TaxTMI 
TaxTMI 
2025 (12) TMI 1605
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..... Four separate loan agreements were executed on 22nd December, 2017 for Rs.200 Crores, 28th February, 2018 for Rs.145 Crores, 26th June, 2018 for Rs.160 Crores and 12th September, 2018 for Rs.120 Crores aggregating to Rs 625,00,00,000/-. 4. The loan agreements mandated creation of mortgage to secure the fulfillment of the obligations including payment of the dues under the loan agreement. A draft of single mortgage deed was lodged for adjudication of stamp duty under Section 31 of the Maharashtra Stamp Act, 1958 (for short, "Stamp Act"). Vide interim order dated 6th October, 2018, the Collector of Stamps adjudicated the stamp duty of Rs.10,01,100/- as due and payable with respect to the mortgage deed, which order was confirmed by order dated 11th October, 2018. Pursuant thereto, the Petitioner paid the stamp duty of Rs.10,01,100/- on 12th October, 2018 and executed the deed of mortgage dated 12th October, 2018 in favour of Indiabulls. 5. Subsequently an audit objection was raised as regards deficit stamp duty leading to issuance of communication dated 27th October, 2020 by the Respondent No 3 calling upon the Petitioner to pay the deficit stamp duty. In response, the Petitio....
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....ts that Section 4 would apply in this case as several loan instruments were employed for the purpose of completing the transaction i.e. execution of the mortgage deed. He would rely on the following decisions: (i) The Member, Board of Revenue v. Arthur Paul Benthall [AIR 1956 SC 35] (ii) Shyamsundar Radheshyam Agrawal and Anr. v. Pushabai Nilakanth Patil and Ors. [(2024) 10 SCC 324] (iii) Joint District Registrar (Class-I) and Collector of Stamps, Nagpur and Anr. v. Jaika Automobiles Pvt.Ltd., Nagpur [2020(4), Mh. L.J. 772] 8. Ms. Bane, Learned AGP would submit that the impugned order takes into consideration that there are four different transactions and five documents are executed i.e. four loan agreements and one mortgage deed. She submits that the issues framed by the authority were as regards applicability of Section 4 or Section 5 of the Stamp Act and after considering that the single mortgage deed covered four different loan transactions, where the amounts were different as well as the purpose for which they were obtained were different and the borrowers therein were also different, the authority has rightly considered the instrument to be charg....
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....), He submits that a similar course be adopted by this Court and matter be remanded. 14. Learned AGP would submit that remand is unnecessary by pointing out that the authority has construed the various clauses of loan documents and mortgage deed and has come to a definite finding of the mortgage instrument covering distinct transactions. 15. The undisputed facts are that the Petitioner had entered into four loan agreements with Indiabulls Housing Finance Limited on different dates i.e. 22nd December, 2017, 28th February, 2018, 26th June, 2018 and 12th September, 2018. To secure the repayment of the loans under the separate four loan agreements, the draft of single mortgage deed was lodged for adjudication in month of September, 2018 under Section 31 of the Stamp Act. The adjudicating authority adjudicated the stamp duty at Rs 10,01,100/ under Article 40(b) of Schedule I of the Stamp Act, to which audit objection was raised for deficit stamp duty. 16. The core issue which arises for determination is whether the mortgage deed constituted an instrument relating to several distinct matters/transactions or an instrument dealing with multiple documents used for one single transa....
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....ees Two Hundred Crores only). June 26, 2018 Indiabulls Housing Finance Limited Name: M/s Sheth Creators Private Limited Constitution: Company Registered Office Address: 12th Floor, Hallmaark Business Plaza, Sant Dyaneshwar -Marg, Near Gurunanak Hospital, Bandra - East Mumbai-400051 Corporate identity number: U7010MH2011PTC212674 Permanant Account number: AAPCS2976M Name: M/s. Neepa Real Estate Private Limited Constitution:Company Registered Office Address: 1201, 1203 and 1204, Hallmark Business Plaza, Sant Dyaneshwar -Marg, Opp Gurunanak Hospital, Kalanagar, Bandra (East), Mumbai-400 051 Corporate identity number: U45200MH1992PTC070103 Permanant Account number: AAACN1884C Upto Rs.160,00,00,0 00/- (Rupees One Hundred Sixty Crores only). 12th September, 2018 Indiabulls Housing Finance Limited Name: M/s. Neepa Real Estate Private Limited Constitution: Private Limited Company Registered Office Address: 1201, 1203 and 1204, Hallmark Business Plaza, Sant Dyaneshwar -Marg, Opp Gurunanak Hospital, Kalanagar, Bandra (East), Mumbai-400 051 Corporate identity number: U45200MH1992PTC070103 Permanant Account number: AAACN1884C Not Appl....
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.... loan agreement, which shows that individual loan agreement required individual creation of mortgage. It is not the case of single loan agreement sanctioning disbursement of the aggregate loan of Rs 625 crores and the release of the funds in tranches. 23. The Petitioner executed a single mortgage deed for securing the repayment of the loan advanced under the four loan agreements and lodged the same for adjudication. The adjudicating authority adjudicated the indenture under Article 40(b) of Schedule I of the Stamp Act noting that in pursuance to the loan granted, the borrower as security for repayment of the said debt amount is executing the deed of mortgage as security for repayment of the loan amount disbursed by the loan agreement. The adjudicating authority treated the mortgage deed as creation of security to secure single loan transaction and accordingly adjudicated the stamp duty without noticing that the mortgage deed embraced several loan transactions. It further took into consideration the indemnity bonds for the purpose of Section 6 of Stamp Act which was inapplicable as Section 6 deals with a case of single transaction which might be viewed as falling under various ca....
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.... several distinct matters or transactions are embodied in a single instrument. Where Section 5 applies, each of the instruments dealing with each of the matter would be chargeable under the Stamp Act by the aggregate amount of stamp duty in respect of all such instruments. 27. At this juncture, it would be apposite to refer to the decision of Hon'ble Apex Court in the case of Coastal Gujarat Power Limited and Ors. (supra). In that case, the respondent-company has secured assistance from thirteen different lenders to form the consortium as a trust and executed a security trustee agreement inter se appointing one banker as the lead trustee for the security trustee. The Respondent executed an indenture of mortgage with the security trustee mortgaging its assets as mentioned in the deed itself which was presented for registration. The High Court held that there being only one instrument creating a mortgage in favour of security trustee, such relation is independent of the relationship between the borrower and the lending banks. The Hon'ble Apex Court noted that the borrower had requested thirteen lenders to make available the loan to the borrower and pursuant to the loan agreement e....
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....f the Hon'ble Apex Court in the case of Coastal Gujarat Power Limited and Ors (supra). The Constitution Bench of the Hon'ble Apex Court in the case of Coastal Gujarat Power Limited and Ors. (supra) has held that the expression "distinct matters" is different from the expression "different categories" and even if two transactions are of the same description, the two transactions can be construed as "distinct matters". The amendment gave a legislative effect to the decision of the Apex Court in the case of Coastal Gujarat Power Limited and Ors. (supra). 30. Applying the law laid down by the Hon'ble Apex Court to the facts in hand, each of the loan instrument required execution of mortgage deed at or before the execution of the loan agreement and constituted a default in case of failure. The clear arrangement was therefore of execution of mortgage deed in respect of each individual loan instrument. If the condition would have been complied with, the Petitioner would have executed four separate mortgage deeds to secure the financial assistance availed under the four loan instruments. Despite the existence of such specific condition, the Petitioner has executed a single mortgage deed....