Vinita Bhargava vs M.C.D
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Judgment reserved on: 20 May, 2026
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Judgment pronounced on: 28 July, 2026
+ W.P.(C) 839/2008 & CM APPL. 854/2025
VINITA BHARGAVA .....Petitioner
Through: Mr. S. N. Bhargava, PoA of the
petitioner, in-person.
versus
M.C.D .....Respondent
Through: Mr. Gaganmeet Singh Sachdeva,
Mr. Harshpreet Singh Chadha and
Mr. Amaan Khan, Advocates for
MCD.
Mr. Jai Sahai Endlaw, Advocate
( Amicus Curiae appointed by the
Court).
CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
1. The present petition has been filed seeking quashing of the letter
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dated 3 January, 2008 issued by respondent/MCD, whereby, MCD raised a
demand of 3% of the sale consideration towards transfer duty in respect of
petitioner’s property bearing no.301, Fancy Cooperative Group Housing
Society Ltd., Vasundhra Enclave, Delhi-96 (‘subject property’).
Signature Not Verified
Signed By:VIVEK
MISHRA
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W.P.(C) 839/2008 Page 1 of 16
F ACTUAL B ACKGROUND
2. Brief facts relevant for adjudication of the present matter are set out
below.
3. The subject property was originally owned by Smt. Brinder
Chaudhary, who transferred her rights therein to Smt. Latha Nair under an
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ATS dated 7 January, 1996. Thereafter, Smt. Latha Nair executed an ATS
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dated 29 August, 2000 in favour of the petitioner for a total sale
consideration of Rs. 15,00,000/-. The petitioner has remained in continuous
possession of the subject property since then and has been regularly paying
the property tax, electricity charges and other charges. Smt. Latha Nair also
executed a General Power of Attorney (‘GPA’) in favour of the petitioner in
respect of the subject property.
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4. On 14 August, 2007, a conveyance deed was executed by DDA in
favour of the petitioner on payment of Rs.29,000/-, converting the subject
property from leasehold to freehold. The conveyance deed was registered
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with the sub-registrar on 14 August, 2007 upon payment of stamp duty of
Rs. 870/- and transfer duty of Rs.870/- totalling Rs.1740/-.
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5. On 13 December, 2007, the petitioner applied for mutation of the
subject property with MCD.
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6. On 3 January, 2008, MCD sent the impugned letter demanding
payment of transfer duty at 3% of the sale consideration for mutation of the
subject property.
7. Aggrieved by the same, the present petition has been filed by the
petitioner challenging the said impugned letter.
Signature Not Verified
Signed By:VIVEK
MISHRA
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P ROCEEDINGS BEFORE THIS C OURT
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8. On 7 March, 2008, this Court passed an interim order staying the
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operation of the impugned letter. Vide order dated 17 February, 2009, the
aforesaid interim order was made absolute till the disposal of the present
petition.
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9. This Court vide order dated 12 August, 2025 appointed Mr. Jai Sahai
Endlaw, Advocate, as an Amicus Curiae to assist the Court.
UBMISSIONS ON BEHALF OF THE PARTIES
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Submissions made by Mr. S.N. Bhargava, the Power of Attorney of the
petitioner
10. The case of the petitioner is squarely covered by the judgment of this
1
Court in Raghu Nayyar v. MCD . In Raghu Nayyar (supra) it was held that
clauses (i) to (v) of sub section (b) of Section 147 of DMC Act would not
apply to an ATS. The Court held that clause (vi) of sub section (b) of
Section 147 of DMC Act would not apply as the documents were executed
prior to the date of amendment in the Delhi Municipal Corporation Act,
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1957 (‘DMC Act’), i.e. 1 August, 2003.
Submissions made on behalf of Mr. Jai Sahai Endlaw, Advocate, the amicus
curiae
11. The levy of transfer duty under Section 147 of the DMC Act is in the
nature of a surcharge on the duty imposed under the Indian Stamp Act, 1899
(‘Stamp Act’) and is attracted only in respect of the instruments
contemplated under Section 147 of the DMC Act. The power to levy transfer
duty is not an independent taxing power but is incidental to the levy of
1
2007 SCC OnLine Del 938.
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MISHRA
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stamp duty and, therefore, cannot be imposed in the absence of a
corresponding liability to pay stamp duty.
12. In the present case, the MCD seeks to levy transfer duty on the basis
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of an ATS dated 29 August, 2000 by treating the said document as a
“ contract for transfer of immovable property ” falling within Section
147(2)(b)(vi) of the DMC Act. Such a course is legally impermissible in as
much as clause (vi) of Section 147(2)(b), which brought “ contracts for
transfer ” within the ambit of transfer duty, came into force only with effect
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from 1 August, 2003. The subsequent amendment cannot be retrospectively
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applied to transactions concluded prior to 1 August, 2003.
13. On the date of execution of the ATS, such an agreement was neither
compulsorily registrable nor amenable to stamp duty in the manner
subsequently contemplated under the amended statutory regime. Since
Section 147 envisages transfer duty as a surcharge upon stamp duty, it is
contended that where the ATS itself did not attract stamp duty at the time of
its execution, the question of levying transfer duty thereon could not arise.
Consequently, the MCD could not insist upon payment of transfer duty on
the ATS as a condition precedent for effecting mutation in its records.
14. Reliance is also placed upon the decision of the Supreme Court in
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Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana , wherein it was
held that an ATS does not, by itself, convey title nor can it be treated as a
conveyance or sale deed. Therefore, an ATS cannot be equated with a
conveyance so as to attract transfer duty under Section 147 of the DMC Act.
15. The relevant document for determining the liability towards stamp
duty and the consequential transfer duty is the registered conveyance deed.
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Transfer duty has already been recovered on the said conveyance deed.
Therefore, no further transfer duty can be demanded with reference to the
earlier ATS.
16. Reliance is placed on the judgment of the Division Bench of this court
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in Collector of Stamps v. Dr. Hem Lata , to contend that stamp duty is
chargeable on the conveyance deed and not on any antecedent document
which does not itself operate as a conveyance. Since transfer duty under
Section 147 is merely a surcharge upon stamp duty, the same principle
would equally govern the levy of transfer duty.
17. Reliance is also placed upon the judgment of this Court in Raghu
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Nayyar (supra), wherein it was held that an ATS executed prior to 1
August, 2003 would not attract transfer duty under Section 147 of the DMC
Act and that payment of such transfer duty could not be insisted upon as a
pre-condition for sanctioning mutation.
Submissions made by the Mr. Gaganmeet Singh Sachdeva, Advocate, on
behalf of the MCD
18. Section 147 of the DMC Act enables the MCD to levy duty in the
form of surcharge on transfers of immovable property situated within the
territory of Delhi at a rate not exceeding 5%. In terms of the notification
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dated 6 July, 2023 issued under Section 147(2)(b) of the DMC Act, rate of
transfer duty has been increased from 2% to 3% in the case of females. This
enhancement is applicable for registration of instruments having amount of
more than Rs.25,00,000/-.
2
(2012) 1 SCC 656.
3
1996 SCC OnLine Del 604.
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19. Under Section 128(5) of the DMC Act, there is an obligation on the
competent authority to satisfy that all duties required to be paid under
Section 147 have been paid after recording any transfer of the property.
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20. A departmental notification dated 28 January, 2002 has been issued
by MCD directing all assessing officers to ensure proper transfer duty stands
paid before processing mutation of any property on the basis of a registered
document.
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21. On 23 December, 2011, MCD has issued a circular which states that
transfer duty is assessed independently of the stamp duty and is chargeable
under Section 147 of the DMC Act. Even though it is recoverable as
surcharge on the duty imposed under the Stamp Act, it does not form part of
the stamp duty itself as it is levied over and above the same under the
provisions of DMC Act. The transfer duty is to be collected by
Registrar/Sub-Registrar Stamps, Government of NCT of Delhi (‘GNCTD’)
and the same is calculated as per the applicable rates and the circle rates
notified by the GNCTD or on the value of consideration for transfer as set
out in the contract/deed/instrument, whichever is higher on the date of filing
application under Section 128 of the DMC Act.
22. The amount charged by DDA at the time of execution of conveyance
deed was only for the purpose of converting the land beneath the land in
question from leasehold to freehold. This amount does not take into account
the cost of the subject property itself or the amount mentioned in the
agreement to sell, which forms the actual basis of transfer of property in
favour of the petitioner by the original allottee.
23. At the time of execution of conveyance deed and conversion of land
from leasehold to freehold, the petitioner did not pay the full transfer duty
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payable under Section 147 of the DMC Act. The transfer duty was payable
at the rate prescribed on 90% of the consideration mentioned in the ATS.
24. In the present case, the petitioner purchased the property on the basis
of an ATS and a GPA, which were not registered documents. Therefore, the
mutation can be permitted only upon the petitioner paying the consideration
in terms of the ATS.
NALYSIS AND INDINGS
A F
25. Section 147 of the DMC Act vests the power with the MCD to levy
transfer duty on immovable properties located within Delhi. In terms of
Section 147(2) of the DMC Act, transfer duty is levied in the form of
surcharge on the stamp duty imposed under the Stamp Act. For ease of
reference, Section 147 is set out below:-
“ 147. Duty on transfer of property and method of assessment thereto. – (1)
Save as otherwise provided in this Act , the Corporation shall levy a duty on
transfers of immovable property situated within the limits of Del hi in
accordance with the provisions hereafter in this section contained.
(2) The said duty shall be levied –
(a) in the form of a surcharge on the duty imposed by the Indian
Stamp Act, 1899 (2 of 1899) as in force for the time being in
the Union territory of Delhi, on every instrument of the
description specified below, and
(b) at such rate as may be determined by the Corporation not
exceeding five per cent, on the amount specified below
against such instruments-
Description of
Amount in which duty
Instrument
should be levied
(i) Sale of immovable
property
The amount or value of
the consideration for the
sale, as set forth in the
instrument.
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MISHRA
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(ii) Exchange of
immovable property
value,
The value of the
property of the greater
as set forth in the
instrument.
(iii) Gift of immovable
The value of the
property, as set forth in
the instrument
property
(iv) Mortgage with
possession of
immovable property
The amount secured by
the mortgage as set
forth in the instrument.
(v) Lease in perpetuity of
immovable property
The amount equal to
one-sixth of the whole
amount of value of the
rent which would be
paid or delivered in
respect of the first fifty
years of the lase as set
forth in the instrument.
(vi) Contract for transfer
Ninety per cent of the
value of the
consideration for the
transfer as set out in
the contract.”
of immovable
property
[emphasis supplied]
26. “ Contract for transfer of immovable property ”, Entry (vi) above, was
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added to Section 147(2)(b) vide amendment carried out on 1 August, 2003.
27. From the statutory scheme under the DMC Act, it is manifest that
transfer duty is an independent levy under Section 147 of the DMC Act.
Even though transfer duty is recoverable as a surcharge on stamp duty
payable under the Stamp Act, it does not form a part of the stamp duty.
Merely because stamp duty has not been levied on the actual value, it would
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MISHRA
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not debar the MCD from levying transfer duty in terms of Section 147 of the
DMC Act. Transfer duty is collected by the Registrar/Sub
Registrar/Collector of Stamps at the time of registration of document of
transfer relating to the property. However, it is collected on behalf of the
MCD and is remitted to MCD.
28. At this juncture, it may be relevant to refer to sub section (5) of
Section 128 of the DMC Act, which is set out below:-
“ 128. Notice of transfers.
… (5) the Commissioner shall record every transfer or devolution of title
notified to him under this section in his books and in the Municipal
Assessment Book ;
Provided that before recording such transfer or devolution of
title, the Commissioner shall satisfy himself that any duty on transfer of
property leviable under section 147 has been paid . ”
[emphasis supplied]
29. Section 128 of the Stamp Act casts a statutory obligation upon the
MCD to verify that the transfer duty payable under Section 147 of the DMC
Act has been duly paid prior to effecting mutation. The MCD has the right to
examine the documents purportedly evidencing the transfer to ensure that
the payment of statutory dues is complete.
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30. In terms of the circular issued by MCD on 23 December, 2011
(Annexure A-2 filed along with written submissions on behalf of MCD), the
assessing officers have been directed to collect transfer duty on instruments
of transfer of immovable property on which the transfer duty has not been
paid at the time of registration of the document with the registering
authorities. The circular further provides the transfer duty will be based on
circle rates as notified by GNCTD or on the value of consideration for
transfer as set out in the instrument, whichever is higher on the date of filing
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of the application under Section 128 of the DMC Act. The relevant extracts
from the said circular are set out below:-
“ It has been noticed that while registering instruments
purporting to be transfer of immovable properties, in some of the cases,
the registering authorities of the GNCTD have not been collecting duty
on transfer which is MCD’s share u/s 147 of the DMC Act in stamp duty
applicable to such instruments. This is more so in the case of “contract
of transfer of immovable properties” introduced w.e.f. 01.08.2003 in
Section 147 whereby duty on transfer is to be levied on 90% of the value
of the consideration for the transfer as set out in such contract. Such
instruments are other than (i) to (v) specified u/s 147(2)(b) of the Act.
All the Assessing Officers are hereby directed that Transfer Duty
on the instruments purporting to be transfer or contracts for transfer of
immovable on which the registering authority of GNCTD has not
collected surcharge on stamp duty (which is MCD’s share) be collected
forthwith. This Transfer Duty will be at the present rates applicable for
Transfer Duty and till be based upon the circle rates as notified by
GNCTD (Revenue Department) vide notification
No.FJ(281)/Regn/Br/HQ/Div.Com/09 dated 4.2.2011 (came into force
w.e.f. February 08, 2011) or on the value of consideration for transfer
as set out in the said contract deed/instrument, whichever is higher, on
the day of filing application u/s 128 of the DMC Act. On collection of
such Transfer Duty, mutation u/s 128 of DMC Act will be carried
out . ”
[emphasis supplied]
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31. Another circular was issued by MCD on 16 July, 2012 (Annexure A-
3 filed along with written submissions on behalf of MCD), wherein it was
provided that in case the transfer duty on the total consideration amount has
not been charged by GNCTD, MCD could collect the differential transfer
duty at the time of mutation under Section 128 of the DMC Act. Relevant
extract from the aforesaid circular is set out below:
“ Section 128 (5) of the DMC Act states that before recording such
transfer or devolution of title (i.e. mutation), the Commissioner shall satisfy
himself that any duty on transfer of property leviable under section 147 of
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the Act has been paid. Thus, the Commissioner is statutorily obliged to
ensure the transfer duties payable under section 147 are duly paid before
carrying out any mutation under Section 128 of DMC Act.
Therefore, in terms of the provisions of DMC Act, the continuation to
existing circulars and instructions already issued dealing with mutation
cases, the last executed Conveyance Deed should be the material for
mutation and in case the transfer duty on the total consideration amount
(as reflected in the Instrument of Transfer of an immovable property) has
not been charged by the SRO, GNCTD, the Municipal Corporation may
collect the difference of transfer duty at rates of the relevant period of
charging transfer duty on the amount which has escaped stamp duty and
proceed with the mutation under Section 128 of the DMC Act. ”
[emphasis supplied]
32. In the present case, the petitioner has purchased the subject property
on the basis of an agreement to sell and the GPA executed in her favour on
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29 August, 2000. It is an admitted position that the petitioner has been in
possession of the subject property on the basis of the said ATS and GPA and
has been regularly paying the property tax, electricity charges and other
charges. Subsequently, a conveyance deed was executed by the Delhi
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Development Authority (‘DDA’) in favour of the petitioner on 14 August,
2007, which was a registered document.
33. At the time the petitioner applied for mutation with the MCD, i.e. on
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13 December, 2007, Section 147(2)(b) of the DMC Act had been amended
so as to include an ATS in the list of documents (Entry no. (vi), “ contract for
transfer of immovable property ”), on which transfer duty was payable. The
amendment provided that the transfer duty would be leviable on 90% of the
sale consideration mentioned in the document, i.e. agreement to sell, at the
st
prescribed rate. In terms of the MCD resolution no. 193 dated 21
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September, 2007 released vide notification dated 19 November, 2007 with
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effect from 20 November, 2007, the prescribed rate was 2% in case of
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females. The said rate of 2% was increased to 3% vide circular dated 16
July 2023, in respect of properties valued at Rs.25,00,000/- or more.
34. Once the amendment had been carried out in the DMC Act, there was
no impediment for MCD to demand transfer duty on the differential amount,
taking into account the transfer duty paid at the time of registration of the
conveyance deed. The amount mentioned in the ATS was the actual amount
of consideration paid by the petitioner towards purchase of the subject
property and therefore, would be the relevant consideration for the purposes
of determining transfer duty under Section 147(2)(b) of the DMC Act.
35. The relevant date for the purposes of levying transfer duty would be
the date when the petitioner approached the MCD for carrying out mutation
and not the date on which the ATS was executed. Therefore, I do not find
any merit in the contention of the petitioner and the amicus curiae that the
MCD is trying to apply the amendment in a retrospective manner.
36. It is contended on behalf of the petitioner that at the time of execution
of the conveyance deed, appropriate amount of stamp duty as well as
transfer duty has been paid by the petitioner and therefore, there is no
requirement to pay any further transfer duty.
37. A perusal of the conveyance deed shows that through the conveyance
deed, “ reversionary interest in the land underneath the said property ” has
been transferred in favour of the petitioner. Therefore, the amount of stamp
duty and transfer duty charged upon the petitioner was only in respect of the
underlying land and not in respect of the flat constructed over the said land.
Therefore, this Court cannot accept the contention of the petitioner that the
entire transfer duty stood paid by the petitioner at the time of execution and
registration of the conveyance deed.
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MISHRA
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38. The petitioner has placed reliance on the judgment of the coordinate
bench of this Court in Raghu Nayyar (supra) in support of her contention
that transfer duty cannot be charged on an ATS. To be noted, the aforesaid
judgment was carried in appeal both by the petitioners therein as well as
MCD and the appeals were dismissed by the Division Bench of this Court.
39. In Raghu Nayyar (supra) , the ATS was entered in 1997 and the
petitioner therein applied for conversion from leasehold to freehold with
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DDA on 15 January, 2000. The conveyance deed was registered on 25
June, 2001 after the Collector of Stamps adjudicated the stamp duty and
transfer duty on the value of Rs.10,000/-. From paragraph 10 of the
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judgment in Raghu Nayyar (supra), it appears that on 23 June, 2003 MCD
had proposed recovery of transfer duty @ 3% of the value in the agreement
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to sell. Pertinently, the aforesaid date of 23 June 2003 was before the date
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of the amendment carried out in Section 147(2)(b) of the DMC Act, i.e. 1
August 2003, so as to include an ATS as an instrument on which transfer
duty could be charged.
40. The writ petition in Raghu Nayyar (supra) was allowed by the Single
st
Bench noting that prior to 1 August, 2003, no transfer duty was payable on
an ATS. Therefore, the value mentioned in the conveyance deed was taken
as relevant value for purposes of payment of transfer duty and not the value
indicated in the agreement to sell. Paragraphs 27, 28 and 31 of the said
judgment are set out below:-
“ 27. Once the transfer duty was tightly as adjudicated upon and collected
by the Collector of Stamps, there was no question of the MCD again
demanding transfer duty in terms of the unamended Section 147 of the
DMC Act, 1957 as it stood at that point in time. It requires to be noticed
that under that provision the transfer duty is levied in the form of a
surcharge on the stamp duty under Indian Stamp Act, 1899 and “other
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instruments of the description specified below at such rate as may be
determined by the Corporation not exceeding 5% on the amount specified
below against such instrument.” The above provision therefore envisages –
(i) that the transfer duty is a surcharge on the stamp duty;
(ii) that the transfer duty is leviable only on those
instruments which answer the description set out in the
table in s. 147;
(iii) the transfer duty would be leviable at a rate not
exceeding 5% on the amounts specified in Section 147
against such instruments.
28. Prior to 1.8.2003, the date from which the said Section 147 was
amended by Section 23 of the DMC Amendment Act 6 of 2003, there was
no provision under which “a contract for transfer of immovable property”
would attract transfer duty. In other words prior to 1.8.2003 if the
document in question did not answer the description of a sale deed and it
was merely an agreement to sell, it would not be amenable to levy a
transfer duty…
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31. Secondly, the judgment does not at all refer to the parallel
developments that had been taking place by way of Amendment to the
Registration Act, 1908. The SOR of the Amendment Bill which have been
extracted hereinabove clearly shows that the Legislature perceived that
difficulty in construing the agreement to sell, which till then was not
compulsorily registrable, as a sale deed merely on the basis of what was
stated in the recitals of such a document. Further, the Legislature was also
clear that prior to 24.9.2001 such documents were not to be treated as
compulsorily registrable. The intention of the Legislature has been made
specific by the subsequent amendment to Section 147 of the DMC Act,
1957 which was only given prospective effect from 1.8.2003. ”
41. In Raghu Nayyar (supra), transfer duty was sought to be levied before
the amendment of Section 147 of the DMC Act, hence, the Court held that in
terms Section 147 as it stood before the amendment, MCD could not levy
transfer duty on an ATS as a pre-condition for grant of mutation. In the
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present case, the petitioner applied for mutation with MCD on 13
December, 2007, when the provisions of Section 147(2)(b) of the DMC Act
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had already been amended and ATS was included as an instrument, on which
transfer duty could be levied. Therefore, the judgment in Raghu Nayyar
(supra) does not advance the case of the petitioner.
42. The petitioner has also placed reliance on the judgment of the
Division Bench in Collector of Stamps v. Dr. Hem Lata (supra) to contend
that the stamp duty and transfer duty should be levied on the value of
consideration mentioned in the conveyance deed. However, the said
judgment dealt exclusively with the levy of stamp duty under the Stamp Act.
The issue of transfer duty under the DMC Act did not arise for consideration
in the said case.
43. In fact, if the interpretation of the petitioner were to be accepted then
the very purpose of making an ATS compulsorily registerable and the
consequent amendment under section 147 of the DMC Act would be
defeated. Therefore, MCD was well within its right to demand transfer duty
based on the consideration mentioned in the ATS, which was in accordance
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with the amendment of Section 147 of the DMC Act carried out on 1
August, 2003. The petitioner’s application for mutation was admittedly after
the date of the amendment.
ONCLUSION
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44. In view of the discussion above, this Court is of the view that the
petitioner shall be liable to pay the balance transfer duty to the MCD at the
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rate of 2%, i.e. the rate prevailing as on 13 December, 2007 when
petitioner applied for mutation. The transfer duty shall be payable on 90% of
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the sale consideration mentioned in the ATS dated 29 August, 2000.
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45. Accordingly, the present petition is disposed of in the aforesaid terms.
46. The pending application also stands disposed of.
AMIT BANSAL
(JUDGE)
JULY 28, 2026
Vivek/-
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Signed By:VIVEK
MISHRA
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