TMI Blog1999 (1) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... ion made at all for execution of the conveyance. On the other hand, what is submitted is that the provisions of the MOF Act could be applied to the agreement and, therefore, a conveyance could be executed subsequently when it is not clear as to when the conveyance is to be executed and the stipulated time within which the possession has to be handed over. If that is so, it is clear that the document would attract duty as if it is a conveyance as provided in the Explanation. Thus we find no error in the view taken by the High Court. It is not necessary to examine in these appeals as to whether the instrument in question itself conveys a title or not. Therefore, we uphold the decision of the High Court made in this regard. - Appeal (civil) 1655 of 1996 - - - Dated:- 28-1-1999 - S.P. BHARUCHA S. RAJENDRA BABU, JJ. JUDGMENT RAJENDRA BABU, J. The question raised for consideration in these appeals is identical as to the duty payable under the Bombay Stamp Act, 1958 on an agreement for sale of flats covered by the Maharashtra Owner-ship Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 [hereinafter referred to as `the MOF Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also sought for striking down the provisions of the Bombay Stamp Act relating to determination of market value. The matter was placed before the Division Bench which disposed of the said matter. The principal question advanced before us as was done before the High Court is whether the document in question, that is, an agreement to sell, is a document conveying right, title and interest of the flat in favour of the appellants. Section 4 of the MOF Act requires an agreement to be drawn in respect of sale with each of the persons who have taken a flat or flats on ownership basis before accepting any money as advance or deposit and such advance payment of money or deposit cannot exceed 20% of the sale price under the agreement. Section 4(1A) provides that the agreement should be in the prescribed form and to contain several matters mentioned therein. The terms and conditions of the agreement recited that the purchaser agreed to purchase and acquired from the builders a flat admeasuring about 473 sq. ft. carpet area for the price of Rs. 3,75,000 which had been paid in the manner set out therein. If there is default in the matter of payment of any of the instalments, the amount pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mp Act and held that the same was attracted to the case. Under the agreement there is an obligation to hand over the possession even before execution of a conveyance and, therefore, it was a conveyance for the purpose of duty payable under the Bombay Stamp Act and there was no obligation in the agreement to enter into a conveyance at a later stage and clearly it was a case which attracted said Explanation. Handing over of the possession on the very date of execution was not relevant for determining the nature of the document. On that basis the High Court upheld the stand taken by the State in the matter of levy of duty. Other questions raised in the Writ Petition are not the subject matter of these appeals and, therefore, we do not advert to those questions. On the conclusion reached by the High Court the Writ Petition stood dismissed. The learned counsel appearing for the appellants urged before us that the conclusion reached by the High Court either on the question of construction of the agreement amounting to a conveyance or on the applicability of the Explanation I to Article 25 of Schedule I to the Bombay Stamp Act is incorrect. It was submitted that the agreement in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stamp duty, if any, already paid and recovered on the agreement of sale which is deemed to be a conveyance, shall be adjusted towards the total duty leviable on the conveyance. The duty in respect of an agreement covered by the Explanation is leviable as if it is a conveyance. The conditions to be fulfilled are if there is an agreement to sell immoveable property and possession of such property is transferred to the purchaser before the execution or at the time of execution or subsequently without executing any conveyance in respect thereof such, an agreement to sell is deemed to be a conveyance . In the event a conveyance is executed in pursuance of such agreement sub- sequently, the stamp duty already paid and recovered on the agreement of sale which is deemed to be a conveyance shall be adjusted towards the total duty leviable on the conveyance. Now, in the present case, the agreement entered into clearly provides for sale of an immoveable property and there is also a specific time within which possession has to be delivered. There- fore, the document in question clearly falls within the scope of the Explana-tion I. It is open to the Legislature to levy duty on differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But in the Explanation it is not clear that if the document provides that possession has to be taken without execution of the con-veyance certainly it would attract the appropriate duty. If the agreement provides that possession will be handed over on the execution of a con-veyance as contemplated under Section 11 of the MOF Act, then the Explanation shall not be attracted at all. In the present case, it is clear that in the terms of the agreement there is no provision made at all for execution of the conveyance. On the other hand, what is submitted is that the provisions of the MOF Act could be applied to the agreement and, therefore, a conveyance could be executed subsequently when it is not clear as to when the conveyance is to be executed and the stipulated time within which the possession has to be handed over. If that is so, it is clear that the document would attract duty as if it is a conveyance as provided in the Explanation. Thus we find no error in the view taken by the High Court. It is not necessary to examine in these appeals as to whether the instrument in question itself conveys a title or not. Therefore, we uphold the decision of the High Court made in this regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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