JUDGMENT : H.K. RATHOD, J. 1. Heard learned Senior Advocate Mr. S.N. Shelat with learned advocate Mr. Kabir A. Hathi on behalf of petitioners and learned AGP Ms. Jirga Jhaveri for respondents. 2. Rule. Learned AGP Ms. Jirga Jhaveri waives service of notice of Rule on behalf of respondents. 3. With consent of learned advocates appearing for respective parties, the matter is taken up for final hearing today. 4. In present petition, petitioners have challenged order passed by respondent No. 1 dated 15/20.1.2010 (Page-43) while confirming the order dated 11.6.2008 passed by Deputy Collector (Page-35). 5. In this matter, affidavit-in-reply is filed by respondent No. 2 (Page-50), against which affidavit-in-rejoinder is also filed by petitioners. 6. Learned Senior Advocate Mr. Shelat has raised legal contention before this Court challenging the order passed by appellate authority on the ground that specific contention was raised before the appellate authority as to whether the power has been exercised by reviewing authority under Section 32(A)(4) without calling original instruments from the petitioner (Page-45, Item No. 1) is legal and valid or not. This aspect has not been examined by appellate authority whether the reviewing authority can consider copy of such instrument while exercising the power under Section 32(A)(4) or not. This legal contention is not answered by appellate authority (Page-46, Item No. 1, Para-5). 7. I have considered contentions raised in present petition and the averments made by respondent No. 2 in affidavit-in-reply as well as the rejoinder filed by petitioners. 8. After perusing the entire order passed by appellate authority, it appears that no reason is given by appellate authority whether in absence of original instrument, the reviewing authority can exercise the power under Section 32(A)(4) or not. Not only that this aspect not at all discussed by appellate authority and ignored it. 9. Learned Senior Advocate Mr. Shelat submitted that such deeming provision is available to appellate authority while exercising the power under Section 53(A)(2) and similar power is not available to reviewing authority under Section 32(A)(4). 10. Not only that this aspect not at all discussed by appellate authority and ignored it. 9. Learned Senior Advocate Mr. Shelat submitted that such deeming provision is available to appellate authority while exercising the power under Section 53(A)(2) and similar power is not available to reviewing authority under Section 32(A)(4). 10. Relevant provision of Section 32A(4) and Section 53A(1) (2) are quoted as under: “32A(4) The Collector of the district may, suo motu or on receipt of information from any source, within [six years] from the date of registration of any instrument referred to in sub-section (1), (not being the instrument upon which an endorsement has been made under section 32 or the instrument in respect of which the proper duty has been determined by him under sub-section (3) or an instrument executed before the date of the commencement of the Bombay Stamp (Gujarat Amendment) Act,1982) (Guj.21 of 1982) call for examine the instrument for the purpose of satisfying himself as to the correctness of the consideration or of the market value of the property which is the subject matter of such instrument and the duty payable thereon; and if on such examination, he has reason to believe that the consideration does not approximate to the market value of such property or, as the case may be, market value of such property has not been truly and fully set forth in the instrument, he shall proceed as provided in sub-sections (2) and (3).” 53A(1) Notwithstanding anything contained in subsection (3) of Section 32, sub-section (3) of Section 32-A, sub-section (2) of Section 39 and sub-section (2) of Section 41, when through mistake or otherwise any instrument is charged with less duty than leviable thereon, or is held not chargeable with duty, by the Collector, the Chief Controlling Revenue Authority may, within a period of six years from the date of certificate of the Collector under Section 32, 32A, 39 or 41, as the case may be, required the concerned party to produce before him the instrument and, after giving a reasonable opportunity of being heard to the party, examine such instrument whether any duty is chargeable or and duty is less levied thereon and pass an order for recovery of the deficit duty, if any, from the concerned party. An endorsement shall be made on the instrument after payment of such deficit duty. An endorsement shall be made on the instrument after payment of such deficit duty. (2) On failure to produce the original instrument by the party, the Chief Controlling Revenue Authority shall proceed under this section on the basis of the true copy or an abstract of the instrument filed with the Collector and such true copy or abstract shall be deemed to be the original instrument for the purpose of this section.” 10.1 The definition of "instrument" is provided under Section 2(l), which is quoted as under: “2(l) “instrument” includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt. Explanation - The term “document” also includes any electronic records as defined in clause (t) of sub-section (1) of section-2 of the Information Technology Act, 2000. (1)(A) Prior to amendment made in the definition of the word “instrument” by adding explanation thereto, in the case of the Chief Controlling Revenue Authority vs. The Nutan Mills Limited, the Gujarat High Court has held that the right or the liability, as the case may be, is created by the original instrument and not by its copy. (B) The said clause (t) of sub-section (1) of sec. 2 of the IT Act reads as under: “electronic record” means data, record or data generated, image or sound stored, received or sent in electronic form or micro film or computer generated micro fiche. 2(A) This explanation under clause (1) is specifically added to cover documents which fall mostly within the following descriptions of entries of Schedule I to the Act: (i) Art. 5, clause (b) to (g) (ii) Art. 39, clauses (a) to (d) and (f) (iii) Art. 48A clauses (b) to (d) All such agreements, contract notes and records pertaining to transactions of shares, scrip, stock and the commodities will be covered within the meaning of the Explanation and such electronic record shall be now covered within the scope of the definition of “instrument” given in Sec.2 clause (1) of the Act and will be chargeable with stamp duty accordingly. (B) Instruments pertaining to transfer of immovable property and such other documents which cannot be created by electronic record would not fall within the ambit of Explanation added under clause (1) and, therefore, the right or liability in respect to such property can only be created by the original registered instrument only.” 11. Learned Senior Advocate Mr. S.N. Shelat has relied upon the decision of Full Bench of this Court in case of Chief Controlling Revenue Authority, Ahmedabad vs. The Nutan Mills Limited, Ahmedabad, AIR 1978 (Guj) 1 . Relevant observations of aforesaid decision are as under: “(C) Bombay Stamp Act (60 of 1958), S.39 read with S.2(1), S.7 read with S.19 and S.33 - STAMP DUTY - Copy of instrument creating charge - Not an “instrument” - Copy cannot be impounded and neither duty nor penalty can be recovered. Though differential duty is payable under Section 7 read with Section 19 of the Stamp Act in respect of a copy of an instrument creating a charge, the copy cannot be impounded and neither the duty nor the penalty can be levied for there is no provision under which duty or penalty can be recovered if the copy cannot be said to be “instrument” within the meaning of Sec. 39. The expression “instrument” in Sec. 2 (1) refers to a document which itself creates a right or liability or purports to create a right or liability. It cannot refer to a copy of any such instrument. If the document creates or purports to create a right or liability, it would fall under the description of an “instrument” but the copy of such a document cannot fall within the description of “instrument” for it is not the copy which creates or purports to creates a right but the original which creates or purports to create a right.” 12. Learned Senior Advocate Mr. S.N. Shelat has relied upon another decision of Full Bench of this Court in case of Narendra Dharamshbhai Mapara vs. Chief Controlling Revenue Authority, 1994 (1) GLR 908 . Relevant observations of aforesaid decision are in Para-8 and 9 as under: “8. Further, in the present case photostat copy or the copy of the agreement to sell is impounded and not the original instrument. Mr. Shah learned Advocate appearing for the applicants, vehemently submitted that this is totally against the provisions of the Stamp Act. Relevant observations of aforesaid decision are in Para-8 and 9 as under: “8. Further, in the present case photostat copy or the copy of the agreement to sell is impounded and not the original instrument. Mr. Shah learned Advocate appearing for the applicants, vehemently submitted that this is totally against the provisions of the Stamp Act. He submitted that the expression “instrument” as defined under Sec. 2 (I) of the Stamp Act refers to the original instrument by which any right or liability is or purports to be, created, transferred, limited, extended, extinguished or recorded. 9. In our view, this submission of the learned Advocate for the applicants is well founded because the right or the liability, as the case may be, is created by the original instrument and not by its copy. The copy of such document cannot fall within the description of the instrument because it is not the copy which creates or purports to create a right but only the document creates or purports to create a right. This question is also concluded by the decision of this Court in the case of Chief Controlling Revenue Authority vs. Nutan Mills, (1977) XVIII GLR 409. Further, dealing with a similar provision under the Indian Stamp Act the Supreme Court in the case of Jupudi v. Pulavarthi, AIR 1971 SC 1070 , has held that the definition of “instrument” does not cover copy of document for purposes of Stamp Act and there is no scope of inclusion of copy of a document as an instrument for the purposes of the Stamp Act. Admittedly, in the present case the original document was not impounded. Hence the whole procedure adopted by the authority is illegal.” 13. In light of these submissions made by learned Senior Advocate Mr. Shelat and after perusing the entire order passed by appellate authority and considering two decisions given by Full Bench of this Court and also relevant Sections as referred above, the appellate authority has not given any reason in respect to contention raised by petitioners before the appellate authority and even appellate authority has not discussed said contention while giving reasons in support of its conclusion and also not examined at all and ignored it by appellate authority. Therefore, it amounts to basic error committed by appellate authority which amounts to non-application of mind. Therefore, it amounts to basic error committed by appellate authority which amounts to non-application of mind. Therefore, contention raised by petitioners before appellate authority that in absence of calling original instrument, reviewing authority cannot consider copy of such instrument while exercising power under Section 32(A)(4). 14. Therefore, legal contention raised by learned Senior Advocate Mr. Shelat before this Court and same was raised before appellate authority which remained unanswered. Therefore, let these questions may be examined again or reconsidered by appellate authority which has been raised by petitioner before appellate authority. Therefore, only on that ground, the order passed by appellate authority dated 15/20.1.2010 is hereby quashed and set aside, with a direction to appellate authority - Chief Controlling Revenue Authority to re-consider the entire appeal and also to consider contention raised by petitioner as referred above and pass appropriate reasoned order in accordance with law, after giving reasonable opportunity of hearing to respective parties, within a period of three months from date of receiving copy of present order. 15. Accordingly, Rule is made absolute to aforesaid extent. However, it is made clear that this Court has not expressed any opinion in respect of merits of the matter. Directions Given.