Report No. 67
18.21. Section 43.- No change is needed in section 43.
18.22. Section 44-Persons paying duty or penalty may recover same in certain cases.-
Under section 44(1), when any duty or penalty has been paid under section 35, section 37, section 40 or section 41, by any person in respect of an instrument, and, by agreement or under the provisions of section 29, or any other enactment in force at the time such instrument was executed, some other person was bound to bear the expense of providing the proper stamp for such instrument, the first-mentioned person shall be entitled to recover from such other person the amount of the duty or penalty so paid. Sub-section (2) provides that for the purposes of such recovery, any certificate granted in respect of such instrument under this Act shall be conclusive evidence of the matters therein certified. According to sub-section (3), such amount may, if the Court thinks fit, be included in any order as to costs in any suit or proceeding to which such persons are parties and in which such instrument has been tendered in evidence. If the Court does not include the amount in such order, no further proceedings for the recovery of the amount shall be maintainable.
18.23. Section 44-Changes in.-
(a) In view of the proposed re-numbering of sections 41 and 42, consequential changes should be made1 in section 44(1);
(b) In section 44(3), second sentence, (power to include costs), it is desirable to add the words "for reasons to be recorded", before the words "include the amount in such order".
We recommend that section 44 should be amended as above.
1. See discussion as to sections 41 and 42, supra.
18.24. Section 45-Power of Revenue authority to refund penalty or excess duty in certain cases.-
Section 45 reads-
"45.(1) Where any penalty is paid under section 35 or section 40, the Chief Controlling Revenue-authority may, upon application in writing made within one year from the date of the payment, refund such penalty wholly or in part.
(2) Where, in the opinion of the Chief Controlling Revenue authority, stamp-duty in excess of that which is legally chargeable has been charged and paid under section 35 or section 40, such authority may, upon application in writing made within three months of the order charging the same, refund the excess."
In section 45(2), we recommend the substitution of "one year" for "three months". The period should be uniform under both the sub-sections.
18.26. Section 46.- We have already considered1 section 46.
1. See Section 38A, supra.
18.27. Section 47-Power of payer to stamp bills, and promissory notes received by him unstamped-Recommendation.-
Under section 47, when any bill of exchange or promissory note chargeable with a duty not exceeding ten naye paise is presented for payment unstamped, the person to whom it is so presented, may affix thereto the necessary adhesive stamp, and, upon cancelling the same "in manner hereinbefore provided," may pay the sum payable upon such bill or note, and may charge the duty against the person who ought to have paid the same, or deduct it from the sum payable as aforesaid, and such bill or not shall, so far as respects the duty, be deemed good and valid. Under the proviso, the section shall not relieve any person from any penalty or proceeding to which he may be liable in relation to such bill. We recommend that in section 47, the word "the" should be added before the word "manner".