Power Of Attorney Executed Along With Debt Assignment Deed under SARFAESI Act Not Separately Chargeable Under Bombay Stamp Act
Case: Asset Reconstruction Co (India) Ltd versus Chief Controlling Revenue Authority
Coram: Justices Hemant Gupta and V Ramasubramanian
Case No.: Civil Appeal No. 3070 Of 2022
Court Observation: “The High Court overlooked the fact that there was no independent instrument of PoA and that in any case, the power of sale of a secured asset flowed out of the provisions of the Securitisation Act, 2002 and not out of an independent instrument of PoA. Section 2(zd) of the Securitisation Act, 2002 defines a ‘secured creditor’ to mean and include an Asset Reconstruction Company. The appellant has acquired the financial assets of OBC in terms of Section 5(1)(b) of the Securitisation Act, 2002. Therefore, under sub section (2) of Section 5 of the Securitisation Act, 2002, the appellant shall be deemed to be the lender and all the rights of the Bank vested in them”.
“The deed of assignment has already been charged to duty under Article 20(a) which deals with “conveyance”. In fact Article 45(f) also requires a PoA covered by the said provision to be chargeable to stamp duty under Article 20″
“In view of the Notification dated 01.04.2003 issued in exercise of the power to reduce, remit or compound the duty, conferred by Section 9(a) of the Act, the amount of duty chargeable in terms of Article 20(a) was capped at Rs. 1,00,000/. In addition to the said amount of Rs.1,00,000/, the appellant was asked to pay an additional duty of Rs.40,000/ under Section 3A. The appellant has thus paid a total amount of Rs.1,40,000/ with the instrument having been charged as a conveyance under Article 20(a)”
“Once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a). In other words after having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a). Since the impugned order of the High Court did not address these issues and went solely on the interpretation of Article 45(f), the same is unsustainable”.
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Keywords
Power Of Attorney, Bombay Stamp Act, Power Of Attorney Executed
