect from 13.11.2016. Admittedly, there is no retrospective operation given to either the amendments of the year 2016 or to the amendment of the year 2020.

8. Here it is also to be noted that the amalgamation/ reconstruction has taken place in 2009 and 2012, respectively. The afore were approved by the orders of the Bombay High Court pursuant to Exts.P5 and P7. When the petitioner sought for mutation originally the respondents did not deem it fit to demand stamp duty under the Act, since the Act did not cover those transaction. It is only because the Bombay High Court directed the earlier orders [Exts.P5 and P7] to be send to the authorities in Kerala after the amendments of the years 2016 and 2020 that the impugned demand has been made. Straight away it is to be noticed that the orders of the High Court cannot be made the basis for demand of stamp duty, since the statute cannot and does not visualise the orders of the Court as attracting stamp duty.

9. In the light of the afore, since the chargeable activity is with respect to the amalgamation/reconstruction, approved pursuant to the orders at Exts.P5 and P7, I am of the opinion that the amendments of 2016 or of 2020 would not have any application since they do not have any retrospective operation. As has been found by the Apex Court in Vijay (supra), the crucial date is the date of execution of the instrument in question. In the case at hand, the issue requires to be addressed, in any event, with reference to the dates of Exts.P5 and P7.

In the said circumstances, I am of the opinion that the insistence on the part of the 1St respondent through Exts.P1 and P2 has been made without taking note of the crucial dates as well as the fact that amendments were not having any retrospective operation.

Hence, I am of the opinion that the petitioner is entitled to succeed. Resultantly, this writ petition would stand allowed setting aside Exts.P1 and P2. Needless to state that the coercive proceedings initiated on the basis of the afore under the Revenue Recovery Act, 1968 would also stand set aside.