ISSUE V : Real estate market has an eye on stamp duty

Introduction

Stamp duty is a form of tax that is imposed on instruments1 by which right or liability is or purports to be created, transferred, limited, extended, extinguished or record (“Instrument”). In order to assert the legal validity of an Instrument, traditionally, a physical stamp is affixed to the Instrument. The payment of stamp duty is essential for a legal claim to become functional. The amount of stamp duty to be paid in an Instrument depends on the appraised market value of the property and adjudication.2 Stamp Act 1899 (the “Act”) governs the stamp duty valuation for property transactions. Specifically, in the state of Tamil Nadu, the registration department generates huge revenue in the form of stamp duty and registration fees3 . This is owing to the liberal policies of the Tamil Nadu government which has seen number of automobile companies and IT companies finding their way to Tamil Nadu and causing a corresponding boom in the real estate sector.

While allocating funds for investment it becomes equally important to consider the percentage to be deposited with the government in the form of stamp duty. This bulletin deals with stamp duty prevalent in Tamil Nadu and various aspects of the stamp and registration laws that impact the real estate sector of the state.

1.0 Stamp duty

The Act is applicable to all states including Tamil Nadu which do not possess specific state legislation; however, states like Maharashtra, Karnataka, Gujarat, Rajasthan are some of the states which have their own state legislation stamp duty is levied on the Instrument and not the transaction per se but it would be interesting to note that the Act nowhere define the term stamp duty. State government has powers to fix stamp duties on all documents except bill of exchange, cheques, etc. Rates prescribed by state government will prevail in that state. State government can make law for other aspects of stamp duty also (i.e. matters other than quantum of duty). However, if there is conflict between State law and Union law, the Union law prevails.

Any Instrument bearing an adhesive or impressed stamp of not less than the proper amount in accordance with the law time being in force is said to be duly stamped. Schedule I of the Act lays down the amount charged in the form of stamp duty. Also, the stamps have to be effectively cancelled so that they cannot be used again. Similarly, impressed stamps have to be written in such a way so that it cannot be used for other instrument and the stamp appears at the face of instrument. If stamp is not cancelled, the instrument is treated as unstamped. Similarly, if the stamp duty paid is not adequate, the instrument is treated as not duly stamped. Interestingly, an instrument not duly stamped is not a void instrument under the Act4 and is only inadmissible as evidence. An objection as to an instrument not being duly stamped must be taken at the trial when the instrument is first tendered in evidence. It is the duty of court to refuse to admit an Instrument not duly stamped, whether or not the parties object to its admission.

2.0 Levy of stamp duty

Stamp duty is leviable according to the nature of the instrument and its contents. Recently, the Delhi High Court while delivering its judgment in the matter of Delhi Towers Ltd v. G.N.C.T. Of Delhi (Date of decision: December 2009), has held that even in the absence of specific entry for such orders in the stamp duty schedule, the Court Orders are covered within the ambit of the definition of ‘conveyance’, which has a wide meaning and is not confined to specific instruments mentioned in the stamp duty schedule.

Instrument are chargeable with the payment of stamp duty at the time of execution5 or before the execution of the Instrument by way of adhesive stamps or impressed stamps available with the stamp vendors licensed by the state government. The payment of stamp duty on any instrument is made by way of demand draft or treasury challan to procure stamp papers with the stamp of the requisite amount either embossed or engraved on it. The general rule is that that the instrument should be written on the stamp paper but plain paper is used in the instances when the whole agreement cannot be printed on the stamp paper. As per the revenue department policy6 there is a proposal for implementing e-stamping for collection of stamps to reduce the time taken in procuring the stamp papers, the success of which can be judged only after the implementation.

In Tamil Nadu, apart from stamp duty, a surcharge in the form of transfer duty7 levied on the instrument effecting transfer of immovable property such as sale, exchange, gift, mortgage with possession and lease in perpetuity. The pattern of levy of transfer duty is the same as stamp duty and currently8 2% is charged as transfer duty on the instrument. The document may be presented for registration within four months of the execution of the instrument with the sub-registrar in whose jurisdiction the property lies. Stamp duty is the first step and registration is the last step in order to call a transaction complete.

Registration does not confer title on the property but only acts as a conclusive proof of the title vested on the property. Those instruments brought before the collector and found to be inappropriately stamped can be impounded by the collector and be asked to pay the balance amount along with penalty. Under the court of law only documents duly stamped are accepted as evidence.9

3. Stamp duty on Instruments

3.1 Conveyance on sale

Conveyance of sale refers to Instruments whereby the property whether movable or immovable gets transferred along with all the right vested in the property. Conveyance on sale is chargeable at the rate of 6%10 on the market value of the property. Market value means the price which the property may fetch if sold in the open market on the date of execution of the Instrument. This concept was initiated after the enactment of the Tamil Nadu Act, 1964 in order to prevent the undervaluation of property and its corresponding rules were also framed11. For the ease of calculation, a valuation committee was constituted to determine the market value of the property situated in Tamil Nadu and the guiding values for the entire state was published on the website12 of the revenue department. Government has framed the Tamil Nadu Stamp (Constitution of Valuation Committee for Estimation Publication and Revision of Market Value Guidelines for Properties) Rules, 201013 wherein the guidelines and the time frame for calculation of the market value have been laid down. This market value is evaluated annually.

3.2 Lease

Lease of immovable property means transfer of right to enjoy property for a certain time in consideration of price paid or promised to pay periodically in the form of rent by person taking the property on lease. Stamp duty for lease is determined on the basis of period of lease granted. Where the period of lease is for a term more than five years stamp duty is a charged as conveyance on the annual rent or market value of the property as the case may be.

3.3 Power of attorney

Power of attorney (“POA”) means any instrument empowering a specified person to act for and in the name of the persons executing it. Registration of the power of attorney is optional but since the POA is a blanket document and is prone to misuse very easily. A fairly strict approach is taken these days by the registering officers while handling matters of POA. Circular14 was issued to clarify on the issues for POA insisting on compulsory registration be done and full details of the property to be given in case of a general POA. These practices ensure that the same person shall not authorize more than one person as authorized agent. Stamp duty for POA would depend on the number of persons in whose favour the instrument has been executed and the powers vested by way of the instrument. Where the POA grants a blanket power to do any act with regard to the property, it shall be treated as a Conveyance for sale.

3.4 Release and Partition

The properties may also be transferred by way of release of rights under a property either the release of benami rights or release of rights in favour of co-owners or even release of rights in favour of partner. The stamp duty shall be dependant on the property value. Similarly by way of an Instrument of Partition the co-owners of any property may divide or agree to divide the property severally and the stamp duty shall be depend on the value of the separate share.

Conclusion

The stamp duty can bring considerable difference in the cost factor while purchasing a real estate property. The above article gives an overview of the commonly executed documents attracting stamp duty. There could be innumerable names given to an agreement executed. Any agreement which tends to transfer rights in the property or create rights shall attract stamp duty even if the title of the agreement does not place in the charging schedule of the Act. The registration authority shall look at the essence of the agreement transacted and not only the title. Few provisions of the Act have become obsolete in the economic scenario prevalent in the country. Finance ministry too has suggested a new act and has circulated it for comments from the states. But the real estate sector would have to keep an eye on the stand of the government in implementation of the stamp duty.

Authored by: Srividya T.S.

1 Defined under section 2(14) of the Act.

2 The process that determines the value of stamp duty to be paid, based on property value evaluation by the stamp duty authorities.

3 As per the commercial taxes and registration department of Tamil Nadu, stamp and registration policy note 2010-11 available on the website http://www.tn.gov.in (visited on March 04, 2011).

4 Under section 35 of the Act.

5 Execution of an instrument under the Act means signed as per section 2 (12) of the Act.

6 As per the commercial and registration department policy note 2010-2011 available on their website http://www.tn.gov.in.

7 Under the provisions of Chennai City Municipal corporation Act 1919, Tamil Nadu Panchayats act 1958 and Tamil Nadu District Municipalities Act 1920.

8 As per the Government order dated November 20, 2003 abstract available on http://www.tn.gov.in.

9 As per section 35 of the Act.

10 As per article 23 of the Act and amended by the Government order dated November 20, 2003.

11 Tamil Nadu is governed by Tamil Nadu Stamp (Prevention of under valuation of instruments) Rules 1968.

12 www.tnreginet.net for calculation of the stamp duty.

13 Notified by way of Tamil Nadu Government Gazette dated June 06, 2010 available on http://www.tniuscbe.org.

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