Macrotech Developers Ltd. Vs State of Maharashtra (Bombay High Court)
a. It is declared that the Petitioners are entitled to the benefits of Order bearing No. Mudrank-2020/ C.R.No.136/ M-1(Policy) dated 29.08.2020 issued by the State of Maharashtra under the Maharashtra Stamp Act and subsequent orders granting concession in payment of stamp duty on the instrument of conveyance or agreement to sell of any immovable property in addition to the benefits already granted as per the Notification dated 08.03.2019 issued by the Government of Maharashtra, Urban Development Department, Mantralaya, Mumbai – 400032 for Integrated Township Project.
b. If any excess stamp duty is levied by the Respondent and recovered from the Petitioner or their purchasers without giving benefit of Order bearing No.Mudrank-2020/ C.R.No.136/ M-1(Policy) dated 29.08.2020 issued by the State of Maharashtra and benefit of Integrated Township project, the Petitioner shall provide to the Respondents a statement of their claim of excess stamp duty within four weeks from the date of receipt of the certified copy of this order and if such claim is made, the Respondents to refund the said excess stamp duty within four weeks from the date of receipt of application, failing which they will have to pay interest @ 12% p.a.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
1. Rule. Rule made returnable forthwith. Heard by consent.
2. The Petitioners have filed this Petition under Article 226 of the Constitution of India seeking directions against the Respondents to grant the Petitioners the benefit of the Government Order dated 29th August, 2020 in payment of stamp duty in addition to the concession in stamp duty provided for in the Regulations for development of Integrated Township Project (for short “the said ITP Regulation”) which Regulations, appended to the Government Notification dated 8th March, 2019, have been framed by the Government exercising powers under Section 37 (1AA) (c) of the Maharashtra Regional & Town Planning Act, 1966 (for short “MR & TP”).
3. The Petitioners are engaged in the business of real estate and carry out development of various projects at Mumbai, Thane, Kalyan and Bhiwandi including the lands that have been notified as the Integrated Township Projects (ITPs) situated at Kalyan and Bhiwandi. The Respondent No.1 is the State of Maharashtra through the Secretary, Department of Revenue and Forest. The Respondent Nos.2 and 3 are the joint Sub-Registrars of Kalyan and Bhiwandi, Registration Offices within District Thane and performing the duties and responsibilities under the Maharashtra Stamp Act, 1958 as also under the Registration Act, 1908. Respondent Nos.2 and 3 are instrumentalities of the State for the purposes of Article 12 of the Constitution of India and amenable to the writ jurisdiction of this Court.
4. The Respondent No.1 State had issued an order bearing No. Mudrank 2006/UOR.53/CR 536/M-1 dated 15th January, 2008. By this order the stamp duty for agreements and conveyances were reduced by 50% in Special Township Projects (for short “STP”).
5. The Government of Maharashtra, Urban Development Department issued a Notification bearing No. TPS-1816/CR-368/16/Part-1/DP-ITP/UD-13 dated 8th March, 2019. By this Notification, Regulations for development of the said ITPs were notified. By these Regulations, the Government had given certain concessions / incentives for development of the said ITPs. One such concession was with respect to the 50% of the stamp duty as otherwise required to be paid under the Mumbai Stamp Act. The said ITP Regulations were brought into force by repealing all the prior Regulations. The STP’s had earlier been replaced by the said ITP by an amendment made in the MR & TP Act, 1966 vide Maharashtra Act, 43 of 2014, with effect from 22nd April, 2015. The said ITP Regulations have been approved by the cabinet and have received the assent of the Governor of the State of Maharashtra.
6. The Petitioners have stated that they had registered their project “Kunal Espiree – Phase III under the Real Estate (Regulation and Development) Act, 2016 on 1st August, 2017. They have stated that their project falls under the said ITP Regulations. Accordingly, the Petitioners are claiming concession of 50% of stamp duty under Regulation 13.3 of the said ITP Regulations.
7. It has been stated in the Petition that in and around March, 2020 on account of outbreak of the Covid 19 pandemic, the Government of India took effective measures to prevent the spread of Covid-19 pandemic. The measures taken included nationwide lock down which extended till 30th June, 2020. The Government of India and the Reserve Bank of India formulated financial relief measures, so as to reduce the financial burden that resulted from the nationwide lock down with a view to encourage people to buy houses and alleviate the hardships faced by the real estate industry, the Revenue and Forest Department issued an Order dated 29th August, 2020 granting concession in payment of stamp duty. By the said Order, the stamp duty was reduced by 2% for the State of Maharashtra (excluding Mumbai) for the period from 1st September, 2020 to 31st December, 2020 and by 1.5% for the State of Maharashtra (excluding Mumbai) for the period from 1st January, 2021 to 31st March, 2021. Likewise by the said Order the stamp duty was reduced by 3% for the Mumbai District and Mumbai Suburban District for the period from 1st September, 2020 to 31st December, 2020 and by 2% for the Mumbai District and Mumbai Suburban District for the period from 1st January, 2021 to 31st March, 2021.
8. Further, by a Notification dated 28th August, 2020 (“Surcharge Exemption Notification”), the surcharge leviable in respect of the instruments was reduced to NIL for the period starting from 1st September, 2020 and ending 31st December, 2020 and surcharge of 0.5% for the period starting from 1st January, 2021 and ending on 31st March, 2021. A tabular statement has been given in paragraph 3.5 of the Petition of the position upto 31st August, 2020, position post 2020 Notification and Surcharge Exemption Notification i.e. 1st September, 2020 to 31st December, 2020 and the position post Notification and Surcharge Exemption Notification i.e. 1st January, 2021 to 31st March, 2021. A tabular statement in paragraph 3.5 of the Petition reads thus:-
(a) Position upto 31st August, 2020
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