M/S HIMGIRI CORPORATION vs OFFICE OF SUPERINTENDENT OF STAMPS AND INSPECTOR GENERAL OF REGISTRATION, GANDHINAGAR
- Court
- Gujarat High Court
C/SCA/8957/2026 (GJHC240473042026) CAV JUDGMENT DATED: 02/09/2026
Reserved On : 30/07/2026
Pronounced On : 02/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8957 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
✓
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M/S HIMGIRI CORPORATION
Versus
OFFICE OF SUPERINTENDENT OF STAMPS AND INSPECTOR GENERAL
OF REGISTRATION, GANDHINAGAR & ANR.
==========================================================
Appearance:
MR. SHALIN MEHTA SENIOR ADVOCATE WITH MR. MANYA N
ANJARIA(13475) for the Petitioner(s) No. 1
NIKUNJ KANARA AGP for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
CAV JUDGMENT
1. Heard learned Senior Advocate Mr. Shalin Mehta, with
learned Advocate Mr. M. N. Anjaria, for the petitioner and
learned AGP Mr. Kanara for the respondent-State.
2. When the hearing was concluded on 30.07.2026, while
keeping the matter reserved for judgment, the Rule was issued
and the matter was heard finally.
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2.1. By way of this petition, the petitioner has prayed for
quashing and setting aside the impugned notices dated
09.06.2025 and 20.03.2026, at Annexures A1 and A2,
respectively, issued by the Office of the Superintendent of
Stamps and Inspector General of Registration, Gandhinagar,
under Section 39(1)(b) of the Gujarat Stamp Act, 1958. By way
of both the impugned notices, which are substantially identical,
the respondents have initiated proceedings under Section 39(1)
(b) of the Stamp Act, determining the total stamp duty payable
on the document and, accordingly, calling upon the petitioner
to pay deficit stamp duty amounting to Rs.22,49,01,851/-. The
petitioner has, therefore, prayed that the said amount shall not
be recovered from the petitioner, in view of Article 20(c)
relating to the Transfer of Property Act, on the basis of the
market price of the property prevailing at the relevant point of
time.
3. It is the aforesaid two notices which are under challenge
by way of this petition.
3.1. In the notices, reference is made to around 35 different
documents (instruments) executed by the petitioner in respect
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of certain properties and, as per the notices, the total deficit
stamp duty has been calculated on the basis of the market
value of the said properties.
4. The brief facts leading to the filing of this petition are
stated as under;
4.1. The petitioner, M/s. Himgiri Corporation, is a partnership
firm constituted in the year 1975 under the provisions of the
Indian Partnership Act, 1932, and originally comprised three
partners, namely;
(i) Karamchand Premchand Private Limited (KPPL);
(ii) Sarabhai Private Limited; and
(iii) Shahibaug Enterprise Limited.
4.2. At the time of execution of the partnership deed, as a
part of its capital contribution, over and above other land and
cash, KPPL brought in the property bearing Survey No.192,
comprised in Town Planning Scheme No.31 (University),
bearing Final Plot No.99, admeasuring 12,383 sq. metres,
situated at Moje Vastrapur, Taluka Vastrapur, District
Ahmedabad, which is hereinafter referred to as the “subject
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property”. Accordingly, the partners executed a partnership
deed on 08.10.1975, whereby they agreed to carry on business
in partnership under the name and style of M/s. Himgiri
Corporation. Thereafter, the partnership firm underwent several
changes in its constitution from time to time, for which
separate deeds of reconstitution of partnership were executed.
The partnership was lastly reconstituted in the year 2010.
Between the years 1975 and 2010, the partnership firm
executed, in all, 19 deeds of reconstitution, including the
original partnership deed. The details of the various deeds of
reconstitution are stated as under;
Sr.
Date of
Nature of Transaction
No.
Transaction
1 08.10.1975 Incorporation of the Partnership firm with
three (3) Partners.
2 20.03.1976 Reconstitution of the Partnership firm by
admission of four (4) additional Partners,
thereby increasing the total numbers of
partners from three to seven (7).
3 27.09.1976 Reconstitution of the partnership firm
pursuant to the retirement of one (1)
Partner, whereby the remaining six (6)
partners continued to carry on the
business of the firm.
4 21.04.1980 Reconstitution of the partnership firm
pursuant to the retirement of one (1)
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Partner, reducing the total number of
partners to five (5). The remaining
partners continued the partnership firm.
5 11.12.1981 Reconstitution of the Partnership firm by
retirement of one (1) partner and
admission of a new partner. The total
number of partner remains five (5).
6 22.01.1982 Modification of the profit-sharing ratio
between existing partners.
7 02.04.1984 The subject document titled as
Reconstitution of the Partnership and by
which three (3) partners were added.
Total Number of partners - eight (8).
8 03.07.1984 The subject document is Deed of
Partnership by which four (4) partners left
and the remaining four (4) continued as
partners.
9 03.12.1991 Reconstitution of the Partnership firm by
retirement of two (2) partners and
admission of three (3) new partners,
resulting in total of five (5) Partners.
10 03.04.1993 Reconstitution of the Partnership firm by
retirement of two (2) partners and
admission of three (3) new partners,
resulting into total of six (6) Partners.
11
24.10.1993 Reconstitution of the Partnership firm by
retirement of three (3) partners and
admission of sixteen (16) new partners,
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resulting into total of Nineteen (19)
Partners.
12 11.11.1993 Execution of supplementary agreement
13 24.01.1996 Reconstitution of the Partnership firm by
retirement of five (5) partners. Remaining
total number of partners Fourteen (14).
14 28.03.1996 Reconstitution of the Partnership firm by
admission of five (5) new partners,
increasing the total numbers by Nineteen
(19).
15 01.09.2000 Reconstitution of the Partnership firm by
retirement of eight (8) Partners and
admission of one (1) new partners,
resulting in total numbers of partners to
twelve (12).
16 23.01.2004 1 partner left (as he passed away).
Remaining 11 partners continued with the
firm
17 01.04.2005 Reconstitution of the Partnership firm by
retirement of two (2) Partners and
admission of one (1) new partners,
resulting in total numbers of partners to
ten (10).
18 01.04.2008 Reconstitution of the Partnership firm by
retirement of six (6) Partners, remaining
partners were four (4)
19 06.10.2010 One of the partner passed away, and his
th
son was replaced as the 5 partner.
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4.3. Although the aforesaid transactions took place, the
subject property remained with the petitioner throughout, until
it was sold by way of a deed of conveyance dated 18.10.2024,
which was registered with the Sub-Registrar of Assurances on
the same day under Serial No.12481 and whereby the subject
property was conveyed in favour of M/s. Godrej Properties
Limited.
4.4. The aforesaid conveyance deed was voluntarily submitted
for adjudication under Section 31 of the Gujarat Stamp Act,
1958 by the purchaser, who is not a party to the present
petition. Pursuant to the aforesaid application, the authority,
vide order dated 16.10.2024, adjudicated the same and
determined the stamp duty payable thereon. Accordingly, the
stamp duty was paid as determined by the order dated
16.10.2024.
4.5. Thereafter, the purchaser, i.e. M/s. Godrej Properties
Limited, received a notice dated 11.11.2024 from the
Additional Superintendent of Stamps, Gandhinagar, under
Section 68(2) of the Gujarat Stamp Act, 1958, alleging that
appropriate stamp duty had not been paid in respect of the
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changes made in the constitution of the partnership firm. By
way of the aforesaid notice, the authority also sought copies of
all relevant partnership deeds for verification. In compliance
with the said notice, on 09.12.2024, the present petitioner,
being the seller of the land, submitted photocopies of all the
partnership/reconstitution deeds as sought for vide notice dated
11.11.2024.
4.6. Upon submission of the aforesaid photocopies, the
petitioner received a notice dated 09.06.2025 from the
Collector and Additional Superintendent of Stamps,
Gandhinagar, initiating proceedings under Section 39(1)(b) of
the Gujarat Stamp Act, 1958, alleging that the documents
supplied by the petitioner and listed in Schedule II to the
conveyance deed dated 18.10.2024 had not been duly stamped
and that the stamp duty payable thereon under the provisions
of the Act had not been paid at the relevant point of time,
and thereby raising a demand of Rs.22,49,01,851/-. The
petitioner was also directed to submit its objections.
4.7. The petitioner appeared before the authority and, from
time to time, sought adjournments on various grounds, which
were granted. In the meantime, another notice dated
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20.03.2026 was issued to the petitioner, which was almost
verbatim the same as the earlier notice, and the aforesaid
demand for deficit stamp duty was again raised. Being
aggrieved by and dissatisfied with the aforesaid two show-
cause notices, the petitioner has preferred the present petition
seeking the reliefs which have already been set out in the
foregoing paragraph.
5. The State Government appeared on advance copy and, on
03.07.2026, when the matter was listed before this Court, upon
a request made by the learned AGP, the matter was adjourned
to 09.07.2026. On 09.07.2026, after hearing the parties, this
Court passed the following order while issuing notice;
“1. I have heard Mr. S. N. Soparkar, learned Senior
Counsel assisted by Mr. Manya N. Anjaria for the
petitioner and Mr. Nikunj Kanara, learned Assistant
Government Pleader appearing for the respondents.
2. Learned Senior Counsel Mr. Soparkar submitted that
though the land has remained as it is and the same has
never been transferred, it is only on account of
composition and Partnership Deed having been changed
from time to time and even the last document of the
year 2015 also was registered by the respondents after
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receiving the payment of sufficient Stamp Duty for which
there is no dispute, now vide notices dated 9.6.2025 and
20.3.2026, the respondents have demanded a sum of
Rs.22,49,01,851/- from the petitioner when the land was
sought to be transferred to the third party and along
with the Conveyance Deed, the Partnership Deeds were
attached, now the respondents are going behind the
aforesaid Transfer Deeds and taking into consideration the
Transfer Deeds, are demanding the stamp duty of more
than Rs.22 Crores which is not permitted in view of the
Division Bench decision of this Court in the case of
Collector of Stamp v. Tulsi Rice and Pulse Mills reported
in AIR 2021 GUJARAT 72 wherein the Full Court
judgment in the case of Velo Industries v. Collector,
Bhavnagar, reported in 1971 ITR 291 as well as the
decision of the Hon’ble Supreme Court in the case of
Commissioner of Income Tax, Madhya Pradesh, Nagpur
and Bhandara v. Dewas Cine Corporation, reported in
AIR 1968 SC 676 as well as the decision of the Hon’ble
Supreme Court in the case of Addanki Narayanappa v.
Bhaskara Krishnappa (Dead) and thereafter his heirs,
reported in AIR 1966 SC 1300 were considered. On the
basis of the aforesaid decisions, it is submitted that the
Division Bench has held that in case of change of
Partnership, the same would not attract any stamp duty
as a conveyance and the stamp duty would require only
in case of transfer or assignment of land to third parties.
In the instant case, the petitioner has already paid the
stamp duty towards the transfer. But what is now being
demanded is the stamp duty taking into consideration the
earlier change in the constitution of the Firm which
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according to learned Senior Counsel Mr. Soparkar is not
permissible in view of aforesaid decisions.
3. Mr. Nikunj Kanara, learned Assistant Government
Pleader appearing for the respondents requests for time to
take necessary instructions and to file detailed reply.
4. Considering the above, issue notice to the respondents
returnable on 14.7.2026. Learned Assistant Government
Pleader waives service of notice on behalf of respondents.
In the meantime, there shall be ad-interim relief in terms
of paragraph 11 (C).
To be listed immediately after fresh matters.”
6. Thereafter, the State Government filed three separate
replies dated 14.07.2026, 20.07.2026 and 29.07.2026. In its
reply dated 14.07.2026, the State Government filed a detailed
reply, and the stand taken by the State Government can be
summarized as under:
6.1. The petition is premature and is not maintainable, as the
petitioner has challenged only the notices dated 09.06.2025
and 20.03.2026.
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6.2. The petitioner can participate in the adjudication
proceedings and, if a final order is passed against the
petitioner, it would be open to the petitioner to challenge the
same in accordance with the scheme of the Act.
6.3. There is a delay on the part of the petitioner, as the
petitioner has challenged the impugned notice dated
09.06.2025 belatedly and, instead of filing objections to the
show-cause notice, on the one hand, sought time from the
authority, while, on the other hand, preferred the present
petition.
6.4. Though the petitioner has referred to only one property in
the petition, in fact, the partnership firm was the owner of a
number of properties, and the show-cause notice has been
issued collectively in respect of all such properties.
6.5. The partnership firm underwent 19 changes in its
constitution between 1975 and 2010. During this period,
partners were inducted and retired, and the profit-sharing ratio
was varied from time to time.
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6.6. As per Clause 10 of the partnership deed, upon the
retirement of any partner, such partner’s “share” shall be
absorbed by the surviving or continuing partners in proportion
to their respective shares in the partnership. This would mean
that, upon the retirement of a partner, such partner’s
undivided share in the assets of the firm, including the
immovable properties, stands transferred to and
correspondingly enlarges the share of the continuing partners,
which would mean that if the retiring partner is thereby
divested of all interest in the property and the continuing
partners are correspondingly invested with a larger interest
than that held by them immediately prior thereto.
6.7. According to the respondents, the aforesaid act would
constitute a transfer of interest in the property under the
provisions of the Stamp Act and, therefore, the aforesaid
notices were issued.
6.8. The State Government, by setting out its case in detail,
took a stand that the judgments relied upon by the petitioner,
which have been referred to in the interim order, are not
applicable to the facts of the present case.
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7. The petitioner filed its first rejoinder to the reply dated
14.07.2026 and submitted that the show-cause notices had
been issued after an inordinate delay and were, therefore,
without jurisdiction.
7.1. In the rejoinder, it was stated that, in view of the settled
legal propositions of law, adjustment of the interest of the
partners in the partnership firm would not constitute a transfer
so as to attract stamp duty under the provisions of the Stamp
Act.
7.2. It was also contended that, even if the documents in
question had been impounded by the respondents, the factum
of such impoundment had not been stated in the show-cause
notices. According to the petitioner, such omission amounted
to a procedural infirmity on the part of the respondents in
issuing the notices, and the omission of such an important fact
from the notices indicated that the notices had been issued in
a mechanical manner.
7.3. Thereafter, the respondent filed another affidavit-in-reply
on 20.07.2026 and stated that, vide notice dated 11.11.2024
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issued under Section 68(2) of the Gujarat Stamp Act, 1958, the
present petitioner was called upon to produce the original
deeds of partnership referred to in Schedule II to the sale deed
within a period of seven days from the date of receipt of the
notice. However, the petitioner failed to produce the original
partnership deeds within the time stipulated in the said notice
dated 11.11.2024. It was only on 09.12.2024 that the petitioner
provided photocopies of the documents referred to in Schedule
II to the sale deed.
7.4. It was further submitted that all 19 documents, i.e.
photocopies of the documents referred to in Schedule II to the
sale deed of the partnership firm, were received by the
respondent and were impounded by the respondent on
05.06.2025 under Section 33 of the Gujarat Stamp Act, 1958.
It was, therefore, submitted that, since the aforesaid documents
were impounded on 05.06.2025 under Section 33 of the Act,
the notices dated 09.06.2025 and 20.03.2026 cannot be said to
be illegal and that the proceedings initiated against the
petitioner are in accordance with law.
7.5. The petitioner filed another rejoinder in response to the
reply dated 20.07.2026 and stated that the photocopies of the
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deeds of reconstitution of the partnership firm for the period
from 1975 to 2010, which were subsequently impounded, had
been placed before the authority by the purchaser/third party
along with its application under Section 31 of the Act, seeking
adjudication by the Collector as to the proper stamp duty
payable thereon.
7.6. By reproducing the amended Section 33 of the Act in the
rejoinder, the petitioner contended that, under Section 33(4) of
the amended Act, the Collector is required to call for the
original documents and only thereafter, if the original
documents are not produced within the specified time, the
Collector can impound the photocopies of the
documents/instruments called for. In the instant case, the
authority had never issued any notice under Section 33(4) of
the Act to the petitioner. It was, therefore, contended that the
action of the respondents in impounding the photocopies of the
documents could not be said to be in consonance with the
provisions of the Act and, consequently, the authority could
not have issued the notices under Section 39(1)(b) of the Act
on the basis of such impoundment, which itself was illegal.
7.7. In the rejoinder, it was also contended that, if the
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provisions of the Act are interpreted in the manner in which it
is sought to be interpreted by the respondents with regard to
the exercise of powers under Section 68(2), the same would
render the powers conferred under Section 33(4) of the Act
redundant.
7.8. It was also contended that it is well settled that, when a
statute provides for a thing to be done in a particular manner,
it must be done in that manner and in no other manner. In
the instant case, as the photocopies of the documents in
question were impounded on 05.06.2025, i.e. after the
amendment to Section 33 of the Act had come into force,
unless procedure prescribed under Section 33(4) is followed,
the authority could not have impounded the photocopies of the
document under Section 33(5).
7.9. Thereafter, when the matter was heard on 30.07.2026,
the respondents filed a third affidavit dated 29.07.2026 and
contended that the object of Section 33(4) is only to provide
an opportunity to the concerned party to produce the original
document where a deficiency is noticed from a copy thereof. It
was further contended that, as the aforesaid opportunity had
already been granted to the petitioner under Section 68(2) of
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the Act, whereby the petitioner was specifically called upon to
produce the original deeds, the requirement of Section 33(4)
could be said to have been substantially complied with. Hence,
it was contended that the petitioner ought not to be permitted
to succeed on such a hyper-technical ground.
8. In view of the aforesaid pleadings, when the matter was
heard, the controversy before this Court was confined to a
very narrow compass. Learned Senior Advocate Mr. Shalin
Mehta, at the outset, referring to the three affidavits filed by
the respondents, submitted that, as the respondents have stated
on oath in their affidavit dated 20.07.2026 that as many as 19
documents relating to the reconstitution of the partnership firm
were impounded by the respondents on 05.06.2025 by
impounding the photocopies thereof, such action cannot be
said to be in consonance with the provisions of the Act, more
particularly, in view of the amended provisions of Sections
33(4) and 33(5) of the Act. He, therefore, submitted that,
keeping all the rights and contentions of the petitioner open,
the petitioner may be permitted to assail the impugned show-
cause notices only on the ground that the action of the
respondents in impounding the photocopies of the deeds of
reconstitution of the partnership firm on 05.06.2025 is in gross
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violation of the provisions of the amended Section 33 of the
Act. It was, therefore, submitted that any action initiated
under Section 39(1)(b) of the Act on the basis of such
impoundment of the photocopies of the documents cannot be
said to be a valid or lawful action. Consequently, the show-
cause notices dated 09.06.2025 and 20.03.2026 cannot be said
to be valid show-cause notices, and the entire proceedings
initiated on the basis thereof are, therefore, required to be
quashed and set aside.
8.1. Learned Senior Advocate Mr. Mehta submitted that, at
this juncture, the petitioner may be permitted to assail the
impugned show-cause notices only on this ground and, if the
aforesaid ground does not find favour with the Court, the
petitioner may be permitted to address the Court on the other
grounds as well. For the time being, however, he submitted
that the petitioner may be permitted to challenge the
impugned show-cause notices only on the issue as to whether,
even after the amendment to Section 33 of the Act, the
respondents could have impounded the photocopies of the
documents in question without following the mandatory
procedure prescribed under Section 33(4) of the Act.
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8.2. Learned Senior Advocate Mr. Shalin Mehta submitted that
the respondents themselves have admitted in their affidavit
that, pursuant to the show-cause notice issued by the
respondents on 11.11.2024, the petitioner had submitted the
photocopies of the documents in question on 09.12.2024. Thus,
the photocopies of the documents were already there in the
possession of the respondents on 09.12.2024. He submitted that
sub-sections (4) and (5) were inserted in Section 33 by way of
the Gujarat Stamp (Amendment) Act, 2025, dated 02.04.2025,
which was published vide notification dated 07.04.2025, and,
therefore, the amended provisions came into force with effect
from the date of their publication in the Official Gazette, i.e.
07.04.2025. Hence, on the date on which the amended
provisions came into force, the respondents already had the
photocopies of the documents in question in their possession.
8.3. Learned Senior Advocate Mr. Mehta submitted that
Section 33(4) provides that, where any deficiency in stamp
duty is noticed from a copy of an instrument, the Collector
may, suo motu, or on a reference from any Court or any
authority, or by any person in this behalf, call for the original
document for the purpose of satisfying himself as to the
adequacy of the duty paid thereon, and the instrument so
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produced before the Collector shall be deemed to have been
produced or to have come before him in the performance of
his functions.
8.4. Learned Senior Advocate Mr. Shalin Mehta submitted that
Section 33(5) provides for, and takes care of, a situation
where, despite a notice under Section 33(4) having been issued
to the concerned person, such person fails to produce the
original instrument within the period specified by the
Collector. In such a case, and only thereafter, the Collector can
impound the photocopy of the instrument/document.
8.5. By making the aforesaid submissions, learned Senior
Advocate Mr. Shalin Mehta submitted that Section 33(5) cannot
be read in isolation and that the powers thereunder cannot be
exercised independently unless the procedure prescribed under
Section 33(4) is first followed by the Collector. In the instant
case, there is an admission on the part of the respondents that
they had never issued any notice under Section 33(4) to the
present petitioner. Therefore, until and unless a notice under
Section 33(4) is issued to the petitioner calling upon him to
produce the original instrument, the respondents could not
have impounded the photocopy of the instrument, even if the
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photocopies were already available with them, in view of the
clear language of Sections 33(4) and 33(5) of the Act.
8.6. Learned Senior Advocate Mr. Shalin Mehta submitted that
Section 33 falls within Chapter IV of the Act, which bears the
title “Instruments Not Duly Stamped”, whereas Section 68 falls
within Chapter VIII, which deals with supplemental provisions.
He further submitted that the heading of Section 33 is
“Examination and impounding of instruments”, which indicates
that Section 33 is the specific provision governing the
examination and impounding of instruments. Therefore, unless
the powers under Section 33 are exercised in accordance with
the procedure prescribed therein, it is not open to the
authority to invoke the supplemental provisions under Section
68 of the Act.
8.7. Learned Senior Advocate Mr. Mehta submitted that
Section 68 deals with the power of the Collector to authorise
an officer to enter premises and inspect certain documents. He
further submitted that the language of Section 33(4) makes it
clear that, in accordance with the requirement thereof, the
Collector shall call for the original instrument for the purpose
of satisfying himself as to the adequacy of the duty paid
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thereon, whereas Section 68 provides for the Collector the
power to authorise an officer to enter the premises and inspect
certain documents.
8.8. Learned Senior Advocate Mr. Shalin Mehta submitted that
both the provisions are separate provisions, and that, until and
unless the procedure prescribed under Section 33 is followed,
it is not open to the Collector to exercise powers under Section
68 for the purpose of getting instruments for impoundment.
Learned Senior Advocate Mr. Shalin Mehta submitted that the
purpose behind Section 33(4) is to allow the Collector to
collect the original instrument for examination by calling upon
the concerned person to produce the same before the
authority. Thus, the language of Section 33 indicates that the
concerned person is required to produce the document before
the Collector, and the Collector is not required to step out of
his office to collect the original document from such person.
On the other hand, Section 68 confers upon the Collector the
power and authority to authorise an officer to enter the
premises and inspect certain documents. This, according to
learned Senior Advocate Mr. Shalin Mehta, itself indicates that
the power under Section 68 can be exercised where a person
fails or refuses to produce the original documents before the
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Collector. Therefore, for the purpose of impounding the
document, if the Collector does not even have the photocopy
of the original document, the Collector can authorize a person
to enter the premises to inspect the documents so as to
achieve the object of the Act.
8.9. Learned Senior Advocate Mr. Shalin Mehta further
submitted that, in the instant case, the respondents had never
issued any notice under Section 33 of the Act to the petitioner
and had straightaway issued a notice under Section 68(2) of
the Act, without providing the petitioner an opportunity to
produce the original documents before the authority. He,
therefore, submitted that, until and unless a notice under
Section 33(4) of the amended Act is issued to the concerned
person and the Collector comes to the conclusion that the
procedure prescribed under Section 33 has proved to be a
futile exercise or has not yielded any result, it is not open to
the Collector or the authority, as the case may be, to
straightaway invoke Section 68(2) of the Act. According to
learned Senior Advocate Mr. Shalin Mehta, no opportunity was
given to the petitioner to produce the original documents in
accordance with Section 33, which is the specific provision
governing the examination and impounding of instruments.
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8.10. Learned senior advocate Mr. Shalin Mehta, learned
Senior Advocate, therefore submitted that in absence of there
being any notice under Section 33(4) of the Act, both the
impugned notices, which are issued after the Act was amended
on 07.04.2025 by amending Section 33(4) and 33(5), the
authority was not justified in impounding the instrument on
the basis of photocopies of the instrument which were received
by the authority by exercising powers under Section 68(2) of
the Act, more particularly when the aforesaid instruments were
received by the authority prior to amendment of the Act, i.e.
on 09.12.2024. He, therefore, submitted that, once the
amended provisions came into force on 07.04.2025, it was
incumbent upon the authority to follow the procedure
prescribed under Section 33(4) and call upon the petitioner to
produce the original instruments and in event of failure only
on the part of petitioner to produce such documents, the
Collector either could have impounded the photocopies of the
instrument or could have resorted to his powers under Section
68 of the Act.
8.11. He, therefore, submitted that, in view of the fact that
the impugned show-cause notices do not refer to any
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impoundment of the documents and that the documents were
purportedly impounded by impounding their photocopies, such
impoundment cannot be said to be a valid impoundment of the
documents. He, therefore, submitted that both the impugned
show-cause notices are required to be quashed and set aside.
9. Learned AGP Mr. Nikunj Kanara, in response to the
aforesaid limited submission made by learned Senior Advocate
Mr. Shalin Mehta, submitted that the powers under Section 68
fall within the supplementary provisions of the Act. He
submitted that the powers conferred under Section 68 are
independent powers and have no connection with the exercise
of powers under Section 33. Therefore, according to the
learned AGP, having regard to the language of the Act, it
cannot be said that the powers under Section 68 cannot be
exercised unless and until the powers under Section 33 are first
exercised.
9.1. Learned AGP Mr. Kanara further submitted that the
powers under Section 68 are contained in Chapter VIII, which
bears the title “Supplemental Provisions”, and that such
powers can be exercised in addition to the specific powers
vested in the Collector under Section 33. He, therefore,
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submitted that, depending upon the facts and circumstances of
the case, it is open to the Collector to exercise either the
powers under Section 33 or those under Section 68 with a
view to ensuring that the object of the Act is achieved. He
further submitted that whether the photocopies were obtained
by the respondents in exercise of powers under Section 68(2)
or under Sections 33(4) and 33(5) would pale into
insignificance, as what is important is that the concerned
person is afforded an opportunity to produce the original
instrument before the Collector. He, therefore, submitted that,
when such an opportunity had already been afforded to the
present petitioner by issuing a notice under Section 68(2), the
petitioner could not raise a technical objection regarding the
alleged failure on the part of the respondents to exercise
powers under Section 33(4) by issuing a notice thereunder.
Accordingly, he submitted that the action of the respondents in
impounding the documents by impounding the photocopies of
the instruments could not be said to be illegal and, therefore,
such action would not render the impugned show-cause notices
illegal or invalid.
9.2. Learned AGP Mr. Kanara relied upon the decision of the
Hon’ble Supreme Court in the case of G.M. Shahul Hameed v.
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Jayanthi R. Hegde reported in 2024 (o) AIJEL SC 73782 and
submitted that mere technicalities cannot be permitted to
undermine the legislative intent and the fiscal interests of the
State. Relying upon the aforesaid judgment, learned AGP Mr.
Kanara prayed for dismissal of the present petition.
10. In rejoinder, learned Senior Advocate Mr. Shalin Mehta
submitted that, insofar as the decision in the case of G.M.
Shahul Hameed (supra), relied upon by the State, is concerned,
the same dealt with the admissibility of evidence. He drew the
attention of the Court to the substantial question of law
framed by the Hon’ble Supreme Court and submitted that the
substantial question before the Hon’ble Supreme Court was
whether, upon admission of an instrument in evidence and its
marking as an exhibit by a Court (despite the instrument being
chargeable to duty, but insufficiently stamped), such process
could be recalled by the Court in exercise of its inherent
powers saved under Section 151 of the Code of Civil
Procedure, for the ends of justice or to prevent abuse of the
process of the Court.
10.1 Learned Senior Advocate Mr. Mehta submitted that, as
the Hon’ble Supreme Court was examining the issue of
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admissibility of evidence, the aforesaid judgment is required to
be considered in that context. He, therefore, submitted that
what has been termed as a “technicality” by learned AGP Mr.
Kanara is, in fact, not a mere technicality, but a mandatory
requirement or duty cast upon the authority under the
provisions of the Act. He, therefore, submitted that the
judgment relied upon by learned AGP Mr. Kanara is not
applicable to the facts of the present case.
11. Though a compilation of judgments was initially
submitted to the Court by learned counsel for the petitioner,
along with a few other judgments, in view of the fact that
learned Senior Advocate Mr. Shalin Mehta, at this juncture,
confined his submissions only to the aforesaid issue as to
whether compliance with the procedure prescribed under
Section 33(4) is mandatory for exercising the power under
Section 33(5) of the Act for impounding the photocopy of an
instrument or not, and keeping all the rights and contentions
of the petitioner open at this stage, he did not rely upon any
other judgment.
12. Learned AGP Mr. Kanara also did not cite any other
judgment or make any other submission except those recorded
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herein-above, including the judgment referred to in the
foregoing paragraph.
13. I have heard learned counsels for the parties and perused
the record. For determination of the aforesaid issue, it would
be necessary to consider the language and provisions of
Sections 33 and 68 of the Act, which are reproduced
hereunder;
“ Section 33 - Examination and impounding of
instruments
(1) [Subject to the provision of section 32A, every
person] having by law or consent of parties authority to
receive evidence, and every person in charge of a public
office except an officer of police, before whom any
instrument, chargeable, in his opinion, with duty, is
produced or comes in the performance of his functions
shall if it appears to him that such instrument is not duly
stamped, impound the same.
(2) For that purpose every such person shall examine
very instrument so chargeable and so produced or coming
before him in order to ascertain whether it is stamped
with a stamp of the value and description required be
the law for the time being in force in the State when
such instrument was executed or first executed:
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Provided that-
(a) nothing herein contained shall be deemed to
require any Magistrate or Judge of a Criminal Court to
examine or impound, if he does not think fit so to do
any instrument coming before him in the course of any
proceeding other than a proceeding under Chapter XII or
Chapter XXXVI of the Code of Criminal Procedure, 1898
(V of 1898);
(b) in the case of a Judge of High Court, the duty
of examining and impounding any instrument under this
section may be delegated to such officer as the Court
may appoint in this behalf.
(3) For the purpose of this section, in cases of
doubt,-
(a) the State Government may determine what offices
shall be deemed to be public offices; and
(b) the State Government may determine who shall
be deemed to be persons in charge of public offices.
(4) Where deficiency in stamp duty is noticed from the
copy of an instrument, the Collector may suo motu or on
a reference from any Court or any Authority or by any
person in that behalf, the collector shall call for the
original instrument for the purpose of satisfying himself
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as to the adequacy of the duty paid thereon, and the
instrument so produced before the Collector shall be
deemed to have been produced, or come before him in
the performance of his functions.
(5) In case the instrument is not produced within the
period specified by the Collector, collector shall impound
the copy of instrument, he shall require the payment of
the proper duty or the amount required to make up the
same, together with penalty under Section 39(1)(b) on the
copy of the instrument.
Section 68 – [Collector's power to authorise officer
to enter premises and inspect certain documents
(1) The Collector may, where he has reason to
believe that all or any of the instruments specified in
Schedule I have not been charged at all or incorrectly
charged with duty leviable under this Act, authorise in
writing any officer to enter upon any premises where he
has reason to believe that any registers, books, records,
papers, documents, or proceedings relating to or in
connection with any such instruments (including such
instrument) are kept and to inspect them, and to take
such notes and extracts as such officer deems necessary,
and if necessary, to seize them and to impound them
under section 33.
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(2) Every person having in his custody or
(maintaining such instrument, registers), books, records,
papers, documents or proceedings shall, when so required
by the officer authorised under sub-section (1), produce
them before such officer and at all reasonable times
permit such officer to inspect them and take the notes
and extracts as he may deem necessary.
14. The question that arises for determination is, whether a
show-cause notices issued after the amendment to Section 33
of the Act, on the basis of the impoundment of photocopies of
the instruments/documents which had been obtained by the
authority prior to the said amendment in exercise of powers
under Section 68(2) of the Act, without following the
procedure prescribed under Sections 33(4) and 33(5) of the Act,
can that be said to be a valid show-cause notices; and whether
such impoundment of the photocopies of the
instruments/documents can be said to be a valid impoundment
of the instruments/documents or not.
15. To consider the aforesaid question, what is required to be
considered is the fact that the notice under Section 68(2) of
the Act was issued to the petitioner on 11.11.2024 and,
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pursuant to the aforesaid notice, the petitioner produced
photocopies of certain instruments/documents on 09.12.2024,
meaning thereby, prior to the amendment of the relevant
provisions of the Act by the notification dated 07.04.2025, the
authorities were already in possession of the photocopies of the
instruments/documents in question. Thereafter, the authority
impounded the same on 05.06.2025, taking the stand that,
once the petitioner had been issued a notice under Section
68(2) calling upon him to produce the original
documents/instruments, there was no requirement to issue a
notice under Section 33(4) of the Act before impounding the
photocopies of the documents in exercise of powers under
Section 33(5) of the Act.
16. To decide the issue on hand, if the situation prevailing
prior to 07.04.2025, i.e. prior to the amendment of Section 33
of the Act, is considered, the authorities were entitled to
impound only the original instrument, and any impoundment
of a photocopy of the instrument, could not be said to be a
valid impoundment of the document or instrument. Therefore,
with a view to ensuring that no person who had paid deficient
stamp duty could take undue advantage of the aforesaid
provisions of law, and more particularly Section 33 of the Act,
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Sections 33(4) and 33(5) were introduced by way of the
amendment notified on 07.04.2025. Section 33(4) empowers the
Collector or the authority to issue a notice thereunder and call
for the original instrument/document for which it is alleged, or
where the Collector or authority as the case may be has a
reason to believe, that the concerned person has paid less
stamp duty than what is required. Thus, in exercise of powers
under Section 33(4), the authority may call upon the concerned
person to produce the original instrument/document.
17. Section 33(5) takes care of a situation where, despite the
issuance of a notice under Section 33(4), the instrument is not
produced within the period specified by the Collector. In such
a situation, the Collector is empowered to impound the
photocopy of the original instrument, meaning thereby, the
language of Section 33(5) itself makes it clear that it is only
when the instrument/document is not produced within the
period specified by the Collector, in that case, the Collector
can proceed to impound the photocopy of the
instrument/document.
18. Section 33 is the first section of Chapter IV, which bears
the title “Instruments Not Duly Stamped”. Chapter IV deals
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with various situations and prescribes the procedure required
to be followed in certain situations or for doing certain things
in respect of instruments which are not duly stamped. Prior to
the amendment, when Section 33(4) was not in force, probably
Section 68 was the only provision under which, by invoking
the powers conferred thereunder, the Collector was empowered
to call upon a person to produce the original instrument.
However, after the amendment, Section 33(4) itself confers
upon the Collector the power to call for the original
instrument within the period specified in the notice. Therefore,
when the Collector exercised the powers under Section 33(5)
and proceeded to impound the photocopies of the instruments
on 05.06.2025, the Collector or the authority, as the case may
be, ought not to have resorted to the powers already exercised
under Section 68(2) of the Act during the pre-amendment era,
and by virtue of exercising those powers, the authority had
already obtained the photocopies of the instrument/document.
19. When the authority was exercising the powers under the
amended provisions of Section 33, it was expected and
incumbent upon the authority to follow the procedure
prescribed under Section 33 for the purpose of impounding the
photocopies of the instruments. It is only in the event that a
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person fails to comply with the requirement of a notice issued
under Section 33(4) to produce the original instrument before
the Collector, then only the Collector can proceed to impound
the photocopy of the original instrument in exercise of powers
under Section 33(5). In the instant case, the stand taken by the
respondents themselves indicates that no notice under Section
33(4) was ever issued to the petitioner calling upon him to
produce the original documents/instruments in terms thereof.
Therefore, when the petitioner was never afforded an
opportunity to produce the original documents under Section
33(4), the authority could not have straightaway exercised the
powers under Section 33(5) and impounded the photocopies of
the instruments/documents.
20. I have reason to say so the aforesaid view because
Section 68 confers powers upon the Collector under Chapter
VIII, which bears the title “Supplemental Provisions”, whereas
Chapter IV deals with “Instruments Not Duly Stamped”, and
Section 33 is the specific provision dealing with the
examination and impounding of instruments. Therefore, a
person who receives the notice from the respondents, if such
notice is received by him under Section 33 and more
particularly under Section 33(4) considering the amended
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provision of the Act, the moment a person receives the notice
under Section 33(4), he would realize that the aforesaid notice
is issued for the purpose of examining and, if necessary,
impounding the instrument. In case, if such person fails to
produce the original instrument within the period specified in
the notice issued under Section 33(4), the Collector or the
authority, as the case may be, would still have the power to
impound the photocopy of the instrument under Section 33(5).
Thus, a notice under Section 33(4) conveys a clear indication
to the recipient that the intention of the authority is to
examine and, if necessary, impound the instrument/document.
With such clarity, the concerned person may either choose to
produce the original instrument/document before the authority
or may avail of such appropriate remedy as may be available
to him in law against such notice.
21. Whereas, if a notice is issued under Section 68 of the
Act, such notice cannot be presumed to be a notice which
would carry the proceedings further and ultimately culminate
in the impounding of the document, since such provision falls
within the Chapter relating to “Supplemental Provisions”.
Section 68 specifically deals with the power of the Collector to
authorise an officer to enter the premises and inspect certain
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documents, meaning thereby, when the Collector exercises
powers under Section 68, the Collector does not, at that stage,
have the relevant documents in his possession, whether
original or photocopies thereof. The inspection of the document
also can be undertaken only either upon the documents are
provided to the Collector or Collector chooses to enter the
premises, may be forcibly or without the will and wish of the
concerned person. It is only upon inspection of the
instrument/document that the Collector may come to know
that an instrument/document is not duly stamped and may
thereafter choose to exercise the powers under Section 33,
because the language of Section 33(1) is clear that every
person in charge of a public office, except an officer of the
police, before whom any instrument, chargeable, in his
opinion, with duty is produced or comes in the performance of
his functions, shall, if it appears to him that such instrument is
not duly stamped, impound the same.
22. Section 33(1) requires the officer to first form an opinion
as to the insufficiency of the stamp duty and, thereafter, to
proceed in accordance with law for the purpose of impounding
the instrument. Section 68 empowers the Collector to call for
the documents, including by authorising an officer to enter the
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premises where such documents are kept. Once such an
opinion is formed, the unamended provision of Section 33
contemplated the impounding of the original instrument. But
subsequently, as Section 33(4) and Section 33(5) were
amended, now post-amendment, the officer can even impound
the photocopy of the instrument/document. But such action
cannot be taken without disclosing intention to impound the
document, and a person would know about such intention only
if he is served with a notice under Section 33. Because only
upon receiving a notice under Section 33(4), the concerned
person would come to know about the intention of the
authority that even if that person chooses to retain the original
documents with him, the authority can still impound the
document/instrument by exercising powers under Section 33(5)
and can impound the photocopy. Therefore, Section 33(4)
shows the intention of the authority to impound the document
and puts such person on guard that in case if the documents
called for by way of notice under Section 33(4) is not provided
in original, authority still can impound the photocopy of the
document. Therefore, issuance of notice under Section 33(4) is
a condition precedent for exercising powers under Section 33(5)
and thereby impounding the photocopy of the instrument.
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23. In the instant case, as the respondents did not issue any
notice under Section 33(4) to the petitioner and proceeded to
impound the photocopies of the instruments/documents by
relying upon the notice issued under Section 68(2), such action
on the part of the authority cannot be considered to be legal
or valid. Consequently, the action of the respondents in
impounding the photocopies of the instruments in exercise of
powers under Section 33(5), without first issuing a notice
under Section 33(4), renders the impoundment of the
photocopies of the instruments invalid and illegal.
Consequently, the notice issued under Section 39(1)(b), being
founded upon such invalid impoundment of the photocopies of
the instruments, cannot also be sustained in law. Hence, both
the impugned notices dated 09.06.2025 and 20.03.2026 are
held to be invalid and illegal.
24. As regards the decision in case of G.M. Shahul Hameed
(supra) relied upon by the respondents is concerned, the
aforesaid judgment dealt with the issue of admissibility and
exhibiting of a document/instrument. Since the subject matter
and the issue arising for consideration in the present petition
are entirely different, the reliance placed by the respondents
upon the aforesaid judgment is misplaced. Moreover, having
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C/SCA/8957/2026 (GJHC240473042026) CAV JUDGMENT DATED: 02/09/2026
regard to the materially different facts and circumstances of
the present case, the said judgment is not applicable to the
facts of the case.
25. Resultantly, in view of the aforesaid discussion, both the
impugned notices dated 09.06.2025 and 20.03.2026 are
required to be quashed and set aside, and are accordingly
quashed and set aside. The petition is accordingly allowed.
Rule is made absolute.
(NIRZAR S. DESAI,J)
BHAVIN MEHTA
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