TMI Blog1993 (7) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... s ₹ 5/- only. There is no dispute in that regard. Subsequently, the petitioner was served with an order dated 24-9-1986 issued by the Deputy Collector, Valuation and Stamp Duty, Bombay, asking the petitioner to pay the stamp duty applicable to conveyance of immoveable property along with penalty. The contention of the Deputy Collector was that the document dated 16-10-1984 lodged for registration by the petitioner was wrongly described as an agreement of sale whereas in effect it was a document of sale. In that view of the matter, according to the Deputy Collector the proper duty payable on such document was the duty applicable to conveyance of immoveable property . The value of the immoveable property for that purpose was estimated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 10 that the vendors shall give a General Power of Attorney in favour of the purchasers or any other person or persons as may be directed by the purchasers for the purpose of management and development of the said land as and when required by the purchasers. In clause 12 of the agreement, it is further stated that the parties have agreed that the expenses of that agreement and the deed of conveyance and other writings to be executed inclusive of stamp duty, registration charges etc. shall be borne and paid by the purchasers alone. A reading of the above clauses clearly goes to show that by this agreement the vendors have not conveyed the free-hold right to the purchasers. No doubt, they have handed over possession and given them certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property are to be registered compulsorily. Section 54 of the Transfer of Property Act deals with sales of immoveable property. Sale has been defined under that section as transfer of ownership in exchange for a price paid or promised or part-paid and part-promised . Such transfer in case of tangible immoveable property of ₹ 100/- and upwards can be made only by a registered instrument. It is also stated in the said section that a contract for the sale of immo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be termed as deed of sale on the ground that prossession has already been given by the vendor to the purchaser and the consideration has also been received. Sale of immovable property is not completed by more delivery of possession and receipt of consideration. Such agreements, therefore, cannot be treated as a conveyance having the effect of transfer of tile in the immovable property. 4. This view gets full support from a decision of the Nagpur High Court in Amroo v. Baburao, AIR 1951 Nagpur 403 wherein if was held that where a document is described as an agreement and is stamped as such, and there are no words of conveyance therein but it clearly states that a sale deed will be executed in future, such document must be regarded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecution, or after the execution of, such agreement without executing the conveyance in respect thereon, then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly: Provided that, the provisions of Section 32A shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that section: Provided further that, where subsequently a conveyance is executed in pursuance of such agreement of sale, 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. It is an agreed position that this Expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain cases, also to agreements to sell. To avoid the levy of duty again on the very same transaction when subsequently in pursuance of such agreement a conveyance is executed, provision has been made for adjustment of the amount of duty levied on the agreement to sell towards the duty payable on the conveyance. In any event, it is only after the amendment made with effect from 9-12-1985 that even on agreement to sell falling within the Explanation to Item 25, stamp duty is leviable at the same rate as applicable to conveyance. The above Explanation, in no way, even purports to obliterate the distinction between a conveyance and an agreement to sell. 7. In view of what is stated above, I am of the clear opinion that the agreement in q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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