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Report No. 67

36.7. Article applicable even to copies of instruments not creating rights.-

There are two exemptions. Their details are not material for the comments that we are going to make on the article. But we may note that Exemption (b) under the article exempts, from duty, copies of registers of births and deaths-which are all documents which do not create a right or liability. This exemption itself shows that in other respects the article is wide, as stated above.1

1. Para. 36.6, supra.

36.8. Amendment required as to portion referring to "public officer".-

We shall first dispose of a minor point. We may point out that with reference to the expression "public officer", which is used in the article but not defined in the Act, the absence of a definition was regretted by Edge C.J.1 who observed

"a fiscal Act, which imposes the payment of duty on the subject, ought to contain definitions of all terms which have to be considered in apply the Act and which are not accepted as well recognised terms of universal application."

He pointed out (by way of example), that under the Indian Penal Code,2 apparently, the Secretary of a Municipal Board would be a "public servant" but he would not be a "public officer" according to the term as defined in the Code of Civil Procedure.3 Referring to sections 74, 76 and 78 of the Indian Evidence Act, 1872, he held that the record of the proceedings of a Municipal Board is a "public document" and the officer who is authorised by the ordinary course of his official duties to give copies of public documents, is, for these purposes, a "public officer". Hence, a copy of an order passed by a Municipal Board on a petition presented to it, certified as a true copy by the Secretary to the Board, came within Article 24, and required to be stamped. This particular difficulty will not survive if our recommendation to insert a definition of "public officer" is accepted.

1. Reference, 1897 ILR 19 All 293 (294).

2. Section 21, Indian Penal Code.

3. Section 2(17), Code of Civil Procedure, 1882.

36.9. No duty on copies in England.-

It may, incidentally, be noted that in England, the entries in the Schedule to the Stamp Act, 1891 relating to copies and extracts were repealed in 1949.1

1. The Finance Act, 1949, sections 35 and 52(1), and Eighth Schedule, Part I, entry 12, and Eleventh Schedule; Monroe Stamp Duties, (1964), pp. 261-262.

36.10. Recommendation to add reference to section 76, Evidence Act.-

In one respect, it is still desirable to define the scope of the article more precisely than at present. Certified copies of public documents are issued under section 76. Evidence Act, and that is the principal provision of significance for the purposes of Article 24. We therefore, recommend that after the words "public officer", the words and figures "under section 76 of the Indian Evidence Act, 1872" should be added in this article; the Stamp Act will then be brought into harmony with the Evidence Act. We are separately recommending the insertion1 of a definition of "public officer", but an amendment is also needed in Article 24, as suggested above.

1. See discussion as to section 2, definition of "public officer" (new).

36.11. Amendment required where original is required.-

Another point relevant to this article raises certain issues of substance. At present, duty is leviable on a certified copy or extract given by a public officer, even if the original was not chargeable with duty, by virtue of Article 24(i). The rationale of charging duty on such copies is not readily understandable. No doubt, taxing provisions are meant to collect revenue, and one cannot always find their rationale. But, in this case, the provision obviously causes hardship and inconvenience. If, for example, a student seeking admission to a college gets copies of his academic diplomas certified by a public officer, the copies so certified would become chargeable with stamp duty on a literal reading of the article.

Again, where copies of miscellaneous correspondence in a pending case are certified, each of them becomes chargeable, thus making their use in a proposed litigation costly. Even copies issued for private use, or for private record, become chargeable. This causes considerable hardship. We are of the view that this is a situation where the considerations of revenue should yield to those of convenience, and there should be no duty on a copy if the original is not chargeable.

36.12. Recommendation as to charging portion.-

In the light of the above discussion, we recommend that the charging portion in Article 24(i) and (ii) should be revised, so as to read as follows:-

(i) if the original was chargeable with a duty not exceeding one rupee.

Fifty paise.

(ii) if the original was chargeable with a duty exceeding one rupee.

One rupee.

Exemption

(a) if the original was not chargeable with duty.

(Other Exemptions as at present, after suitable re-lettering).

We may mention that the suggested amendment has been favoured by most of the replies to our Questionnaire.1

1. Question 88 (Article 24).

36.13. Article 25-Counterpart or Duplicate.-

Article 25 deals with the counterpart or duplicate of an instrument. This is of particular importance to leases. A lease is generally prepared in two identical forms, called the lease and the counterpart respectively. The lease is executed by the lessor alone, and the counterpart is executed by the lessee alone, then, the lease and the counterpart are exchanged. Sometimes, the lease is in duplicate. The counterpart or duplicate is chargeable with duty if the original is chargeable with duty. Where the proper duty has not been paid on the original, the intention of the law is that the counterpart itself should bear duty.

Where Article 25 applies, the counterpart which is stamped under the article would not be admitted in evidence, unless the original is produced to show that it was duly stamped or the Collector certifies1 the duty paid on the original. In this article, the exemption relating to the counterpart of a lease granted to a cultivator which is itself exempt from duty2 is, strictly speaking, redundant, because the Article itself would apply only if the original is chargeable with duty. However, the exemption is harmless, and need not be disturbed.

1. Section 16.

2. Article 35, Exemption (a), as to leases to cultivators.



Indian Stamp Act, 1899 Back




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