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Allahabad High Court · body

2007 DIGILAW 1870 (ALL)

ADARSH KUMAR v. STATE OF UTTAR PRADESH

2007-07-13

ARUN TANDON

body2007
( 1 ) PETITIONERS, Adarsh Kumar and others made an application under Section 31 of the Indian Stamp Act for determination of the value of the property, which was to be subject matter of transfer, and for determination of the stamp duty payable accordingly. ( 2 ) ACCORDING to the petitioner the Sub-Registrar on 22-7-2007 submitted a valuation report in respect of the land as well as the stamp duty payable thereon, which was fixed at Rs. 86,300/ -. After such determination, the report was placed before the collector Stamp, who vide order dated 26-7-2007 directed the Sub-Registrar to communicate the decision so taken qua the stamp duty payable on the transaction under Section 31 of the Act. ( 3 ) AFTER such determination a sale-deed in respect of the property in question was registered on 9-8-2004 and stamp duty of rs. 83,600/- was paid in respect thereto with reference to valuation report referred above. On the strength of the sale-deed, mutation in the revenue record is also alleged to have been taken place. The petitioner after such execution of the sale-deed on 10-2 2005 made an application for the land being declared as Abadi under Section 143 of the U. P. Z. A. and L. R. Act. The application so made by the petitioners was allowed and a declaration qua the change of the user of the land dated 20-5-2005 has been issued. ( 4 ) SINCE the petitioners wanted to set up a petrol pump on the land. The neighbouring plot holders filed a complaint before the collector stating therein that the stamp duty has not been paid on the instrument of sale in accordance with law. On the aforesaid complaint, Collector Mahoba required the tehsildar to hold an enquiry. The Tehsildar submitted his report on 14-2-2006 and opined that the stamp duty has rightly been paid on the sale-deed. ( 5 ) THE Collector Stamp, however, required the Sub-Registrar to submit a fresh report, who on 18-3-2006 submitted his report and pointed out that petrol pump has already been constructed and was standing on the land in question. The fact qua the potential of the land was suppressed at the time of registration of the sale-deed. Hence there was a deficiency in the stamp duty paid. Accordingly, a reference was made. The Collector, Stamp issued a notice under Section 47-A/33 of the Act dated 20-3-2006. The fact qua the potential of the land was suppressed at the time of registration of the sale-deed. Hence there was a deficiency in the stamp duty paid. Accordingly, a reference was made. The Collector, Stamp issued a notice under Section 47-A/33 of the Act dated 20-3-2006. Petitioners filed their objections dated 4-4-2006 stating therein that the stamp duty has been paid as per the adjudication of the stamp duty under Section 31 of the Act and therefore proceedings on the strength of alleged deficiency are not maintainable and are liable to be dropped. ( 6 ) AGAINST the notice the petitioners filed writ Petition No. 22793 of 2006, wherein an interim stay order was granted. However, ultimately the writ petition was dismissed on the ground of availability of statutory appeal under Section 56-A of the Stamp Act. ( 7 ) THE Collector, Stamp vide order dated 24-4-2006 held that the land purchased by the petitioners had commercial potential on the date it purchased and therefore the petitioner was liable to pay stamp duty at the rate applicable to area having commercial value. Accordingly, a demand of Rs. 33,80,300/- along with the fine of like amount has been raised against the petitioners. The total amount demanded has been fixed at Rs. 67,60,600/ -. ( 8 ) FEELING aggrieved by the order of the additional District Magistrate (Finance and revenue), the petitioner filed an appeal under Section 56-A of the Indian Stamp Act before the Chief Controlling Revenue Authority, U. P. , Allahabad, being Stamp Appeal No. 77/2006-07. The appeal has been dismissed vide judgment and order dated 9-3-2007. It is against these two orders that the present writ petition has been filed. ( 9 ) ON behalf of the petitioner it is contended that once adjudication has been done under Section 31 of the Indian Stamp Act qua valuation of the property and stamp duty payable and further since the petitioners have acted upon the same by depositing the stamp duty, as calculated, no proceedings under Section 47-A/33 of the Stamp act would be maintainable. It is stated that on the date the land was purchased, it was meant for agricultural purposes and subsequent change in the user of land, for establishing the retail out let, cannot be the basis for demand of additional stamp duty treating the land as having commercial potential. It is stated that on the date the land was purchased, it was meant for agricultural purposes and subsequent change in the user of land, for establishing the retail out let, cannot be the basis for demand of additional stamp duty treating the land as having commercial potential. Reliance has been placed upon the judgments reported in 1991 (2) ARC 364, 2006 (2) AWC 1492 : (2006 (1) ALJ 711) and 2007 (102) RD 842 : (2007 (4) ALJ 98 ). ( 10 ) I have heard counsel for the parties and have gone through the records of the writ petition. ( 11 ) SO far as the determination of the value of the land and stamp duty payable under Section 31 of the Stamp Act is concerned, suffice is to refer to the findings of the Additional District Magistrate (Finance and Revenue) as per his order dated 24-4-2006. It has been recorded that along with application for valuation of the property and stamp duty payable no instrument was presented and further that the application had only been submitted for the purposes of creating an evidence by the petitioner in his favour. It has been recorded that the application was initially presented before the additional District Magistrate, who marked the same to the Stamp Clerk on 31-5-2004. The application was not presented before the stamp Clerk by the petitioner, on the contrary was retained by him. ( 12 ) AFTER the Additional District Magistrate was transferred and a new incumbent joined, a note was obtained to the effect that sub-Registrar may submit the valuation report. The Sub-Registrar submitted his valuation report on which the Additional District Magistrate made a note that he may inform at his own level. The order of the additional District Magistrate reads as follows : "sub-Registrar (Vernacular Matter Omitted. . . . . Ed.)ADM" ( 13 ) THEREAFTER the deed was presented and the Sub-Registrar got the same registered without the same being ever presented before the Collector, as required under Section 32 of the Indian Stamp Act, for necessary certificate. It has been held that at no point of time any instrument in fact was presented, for adjudication of the proper stamp duty payable thereon, before the Collector nor any reasoned order was ever passed by the Collector qua adjudication of the proper stamp duty. It has been held that at no point of time any instrument in fact was presented, for adjudication of the proper stamp duty payable thereon, before the Collector nor any reasoned order was ever passed by the Collector qua adjudication of the proper stamp duty. It has also been recorded that at no point of time any certificate, as contemplated by Section 32 of the act, was ever obtained on the instrument qua sufficiency of the stamp duty either before registration or subsequent to its registration. ( 14 ) FROM the facts, which have been noticed herein above, this Court has no hesitation to record that as a matter of fact no adjudication, as contemplated by Section 31 of the Indian Stamp Act, has taken place in the facts of the present case. Report submitted by the Sub-Registrar, on which the endorsement made by the Additional District Magistrate is to the effect that the report may be communicated by the Sub-Registrar himself, specifically in the background where no instrument was presented along with the application for adjudication of the proper stamp duty, cannot be treated to be an adjudication contemplated by Section 31 of the Indian Stamp Act. Such order of the additional District Magistrate is not referable as an adjudication of proper stamp duty under Section 31 of the Act. ( 15 ) THIS Court may record that the finding recorded by the Additional District Magistrate (Finance and Revenue) in its order dated 24-4-2006 are in accordance with law and are based on true and correct interpretation of scope of Section 31 read with Section 32 of the Indian Stamp Act. The Honble high Court, Allahabad in the case of Orissa cement Limited, Sahupuri, Varanasi v. Chief controlling Revenue Authority, Allahabad/ revising Authority and another, reported in 2004 (1) AWC 871 : (2004 All LJ 277), has specifically issued directions that for an adjudication, to be made under Section 31 of the Stamp Act, reasons must be disclosed for the basis of the valuation of the property and the adjudication of the stamp duty. ( 16 ) FROM the facts of the present case it is apparently clear that the only order on record passed by the Additional District magistrate, which according to the petitioner is an order under Section 31 as already been quoted hereinabove, is to the effect that the sub-Registrar may communicate his report. ( 16 ) FROM the facts of the present case it is apparently clear that the only order on record passed by the Additional District magistrate, which according to the petitioner is an order under Section 31 as already been quoted hereinabove, is to the effect that the sub-Registrar may communicate his report. Such orders by no stretch of imagination can be termed to be an adjudication under section 31 of the Act. Consequently, the plea raised on behalf of the petitioner to the effect that the proceedings initiated under section 33 of the Stamp Act are hit by the order issued under Section 31 is totally misplaced and is based on complete non-consideration of the order, which was passed by the Additional District Magistrate dated 20-7-2004 on the application made by the petitioner. ( 17 ) IN view of the aforesaid facts, the judgment relied upon by the counsel for the petitioner in the case of Surendra Swaroop sharma v. Additional District Magistrate (Finance and Revenue), Bulandshahr and another, 1991 (2) ARC 364 is clearly distinguishable, inasmuch as there has been no expression of opinion under Section 31 of the Act by the Collector, which may bar the proceedings under Section 33. Reference may also be had to paragraph 4 of the said judgment wherein, with reference to the Full bench judgment of this Court in the case of mohammad Amir Ahmad Khan v. Deputy commissioner and others, AIR 1956 All 453 , it has been noticed that the procedure, in qases to which Sections 31 and 32 apply is that when an instrument is brought before the Collector, he proceeds to give his opinion. After the Collector has given his opinion it is left entirely to the applicant to pay the duty or not and the Collector cannot, under the either of these sections compel its realization, nor can he levy any penalty though it may be that he can order the prosecution of the applicant. This Full Bench judgment has been affirmed by the Honble supreme Court in the case of Government of Uttar Pradesh and others v. Raja mohammad Amir Aham Khan, AIR 1961 SC 787 . This Full Bench judgment has been affirmed by the Honble supreme Court in the case of Government of Uttar Pradesh and others v. Raja mohammad Amir Aham Khan, AIR 1961 SC 787 . ( 18 ) AS already noticed above there has been no expression of opinion by the Collector under Section 31 in the facts of the present case and, therefore there can be no restriction on the proceedings under Section 33 of the Act on the instrument, as has been got registered by the petitioner. ( 19 ) ANOTHER striking feature specifically noticed in the facts of the present case is that according to the report of the Sub-Registrar, which according to the petitioner is referable to Section 31, the total stamp duty adjudicated on the instrument and in fact paid was Rs. 83,600/ -. The stamp duty calculated in proceedings under Section 33, after determination of the true value of the stamp duty payable on the transaction, is fixed at Rs. 33,80,300/-, which is nearly 40 times the assessment as made by the Sub-Registrar earlier and which according to the petitioner is referable to Section 31. The difference between these two figures is too larger and cannot be overlooked. Evasion of stamp duty with the connivance of the officers, so as to cause loss to public exchequer, would be against public interest and has to be dealt with firmly. ( 20 ) THEREFORE, even if the contention raised on behalf of the petitioner is taken as correct for the sake of arguments, this Court would refuses to exercise its writ jurisdiction under Article 226 of the Constitution of india in favour of the petitioner. ( 21 ) THE Court may also deal with the other objection raised on behalf of the petitioner to the effect that the potential of the land is to be determined with reference to the date on which it was purchased and not with reference to any future date. The legal position as stated by the counsel for the petitioner with reference to the judgments in the case of Shakumbari Sugar and Allied industries Limited v. State of U. P. and others, 2007 (102) RD 842 : (2007 (4) ALJ 98)and Smt. Sushila Verma v. State of U. P. and others, 2006 (2) AWC 1492 : (2006 (1) ALJ 711) is not in dispute. ( 22 ) IN the facts of the present case it would be apparent from the reasons recorded hereinunder that the commercial potential of the property under transaction has been arrived at with reference to the date of transaction and not with reference to any future date. The authorities have found that on the date transfer has been executed, the property in question had commercial potential and therefore they have determined the stamp duty payable, after application of the commercial rates applicable to the area. For the said conclusion following facts have been noticed. ( 23 ) THE Additional District Magistrate (Finance and Revenue) has recorded that even before making an application under Section 31 of the Stamp Act, the petitioner had already made an application on 12-9-2003 for grant of Dealership of a petrol/diesel outlet. A site plan for construction of the retail outlet on the land subject matter of the instrument was submitted by the petitioner for the purposes of obtaining no objection certificate qua grant of an Explosive licence under the Petroleum Act and Rules. The land is situate on National Highway Mirzapur-Jhansi (NH-76) in the commercial area of city Mahoba, within 300 meter of the land, krishi Utpadan Mandi Samiti, Roadways, district Hospital, Civil Court, District Magistrate residence, Magistrate Office and other commercial establishments like Banquiete hall, Marriage Hall, Motor Vehicle Showroom were in existence. Lastly it has been noticed that the total area of land covered by the transaction is so small so as to be put to any agricultural use. ( 24 ) IN the totality of the circumstances noticed above, it has been held that the land purchased by the petitioner had commercial potential and therefore stamp duty applicable at the commercial rate in the area had to be applied. The total stamp duty payable on such transaction has been fixed at rs. 33,80,300/ -. The findings of fact recorded by the District Magistrate have been affirmed by the Chief Controlling Revenue authority, U. P. , Allahabad in an appeal under Section 56-A of the Stamp Act. The findings of fact cannot be said to be perverse or based on no evidence so as to warrant any interference under Article 226 of the Constitution of India. The findings of fact cannot be said to be perverse or based on no evidence so as to warrant any interference under Article 226 of the Constitution of India. ( 25 ) THIS Court may record that both the authorities under the Stamp Act have recorded a categorical finding that a deliberate attempt was made by the petitioner to evade the stamp duty and evidence was created for the purposes of defrauding the State exchequer. ( 26 ) IN view of the aforesaid conclusion arrived at by the authorities, the demand of penalty of an amount equivalent to the stamp duty evaded in the facts of the case cannot be said to be exorbitant. ( 27 ) WRIT petition lacks merit and is accordingly dismissed. Petition dismissed. .