THE BOMBAY STAMP ACT, 1958 - Igrmaharashtra.gov.in

considering the correspondence that had ensued between the Collector of Bombay andthe Promoter Atur India Pvt. Ltd. For giving on lease one of the plots at Nariman Point. Itmay be pointed out that most of the plots at Nariman Point and Cuffe Parade are allottedby the Government of Maharashtra to various persons by way of correspondence whereinit is provided that ultimately lease will be executed by the Government in favour of cooperativesociety or the Promoter of the land building. Pending execution of such lease,the Government generally gives a licence to the Promoter or proposed lessee to enterupon the land ultimately to be given on lease for the purpose of putting up theconstruction. In this particular case Atur India Pvt. Ltd. Had in the correspondencespecifically pointed out that they wanted the land for the benefit of a co-operative society.The government had laid down certain condition and Condition No.13 stipulated that thelicensee will be put in possession of the plot on his executing the agreement to lease. Thelicensee was debarred from transferring assigning or encumbering or parting with hisinterest or benefit under the agreement to lease. Even the notice inviting offers providedthat the licensee will be put in possession of the plot on his executing the agreement tolease which will be prepared by the Government Solicitor. It appears that in NarimanPoint and Cuffe Parade area the Government has not executed any agreement to lease orlease and only correspondence is exchanged. After considering the facts the SupremeCourt held that on facts it was an agreement to lease and not a lease; a contract for a leaseis to be distinguished from a lease because a lease is actually a conveyance shall beentered into at a future date; that an agreement to lease not creating a present demise isnot a lease and that Atur India Pvt. Ltd. Had sought to assign the benefit of suchagreement to lease (without demise but with licence) in favour of Basant Co-operativeHousing Society. According to the Supreme Court in law the benefit of such a contractcan be assigned and that Division Bench of the Bombay High Court was right in holdingthat the demand of the Superintendent of Stamps for the stamp duty (as it was lease ) onsuch an agreement to lease was not proper.Rent note containing undertaking to pay rent is lease. 1985-MH-L-J-973instrument construed as having clause of reserved rent as absent in liable under article 36(b) 1979-MH-L-J-172=AIR -179-Bom-140 and say that stamp is not payable ontransaction but is on instrument.Stamp Duty on Agreement for Sale of Flat between Promoter and Flat Purchaser1. In Appeal No. 395 of 1991 in Writ Petition No. 3693 of 1990while disposing of the said Appeal and several other writ petitionsthe Division Bench of Bombay High Court has given a Judgementdated 13 th February, 1992. In all the matters the common questionof law according to the Bombay High Court was in respect ofStamp duty payable under Article 25 of Schedule I of the BombayStamp Act. 1958 on agreement for sale of flat by Builder in favourof Flat Purchaser under Section 4 of the Maharashtra OwnershipFlats Act, 1963 and the Maharashtra Apartment Ownership FlatsAct, 1970.2. As observed by the Court, the Court wanted to decide whether thedocument i.e.Exhibit A, is and ‘agreement of sale’ or ‘agreementto sell’ a document conveying the right title and interest in the falt