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2007 DIGILAW 2042 (ALL)

A D STATE DEVELOPERS v. STATE OF U P

2007-08-03

B.S.CHAUHAN, RAJES KUMAR

body2007
RAJES KUMAR, J. By means of present writ petition, petition has challenged the notice dated 4-6-2005 issued by Deputy Inspector General of Stamp, Gorakhpur Mandal, Gorakhpur under Sections 47-A/33 of the Indian Stamp Act (hereinafter referred to as "act") relating to the valuation and the deficiency of the stamp in Case No. 1/2005-06, State v. A. D. State Developers, on the ground that once the stamp duty has been determined under Section 31 of the Act, the respondents has no jurisdiction to reopen the valuation of the property and the proceedings under Sections 47-A/33 of the Act suffers from manifest illegality on the face of the record. 2. Heard learned Counsel for the parties. 3. Learned Counsel for the petitioner submitted that for the determination of the stamp duty of Plot No. 1/2, area 4. 07 acre located in Ramgarh Tal Pariyojna, District Gorakhpur, which is located at 110 mtr. away from the main road, the petitioner moved an application under Section 31 of the Act on 21-11- 2003. Additional District Magistrate (F&r), Gorakhpur after getting the report from Tehsildar Sadar and having regard to the location of the plot, vide order dated 20-3-2004 determined the amount of stamp duty at Rs. 9. 50 lacs @ 19 lacs per acre. Thereafter, an endorsement was made by Additional District Magistrate, (F&r), Gorakhpur holding power of the Collector on the sale-deed executed on the stamp duty vide its order dated 26-3-2004 and has observed that in pursuance of the application dated 21-11- 2003 the sale-deed has been valued and according to which a sum of Rs. 7,73,300/- was payable towards stamp duty, which has been paid. He further submitted that once the stamp duty has been determined under Section 31 of the Act, it is not open to the Collector or the person authorised on his behalf to raise the demand on the ground of deficiency under Sections 33/47-A of the Act. He further submitted that the order dated 20-3-2004 was challenged by the State Government in Writ Petition No. 21535 of 2007. This Court vide order dated 9-5-2007 dismissed the aforesaid writ petition and confirmed the order passed under Section 31 of the Act. It is submitted that the impugned notice dated 4-6-2005 purported to re-open the case and disputing the valuation of the property and the stamp duty paid on the instrument is absolutely illegal and liable to be quashed. This Court vide order dated 9-5-2007 dismissed the aforesaid writ petition and confirmed the order passed under Section 31 of the Act. It is submitted that the impugned notice dated 4-6-2005 purported to re-open the case and disputing the valuation of the property and the stamp duty paid on the instrument is absolutely illegal and liable to be quashed. In support of his submission, he referred the various decisions. 4. Smt. Archana Srivastava, learned Standing Counsel submitted that the valuation of the property has not been made in accordance to the law and, therefore, then notice dated 4-6-2005 has been rightly issued under Sections 33/47-A of the Act. 5. We have heard learned Counsel for the parties and gone through the records. The present petition is being disposed of with the consent of the parties. 6. It is useful to refer relevant part of Sections 31, 32, 33 and 47-A of the Act : "section 31. Adjustment as to proper stamp.- (1) When any instrument whether previously stamped or not, and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any), with which it is chargeable, and pays the fee of such amount as may be fixed by the State Government by notification in the Official Gazette the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable. (2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence, as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly : Provided that - (a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceedings, except in an inquiry as to the duty with which the instrument, to which it relates, is chargeable; and (b) any person be whom any such evidence is furnished shall on payment of the full duty with which the instrument to which it relates is chargeable, be relived from any penalty which he may have incurred under this Act by reasons of the omission to state truly in such instrument any of the facts or circumstances aforesaid. Section 32. Certificate by Collector.- (1 ). . . . . . (2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable. (3) Any instrument upon which an endorsement has been made under this section, shall be deemed to be duly stamped, or not chargeable with duty, as the case may be, and if chargeable with duty, shall be receivable in evidence or otherwise, and may be acted upon and registered as if it has been originally duly stamped : Provided that nothing in this section shall authorise the Collector to endorse : Section 33. Examination and impounding of instruments. Examination and impounding of instruments. (4) Where deficiency in stamp duty paid is noticed from the copy of any instrument, the Collector may suo moto, or on a reference from any Court, or from the Commissioner of Stamps or an Additional Commissioner of Stamps, or a Deputy Commissioner of Stamp or an Assistant Commissioner of Stamps, or any officer authorised by the Board of Revenue in that behalf, call for the original instrument for the purpose of satisfying himself as to the adequacy of the duty paid thereon, and the instrument so produced before the Collector shall be deemed to have been produced or come before him in the reformance of his functions. Section 47-A. Under-valuation of instrument. (3) The Collector may, suo moto on a reference from any Court or from the Commissioner of Stamps, or an Additional Commissioner of Stamps or a Deputy Commissioner of Stamps or an Assistant Commissioner of Stamps or any officer authorised by the State Government in that behalf, within four years from the date of registration of any instrument on which duty is chargeable on the market value of the property not already referred to him under sub-section (1), call for and examine the instrument of the purpose of satisfying himself as to the correctness of the market value of the property, which is the subject of such instrument, and the duty payable thereon, and if after such examination he has reason to believe that the market value of such property has not been truly set forth in such instrument, he may determine the market value of such property and the duty payable thereon : Provided that, with the prior permission of the State Government an action under this sub-section may be taken after a period of four years but before a period of eight years from the date or registration of the instrument on which duty is chargeable on the market value of the property. Explanation.- The payment of deficit stamp duty by any person under any order of the registering officer under sub- section (1) shall not prevent the Collector from initiating proceedings on any instrument under sub-section (3)]. " 7. We find substance in the argument of learned Counsel for the petitioner. This Court vide order dated 9-5-2007 upheld the order dated 20-3-2004 passed under Section 31 of the Act. " 7. We find substance in the argument of learned Counsel for the petitioner. This Court vide order dated 9-5-2007 upheld the order dated 20-3-2004 passed under Section 31 of the Act. Once the order dated 20-3-2004 determining the stamp duty at Rs. 9. 50 lacs has been upheld, it is not upon to the authority to take any proceeding revising the aforesaid order. This Court held as follows : "this writ petition has been filed challenging the impugned order dated 20-3-2004 passed by the Authority under the provisions of Section 31 of the Indian Stamp Act. One Sri Hari Mohandas Agrawal had filed an application under Section 31 of the Indian Stamp Act stating that he wanted to purchase the land in dispute, the details of which were given in the application, and thus requested the Statutory Authority to tell the amount of Stamp Duty which he was liable to pay. The Statutory Authority decided the said application vide impugned order dated 20-3-2004 directing the petitioner to pay the stamp duty to the tune of Rs. 9,50,000/ -. This order has been challenged after expiry of more than three years. Ms. Archana Srivastava, learned Standing Counsel has submitted that the amount so determined in the impugned order is very low and it could have been much higher as per the rate of market value prevailing at the relevant time and it could have been determined after making the enquiry from the property dealers as what was the rate prevailing at that time. The order impugned has been passed considering the circle rate fixed by the District Collector, examining the geographical situation of the land and taking full note of the situation of the road observing that the land in dispute is situate just beside the road, though it was not the main road but it was very important road for the egress and ingress. Thus, the order impugned is not liable to be interfered with. More so, no satisfactory explanation has been furnished for approaching this Court after an inordinate delay of three years except that in 2006 some application has been received by the Statutory Authority and the permission has been granted in February, 2006 to examine the issue. Thus, the order impugned is not liable to be interfered with. More so, no satisfactory explanation has been furnished for approaching this Court after an inordinate delay of three years except that in 2006 some application has been received by the Statutory Authority and the permission has been granted in February, 2006 to examine the issue. We are of the opinion that in such a case where the Statutory Authority had exercised its quasi judicial powers determining the valuation of immovable properties, the State Authority should not approach the writ Court unless the allegations of collusion or fraud or corrupt motive is alleged. Admittedly, State has not initiated any disciplinary proceedings against the official who had passed the impugned order. We do not see any justification to interfere in the matter. The petition lacks merit and is accordingly dismissed. " 8. Division Bench of this Court in the case of Chunni Lal Burman v. Board of Revenue, U. P. & Ors. , AIR 1951] All 851, held as follows : "sections 31 and 32, Stamp Act, make it clear that when an instrument is presented to the Collector for his opinion as to the duty chargeable upon it, he is not authorized to impound the document if he comes to the conclusion that the instrument is not sufficiently stamped. It would appear that it is his duty to determine the stamp duty payable upon the instrument. If the applicant pays the deficiency, if any, and if the conditions mentioned in Section 32 are fulfilled, the Collector is then bound to make an endorsement on the document that it is sufficiently stamped. He cannot impound the document and cannot impose a penalty as he is bound to do so under Section 33 read with subsequent sections. " 9. Full Bench of this Court in the case of Mohd. Amir Ahmad v. Dy. Commission & Ors. , AIR 1956 All 453 , considered the scope of the Sections 31, 32 and 33 of the Act and held as follows : "the procedure, in cases to which Sections 31 and 32 apply in that when an instrument is brought before the Collector, he proceeds to give his opinion. Amir Ahmad v. Dy. Commission & Ors. , AIR 1956 All 453 , considered the scope of the Sections 31, 32 and 33 of the Act and held as follows : "the procedure, in cases to which Sections 31 and 32 apply in 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 either of these sections compel its realization nor can be levy and penalty though it may be that he can order the prosecution of the applicant. " 10. The above case was confirmed by the Apex Court in Appeal State of U. P. v. Mohd. Amir Ahmad, AIR 1971 SC 787. Interpreting the Sections 31, 32 and 33 of the Act in paras 5 and 6 of the judgment it held thus : "`the words every person. . . . . . . . . . . . before whom any instrument. . . . . . . . . is produced or comes in the performance of his functions" in Section 33 refer; firstly, to production before judicial or other officers performing judicial or other officers performing judicial functions as evidence of any fact to be proved and secondly, to other officers who have to perform any function in regard to those instruments when they come before them e. g. registration. They do not extend to the determination of the question as to what the duty payable is. They do not cover the acts, which fall within the scope of Section 31, because that section is complete by itself and it ends by saying that the Collector shall determining the duty with which, in his judgment, the instrument is chargeable, if it is chargeable at all. The scheme of the Act shows that where a person is simply seeking the opinion of the Collector as to the proper duty in regard to an instrument he approaches him under Section 31. The scheme of the Act shows that where a person is simply seeking the opinion of the Collector as to the proper duty in regard to an instrument he approaches him under Section 31. If it is not properly stamped and the person executing the document wants to proceed with effectuating the document or using it for the purpose of evidence, he is to make up the duty under Section 32 the Collector will then make an endorsement and the instrument will be treated as if it was duly stamped from the very beginning. But if he does not want to proceed any further than the seeking the determination of the duty payable; then no consequence will follow, and an executed document is in the same position as instrument which is unexecuted and unstamped and after the determination of the duty the Collector becomes functus officio and the provisions of Section 33 have no application. The provisions of that section are a subsequent stage when something more than mere assessing of the opinion of the Collector is to be done. " 11. In view of the above law laid by the Apex Court and by this Court once the Collector has determined the value of the property and the stamp duty, it is not open to the authorities concerned to reopen the case and challenge the same. The Collector becomes functus officio and provisions of Section 33 of the Act have no application. 12. In view of the above, the impugned notice dated 4-6-2005 is liable to be quashed. 13. In the result, writ petition is allowed and the impugned notice dated 4-6-2005 is hereby quashed. Petition allowed. .