14. Section 26. - This section relates to cases in which the amount or value of the instrument chargeable with ad valorem duty is indeterminate .
Where no limit is defined in a security bound , or
the limit is exceeded , the instrument falls under schedule 1-A article 57(b) and a fixed duty is
payable thereon.
15. Section 27. - Enacts that the consideration and all facts
affecting the stamp duty shall be set forth in the instrument. It should be
noted that section 64 makes any intentional evasion of the requirements of this
section in order to avoid paying stamp
– duty punishable with a fine which may extend to Rs. 5000.
16. Section 29 - determines, in the case of certain classes
of instruments , the parties by whom, in the absence of an agreement to the contrary, the stamp-duty is payable, and only
needs special notice in this place , with reference to its effect in connection
with the first proviso to section 3, which exempts from stamp-duty “ any
instrument executed by, or on behalf of
,or in favour of Government in cases where, but for this exemption, the Government
would be liable to pay the duty chargeable in respect of such instrument.”
In determining whether an instrument to which
Government is a party comes under this exemption , regard must be had to
section 29. In the case of a sale or lease of waste land by the
Government , the stamp duty would be payable by the grantee or lessee ,and the
exemption would not apply; neither would it in the case of a mortgage deed
executed in favour of Government sanads of jagirs and conveyances of land without pecuniary consideration are
exempted by Government of India notification no. 6 stamps, dated 12th
September, 1931 , reproduced in chapter 1 of this part. In the case of ferry
tolls and such like, it is usual for the Deputy Commissioner to grant a lease
or patta , and to take counterpart or
kabuliat from the lessee specifying
the conditions of the lease and agreeing to pay certain sums to the Government
treasury periodically. Now ,as the stamp duty on a lease is payable under
section 29 by lessee, and that on the counterpart
by the lessor, the general exemption applies to the kabuliat, but not to the
patta, the duty on which would have to be paid by the lessee.
17. Section 30. - It should be borne in mind that under section 65 any person who, on being
required to give a receipt, refuses or neglects to give the same , or who, with
intent to defraud Government is guilty of any devices to evade the payment of
duty on receipts , renders himself liable to a
fine which may extend to Rs. 100 . See also proviso(b) to section 35 of
the Act. There seems to an impression among certain trade’s people that a “
cash-memo” for whatever amount need not be stamped. That however, is not the
law, A cash memo is a ‘receipt under the Indian Stamp Act, and if the amount
exceeds Rs. 20 will require a one anna stamp.
Receipts for salaries , wages, etc , are not exempt,
so also vouchers for discount paid to stamp vendors on sale of stamps. For
exemptions see reduction and remissions in chapter 1 of this part.
18. Section 31. - The
Collector alone is authorised to decide
as to the duty chargeable under this section , and his decision Is final . But
if in doubt he should refer under section 56 to the Chief Controlling Revenue
Authority . no penalty for insufficient
stamping, beyond the deficient duty and the adjudication fee is leviable when the document is unstamped or
insufficiently stamped and is taken to the Collector under section 31. Care
should be taken to ensure that
advantage is not taken to cover intentional evasion of the law which should be
prosecuted under chapter VII of the Act
, or cases in which a civil suit is about to be founded and which should be
subjected to penalty.( See chapter IV.)
19. Section 32. – The effect of
this section is to make the order of adjudication by the Collector , as
endorsed upon the instrument, final, the duty payable under this section is
paid in cash. The proviso is important , and if and instrument is brought after
the period allowed, it cannot be endorsed nor
can any adjudication fee be charged.
20. Chapter IV.--- The provisions of this chapter are very important and the
procedure detailed in it might for
convenience of be briefly summarised here. By section 33 all public officers,
with certain exceptions , are required to examine every instrument chargeable
with duty which comes before them in the performance of their official
functions, and to impound any instrument
which appears not to be duly stamped. Under section 35 the instruments
may be admitted in evidence in a court, if the party desiring to use it , shall
pay the necessary stamp duty together with a penalty of Rs. 5, or when ten
times the deficiency exceeds Rs. 5 then a penalty of ten times such amount. If the court is doubtful about the amount
of stamp duty leviable . it may proceed under section 60. When such a document
is admitted in evidence—an the decision of the court in this matter in
final(section 36) – the court should certify (Section 42) by endorsement on the
instrument that the duty and penalty have been paid, and the name and residence
of the person paying them. An authenticated copy of the impounded instrument
admitted in evidence similarly endorsed together with the money should be sent
in original to the Collector after an authorised copy has been prepared(Section
38(2) ), and retained by the court, for the officer impounding is not
responsible for any damage in transit, The instrument should be returned to the
court by the Collector after he has done what is required of him by the
Act(Section 40(3) ). Section 42)(2) entitles the person concerned to reclaim
the impounded instrument , but the
court shall not, in any circumstances, deliver it before the expiration
of one month from the date of impounding it, and if the collector has certified
(section 43) that its further detention is necessary , it shall not deliver it
so long as such certificate is not cancelled.
Officers who are not authorised to receive evidence
should send the impounded instruments to the collector in original ( Section
38(2)) in the manner indicated above.
On receipt of a copy of an instrument which has been
impounded and admitted in
Evidence ,the collector should satisfy himself that
the proper stamp duty has been realized, and if it has not , he may proceed
under section 61 to obtain a declaration to this effect from the court to which
appeals ordinarily lie from the impounding court, and thereafter proceeds as
described in that section. The collector should also decide whether the person
concerned ought to be prosecuted in the interests of the stamp law (section
43,61,70), and conversely whether the penalty realized or any portion of it
should be refunded (section 39). When the Collector receives an instrument
impounded but not admitted in evidence, he should decide whether stamp duty is
leviable or whether the instrument is duly stamped already . he should certify accordingly and his
decision is final(section 40). If stamp duty be leviable , he should require it to be paid together
with the penalty provided for in section 40(1) (b) . under section 41 the
collector may certify an instrument brought to him in the circumstances stated
in the section All duties, penalties and other charges may be recovered under
section 48 . The collector should return the document when he has done with it
to the officer from whom he received it ( section 40(3) ). It should be noted
that all instruments with the exceptions of receipts chargeable with the duty
of one anna and in the case of promissory notes chargeable with a duty of one
anna , two annas and four annas, are excluded from the provisions of section
35,40and 41 the collector cannot certify the impounded document after levying a
penalty or after prosecuting the offender .
Section 34 permits an audit officer to have an unstamped
receipt stamped in the course of an audit of a public account, and section35(b)
allows an unstamped receipt to be admitted in evidence on payment by the person
tendering it of a penalty of rupee one.
Detailed instructions issued by the High court for
the guidance of courts will be found in chapter 4-D of High Court Rules and
Orders, Volume IV, which is here re- produced for facility of reference :-
Attention is called to the provisions of section 33
to 35 of the Indian Stamp Act, II of 1899, in regard to instruments not duly
stamped, The procedure laid down in these sections is mandatory and not
discretionary; whatever discretion is permitted under the Act vests in the
collector alone, after the instrument is before him, and with what the civil courts
have no concern.
2. By
section 33 of the Indian Stamp Act, 1899, all public officers, with certain
exceptions, are required to examine every instrument chargeable with duty which
comes before them in the performance of their official functions and to impound
any instrument which appears not to be duly stamped, Every court impounding an
instrument must forthwith note on it as ‘ impounded ,’ such note being dated
and signed with the ordinary full signature of the impounding officer.
3. Under
section 35 of the same Act, every such instrument , not being an instrument
chargeable with a duty of one anna or half an anna only, or a bill of exchange
or promissory note, may be admitted in evidence in civil court if the party
desiring to use it shall pay the amount necessary to make up the proper stamp
duty, together with penalty of Rs. 5 , or when ten times the amount of the
proper duty or deficient portion thereof exceeds Rs. 5 then with a penalty of
ten times such duty or portion . under clause (b) of section 35, however , an
unstamped receipt may be admitted in evidence against the person who has given
it, on payment of a penalty of one rupee by the person tendering it.
4. Section
42 requires that civil courts certify by endorsement on every instrument
admitted in evidence under section 35
that the proper duty and penalty have been levied in respect thereof and shall also state the name and residence
of the person paying them.
5. Section
38 requires every civil courts to sent to the collector an authorised copy of
ever impounded instrument admitted in evidence, with a certificate in writing stating the amount of the duty and
penalty levied in respect thereof . The
endorsement required by section 42 should be transcribed on such copy,
when an impounded instrument has not been admitted in evidence whether from
failure to pay the requisite duty and penalty, irrelevancy, want of
registration , or other cause it must be sent in original to the collector, in
such cases the provisions of section 46 sub-section (2) , are applicable , the
copy to be made under this section must be retained in the custody of the
court.
6. Section
42, subsection (2) , entitles any person tendering a document on which
deficient stamp duty and penalty has been levied under section 35, to reclaim the same, but the third paragraph
of that section direct that the court
shall not, under any circumstances , deliver such document before the
expiration of one month from the date of
impounding it , if the collector has certified that the further
detention of such document is necessary, the court shall not deliver it until such certificate is
cancelled , it is obvious that the transmission of the copy to the collector
should be made with the least possible delay to enable him to make such inquiry
as may be necessary within copy should be despatched not latter than 48 hours from the time when the original is
impounded.
7. Any duty or penalty paid under section 35, 37,
40 or 41, and by agreement under section 29, may be included in costs or other wise
recovered by the person paying such duty or penalty under section 44.
21. Section 33.—it should be
noted that duty of scrutinising and if necessary, impounding documents produced
is obligatory for all judicial officers, arbitrators, special commissioners,
and the like, and all executive officers other than those specified in the
section, under clause 2(b) of this section the High Court has delegated the
duty of examining and impounding instruments to the Deputy registrar The most
important object kept in view when this and the succeeding sections were framed
was to stop, as far as practicable , every hole of escape from the liability
which the law imposes upon the executants of instruments to stamp duty, and officers should keep that
object in view when dealing with all instruments coming before him. It is not
an uncommon practice for persons to
produce documents improperly stamped, and on being told that they will have to pay a specified
amount by way of penalty , to withdraw the documents and forego putting them in
evidence, thus escaping punishment for an offence which is not the less an
offence whether they wish to use the instrument or not This should be guarded against, The stamping of
documents in the office of the Financial Commissioner, Punjab, is done strictly
according to the wishes of the persons concerned, and if a document so stamped
is found to be insufficiently stamped, the court or the officer before whom it
is produced shall deal with the same under the provisions of this section.
Clause 3.—An
Excise Inspector is not in charge of any office and cannot impound documents
The office of Returning Officer for purposes of
election is not a public office for the purpose of the Act. ( Government of
India notification no. 2962-F, dated 19th November 1920.)
22. Section 35.-- The procedure for validating unstamped
instruments by chapter IV of the Act
has no application to an instrument the original of which is lost and is not
forthcoming as under section 35 of the Act, it is only an original unstamped
instrument which can be validate by payment of stamp duty and penalty.
The admission in evidence of any unstamped document
is prohibited under this section , but it does not cover the case of a copy of
a document.
23. Section 36. –This section
applies to all instruments chargeable with duty , including instruments chargeable with the duty of
one anna , half an anna, bill of exchange and promissory notes.
The admission of the instrument in evidence does not
relieve the person concerned from liability under section 43.
24. Section 37. -- This section
provides for the cases where by inadvertence a stamp of improper description has been used, The
stamp of improper description must be one of the stamps described in the Indian
Stamp Act (Punjab Government endorsement no. 1633, dated 25th June,
1900). The instructions for dealing with documents improperly stamped are
contained in rule 18 in chapter 2 of
this part and should be carefully read.
25. Section 38. – This section treats of the manner in which
instruments impounded are to be dealt with . the objet in sending the copy of
the document admitted in evidence, or the original document not so admitted, is
to enable the Collector to decide whether he will prosecute the person
concerned – Sec sections 39,40, of the Stamp Act.
26. Section 39. -- if
the penalty recovered is less than Rs.5, no refund can be made, if the
instrument has been written in contravention of section 13 or section 14, it
shall be deemed to be unstamped ( section 15) and must be impounded if produced
( section 33) , and a penalty recovered if the document is put in evidence (
section 35. ) ; the whole of this penalty may be refunded by the Collector,
27. Section 40.—The Collector
may accept any sum less than ten times the proper duty or deficient portion
thereof, whether such sum exceeds or falls short of Rs. 5 compare section 35
where the minimum penalty is Rs. 5 The decision of the Collector as to the
amount of duty chargeable is final and cannot be questioned by a court.()
P.L.R.131 of 1906 F.B. )
When documents are impounded and sent to the
Collector under section 38, all that he need do is to look for payment of the
penalty and insufficient stamp duty to the person from whose custody the
documents came into the hands of the impounding officer. But stamp duty and
penalty can be compulsorily levied under section 48 only from the person liable
to pay the proper duty in the first instance.(Madras Stamp Manual, 1933.)
In certain document purporting to be a deed of
division , the registering officer was of opinion that the value of the
property divided was larger than that set forth in the document . The question
was whether, after the successful prosecution of the parties, proceedings could
be taken under section 40 and the insufficient stamp duty and a penalty
recovered . The Board of Revenue, Madras, held that the proceedings under
section 40 were still obligatory in spite of the previous prosecution.(Madras
Stamp Manual, 1933.)
28. Section 41. --- This
section may be taken as supplementary of chapter III of the Stamp Act regarding
adjudication . Under it an instrument must be presented within a year of
execution. The safeguard is, that the collector must “ satisfied that the
omission to duly stamp such instrument has been occasioned by accident,
mistake, or urgent necessity.”
29. Section 42. --- It should
be noted that the fee chargeable on an application made by a person to the
collector for the return of an impounded document referred to in sub-Section 2
of this section has been remitted , vide serial no. 13 of the list of
reductions and remissions under the Court-fees Act (Chapter 1 of part II –c).
Further it should be remembered that clause(b) to the proviso expressly
declares that nothing in this section shall affect order 13, rule 9 of the code
of Civil Procedure, which provides that “no document shall be returned which,
by force of the decree, has become wholly void or useless.”
30. Section 43. --- The
effect of section 40 an 43 is, that everyone must be allowed an opportunity of
paying the penalty before the collector exercises his discretion under section
70. Instruments should be validated after proper stamp duty and penalty have
been paid notwithstanding the fact of prosecutions having been instituted in
respect of them.
31. Section 44.—Sub section
(3) to this section has been added to provide that, where a party to a suit has
obliged to pay stamp duty, through the default of the other party, the duty so
paid may be recovered as costs and not made the subject of a separate suit,
(vide Statement of Objects and reasons.)
32. Section 45.--- (1) The
effect to of sub section (2) is to give an informal right of appeal from the
Collector to the commissioner of the division or the chief controlling Revenue authority
, as the case may be, When ordering a refund of excess duty , order should also
be passed or refund of a sum equal to the court fee paid on the application . (
Government of India , finance department, no. 1297- S . R., dated 7th
march, 1902)
(2) Commissioner
of divisions in the Punjab have been empowered to grant refunds—
(i) under sub section (1) when the mount of
the penalty refunded does not exceeds Rs. 500 and
(ii) under sub section (2)
when the amount of the excess stamp duty does not exceed Rs. 50.
(Punjab Government notification no. 40573-F . Genl.,
dated the 24th December 1932.)
33. Section 46. – A copy made
under this section is not liable to stamp duty,---vide exemption (a) to article
24, schedule I-A.
34. Section 47. –Subject to
section 34 and section 35(b) , this section does not apply to receipts .
35. Chapter V.--. Provision
is made in this chapter for refund or renewal of stamps (1) when an impressed
stamp has been spoiled ( Section 49),(2) when any person is possessed of a stamp
which he does not require for use (section 54). Under section 49, refund or
renewal can be granted only when the stamped paper alleged to be spoiled falls
clearly within one of the several clauses of the section and application is
made within the time prescribed in section 50.
Clause (a) provides for the case of a stamp
inadvertently spoiled before any instrument has been executed on it .
Clause (b) for the stamp on any document which is
written out wholly or in part, but which is not signed or executed by any party
thereto.
Clause (c) for the cases of spoiled stamps used for
certain bills of exchange or promissory notes.
Clause (d)
for any other spoiled impressed stamp on which an instrument has been
duly executed .
Section 53 lays down the mode of making allowances
for spoiled or misused stamps.
Section 54 allows a cash refund within 6 months of
purchase on certain conditions in the case of stamps not required for immediate
use and which have not been spoiled or rendered unfit for use. A deduction of
one anna in the rupee is made, but while refunding the value of stamps returned
by a licensed stamp vendor, the Collector should have regard to the orders
contained in paragraph 41 infra.
Section 55 allows a refund upon the renewal of
certain debentures of the stamp on the original or on the new debenture,
whichever is less, but no other deduction is made. The original debenture must
be produced and cancelled by the Collector , Section 51 authorises the
Collector ( see note to that section ) to make refunds in the case of stamped
printed forms no longer required by banks, etc. Here too, no deduction is made.
The procedure for the refund an renewal of stamps is
contained in chapter 7 of Part III, while the authorities competent to sanction
refunds and renewal and the condition under which refunds and renewal are
admissible are given in Appendix A.
36. Section 49.---
“impressed” stamps only are referred to in this section which terms includes
impressed labels . as well as sheets( Section 2913)) and an unstamped document
certified under section 32. In connection with clause(c) no refund can be
granted in the case of bill of exchange
which have been used as cover and sent
to firms in England or home partners or directors, although such bills may not
have been negotiated, ( Government of India Resolution no. 2696. Dated 7th
June , 1889.) Refunds under sub-clause (6) of clause (d0 of this section are
allowable independently of the refund rules in and under the ac itself in the
case of stamps rendered useless solely in consequence of changes of law or rule
. Sub clause (7) of clause (d) makes it clear that a person who throws aside an
insufficiently stamped deed , and gets a new deed in the same terms drawn up and properly stamped, is entitled to
get a refund made to him of the duty which he first of all paid upon the
insufficiently stamped and superseded deed . Registration does not ipso facto
affect the right to refund the value of a stamp of a document which has been
registered, and when refund is made in such a case, the registration office
should be informed.( See also section 50.)
37. Section 50.---Instances
have occurred in which the limit has operated as a serious hardship. Local
Governments have been authorized therefore to allow, or to delegate power to
any subordinate Revenue-authority not below the rank of Collector or Deputy
Commissioner, to allow refund or renewal of spoiled or useless stamps not
required in cases where holders are unavoidable prevented from applying for
refund or renewal within the prescribed
time . Deputy commissioner have
been given authority to deal with
applications for refund or renewal of spoilt or useless non-judicial stamps,
provided application is made with 2 years of the date of purchase or the date
on which the stamps were spoilt or rendered useless( Punjab Government letter
no. 1622 ( Final.), dated 8th September 1908 ). Such discretion
should , however , he very sparingly exercised and such allegations as
ignorance of law with regard to limitation should not be allowed to constitute
a special case. This applies to sections 52 and 54 also.
38. Section 51. --- Refunds
only are covered by this section. The section is of particular value when
companies, etc., are wound up, and all their skeleton and other stamps forms
becomes useless, No deduction is required under this section 9 Financial
Commissioner’s no. 4209, dated 21st July 1900). The power has been
delegated to Collectors ( Financial Commissioner’s notification no. 179, dated
29th September 1914)
39. Section 52. ---- In every
case the Collector must satisfy himself that the misuse was inadvertent. The
section refers to stamps of all descriptions, but caution is necessary in
refunding the value of adhesive stamps. ( see note to section 50.)
40. Section 53.---Court fee
stamps should not be granted in exchange for non-judicial stamps. The deduction
required by clause(3) must be calculated on each stamp for which the allowance
is claimed, not on the aggregate value of the stamps of the value of eight
annas each ( or total of two rupees ) would
be four annas ( one anna on each) and not two annas only. Where,
however, two or more impressed sheets or labels are used to denote the stamp duty on single instrument in
accordance with the rules in chapter 2 of this part they should , for the
purpose of calculating the deduction , be treated as single stamp, In like
manner, where a bill of exchange or promissory note is drawn in a set, the
stamps on all the parts of the set should , for the purpose of calculating the deduction , be treated as a single
stamp, provided all the sets are surrendered for cancellation ( Financial
Commissioner’s letter no. 1021, dated 9th February 1884). But where
the allowance is made by means of refresh stamp, no such deduction should be
made. Refunds on account of arms licensed , etc., refused are governed by
special rule under the Acts concerned.
41. Section 54.--- Good
stamps , purchased more than six months previously,. Are often spoilt
purposely--- an favourite method being be spilling oil or the contents of an
ink-pot over them in order to obtain a refund under section 50, which allows of
refund being made within sex moths of the date of spoiling . The spoiling may,
of course, be accidental and the Collector, if satisfied of this, may make the
refund; but it is often willful. The section referees to stamps of all
descriptions, but great caution is necessary in refunding the value of adhesive
stamps.
It has been rules by the Punjab Government in their
notification no. 32769-F./G., dated 8th
November 1930 “ that when stamps are returned into the Collector’s store on—
(1)
resignation of
vendor’s license;
(2)
revocation of license
for any fault of the licensee;
(3)
death of the vendor;
(4)
application of the
vendor for leave to restore any stamps;
the stamps should be taken back at their full value less a deduction of
one anna in the rupee; but that when they are returned on –
(5)
expiration of license;
(6)
recall of tamps by
Government;
(7)
revocation of license
for any other cause than that mentioned in (2);
they should be taken back at their full value less only any discount
allowed on their sale to the licensed vendor.
42. Section 55. – This
section is intended to give facilities to companies in respect of renewals
of debentures. It should be noted, with
reference to the proviso to the section, that rule 21 of the rules in chapter 2
of this part requires the Collector when making a refund under this section to
“ cancel the original debenture by writing on, across it, the word ‘ cancelled
‘ and his usual signature with the date thereof .” No deduction should be made.
43. Section 56. – All
applications under clause(1) of this section for revision of orders of
collectors in the Punjab should be made to the chief controlling revenue
authority through the commissioner of the division (Punjab Government letter
no. 314, dated the 6th January 1933.)
The intention of the orders is that although
commissioners have no statutory authority , they should be associated as far as
possible in the administration of the Stamp Act. When an application for
revision of the ordered of a collector is
forwarded to the Financial Commissioner under section 56(1) of the stamp
Act, the commissioner of the division should , after hearing the parties, if
necessary, express his opinion on the case. ( Financial Commissioner’s letter
no. 180/84, dated the 9th January 1935.)
44. Section 57(1)(c).—The
Punjab now has a governor . only doubt full cases should be referred to the
High Court and the authority making the reference should express its opinion.
It may be noted that if the Collector has taken
action under section 40(1) (b) and having received the deficient duty and
penalty imposed, has certified under sub-section (1)(a) that the instrument
before him is duly stamped, the effect of sub-section (2) is that the
jurisdiction of the Chief Controlling Revenue – authority to refer to the High
Court, whether such instrument is in
fact sufficiently stamped or not, is ousted.
A reference to the High Court under section
57 (1) (b) of the stamp Act can
be made only when there is a case pending which is to be disposed of by the
revenue authority on receipt of the judgment of the High Court, A reference to
the High Court on mere abstract question when there is no case pending before
the revenue authority for disposal is not competent
45. Section 59.—“case” means
a case that has not already been finally disposed of by the collector .
46. Section 60. --- The
reference under this section can only be made in the circumstances specified in
it . The judge must feel doubt as to the amount of duty to be paid in respect
of any instrument under proviso(a) to section 35. Section 60 does not deal with
a case, where reference has been made to a collector and his adjudication
obtained . Where a suit is dismissed with out being called to hearing no
reference can be made as to a document produced in court by the plaintiff
with his plaint. ( Punjab law reporter
131 of 1906, F.B. Mt. Jai Devil Versus Gokul Chand.)
47. Section 61. – This
section gives appellate courts reversionary powers in respect of decisions of
Criminal as well as of Civil and Revenue Courts in the case referred to them
(vide Statement of Objects and Reasons). It may be pointed out here that question of prosecution for an offence
against the stamp law is to be decided by the Collector irrespective of any
action of the revision court under section 61(1) of the stamp Act. ( Deputy
Commissioner, Partapgarh V. Ram Hark 93
I.C., page 909.)
No period of limitation has been prescribed for an
application by a collector to an appellate court for revision of orders under
this section, though a court will not
entertain a stale application .
Rustomji ‘s Law of Limitation , fourth edition at page 933. ( Financial
Commissioner’s letter no. 5291-E. & S., dated the 30th August
1934.)
48. Section 62. – Under this
section, the question of intention does not arise. Compare sections 43,64,65(b)
and 68.
49. Section 64.—As gifts and
settlements are generally one – sided transactions, either no value of the
property is given, or a nominal value much lower than the real amount is stated
in the instrument. Instruments of the class in question are duly stamped within
the meaning of section 2(11) of the Stamp Act. If there was an intentional
under-valuation or the document of its revenue, then a prosecution would
protect the Government against this attempted fraud.
50. Section 68.---if parties
chose to divide their contracts so as to lesson the amount of stamps they may
legally do so. Local officers should watch carefully against the practice of
post-dating hundies or bills of exchange in order to evade payment of stamp
duty and institute prosecutions in all cases in which conviction can be
obtained (B.G.R. 6006,dated 5th December 1872 , Desai).
51. Section 70.—see section
76-A. No delegation of power has been made by the local Government , See
section 43 where the collector must come to a decision as to intentions. The
collector may delegate his power to sanctions prosecutions. This is a separate
matter merely for bringing the offender before the court.
The chief Controlling Revenue Authority has
authorized all Collectors generally to
stay any prosecution or compound any offence arising under sections 63,65,and
69(a) . ( Financial Commissioner’s notification no. 116, dated 19th
may 1910.)
52. Section 71.--- The cases
of offences under stamp Act are important and should ordinarily be tried by
stipendiary magistrates familiar with the stamp rules, etc.
53. Section 73.--- Rule 3, chapter
9, part III , authorises Collectors to permit stamp auditors to inspect records
of public offices as contemplated by this section.
54. Section 74.--- The rules
framed by the local Government under this section will be found in chapter 5 of
Part III and should be studied carefully.
55. Section 75.—The rules
issued by the Government of India are contained in chapter 2 of this part and
chapter 1 of part III and should be noted carefully.
56. Section 76(2).—It should
be noted that the rules have the force
of law. Hence the penal clauses are applicable . ( See section 68 (c).)
57.
Section 76-A .—Powers have been delegated
to Commissioners of divisions in the Punjab to grant refunds to a certain
extent under section 45 of the stamp Act --- se paragraph 32 supra. (Punjab Government Notification no.
40573 –F. Genl.,dated the 24th December 1932.)
B—Notes on Articles of Schedule I and I-A of the Stamp Act.
58.
(Article 1) Acknowledgment. - One of the
most common confusions arises form the failure to discern whether an entry in
an account book is a bond or a mere acknowledgement . An entry in an account
book purports to sum up the former dealings between a money lender and his
client. The entry is always alluded to as “ striking of balance.” The amount
due is invariably stated, Then follows a
statement that a debtor acknowledges that this sum is due. If the entry
contained nothing further and was signed by the debtor ore by an agent duly
authorised in this behalf, it shall be an acknowledgment such as is contemplated
by section 19 of the Limitation Act.
But besides a mere acknowledgement , the entry in
the account books may recite that the debtor will pay the amount found due. If
so, tee will be clearly an additional element of a true bond. Reverting to the
analysis of the requisites of a bond ( notes to section 2(5), paragraph 2(iv)
ante) it would appear that such an
entry would be certainly in writing and signed by the obligor, containing at
the same time a distinct agreement by which the obligor binds himself to pay
something to the obligee. If , however , it is not attested by a witness, it is
not a bond , It is merely an agreement. The difference between a bond and an
agreement is substantial. The stamp required on bond is different from that
required on a mere agreement , and the penalties are different.
The entry, however, may not contain a specific
promise to pay, and yet there may be an implied promise. There may , however,
be something added to the acknowledgement
which , while not a specific
promise in so many words to pay the amount, yet shows that the debtor
contemplated paying the amount and in a way expressed his intention to do so.
For instance, while the ordinary wording of an acknowledgement is “ Rs. 100
baki dena,” i.e. Rs 100 remain due to be paid – words which have been held not
to contain promise --- it will be found that Rs. 100 baki dena rakhta hun, a
distinct promise that the money will be paid . here the bond is complete
(provided, of course, that it is signed and attested), Again there are entries
which record that interest is payable on the balance found due. The courts have
held that the fact that the debtor expressed his willingness to pay interest
amounts to a promise to pay the principal . The statement as to interest is
very often the ratio decdidend when determining whether an entry In an account
book is a mere acknowledgement or is in fact an agreement.
Every instrument has be considered on its own
merits, If any words importing an agreement be added, an acknowledgement loses its character as much and becomes an
agreement, or if witnessed it becomes a bond.
.
59.
(Article 2). Administration Bond - An administration bond is simply a
bond given by a person securing the due administration of property entrusted to
him by an order of the court.
60.
(Article 3) Adoption-deed. - A document executed by A in favour of B
authorising the latter to adopt his son is not liable to duty under this
article as it is merely the parents consent to the adoption and confers no authority to adopt.( Bengal
Stamp Manual)
61.
(Article 4) Affidavit – Declarations made
by soldiers who enlist under assumed names added to the Regimental Records are
liable to stamp duty of two rupees under this article ( Financial
Commissioner’s letter no. 4390, dated 1st August 1887)
The exemption does not apply to any officers of the
Customs, Income Tax and Salt Departments, as they cannot be described as “
Revenue Courts” ( Government of India no. 4 F . 6-I stamps / 125, dated 15th
April 1925.)
An election agent’s declaration requires no stamp (
Government of India Notification no. 88, dated 6th August 1921.)
62.
(Article 5.) Agreement.—See section 23-A ,
notes to section 2(5) and article I in paragraphs 2(iv) and 58 supra, table of
reductions and remissions of stamp duty in chapter 1 and note to proviso to
rule 10 (ii) in chapter 2 of this part.
63.
(Article 6) Agreement relating to deposit
of title deeds, pawn or pledge. - This
article is intended to relate only to cases in which property is
actually given in pledge. All transactions by which movable property is simply
appropriated by way of security for the discharge of a debt or engagement
without parting with its possession ( as, for example , bills of sale of stock
in trade) are outside the scope of the article , and consequently are liable to
the duty on mortgage deed as being instruments whereby one person transfers or
creates to , or in favour of , another
a right over, or in respect of specified property ( Select Committee’s
Report printed on page 231 of Part V of Gazette of India, 1898.).
64.
(Article 7) Appointment in execution of a
power - The legal meaning of the term ”appointment” is the exercise of a power conferred by a conveyance . Hence
where a deed under article 58 provided for the appointment of five trustees and
power was given to two of the five trustees to remove and discharge any of the
trustees, and in exercise of that power these two trustees executed document
discharging and removing two other trustees that document would fall under
article 7. ( Financial Commissioner’s no. 4386 dated 13th June 1914
, to deputy Commissioner , Lahore.)
65.
(Article 12) Award.–This article refers to
private awards only an award made by an order of a court in the course of a
suit being excluded from the article . ( See article 45 and table of reductions
etc., chapter 1 of this part.)