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2014 DIGILAW 376 (UTT)

Srikant v. State of Uttarakhand

2014-09-12

ALOK SINGH

body2014
Judgment Alok Singh, J. Present petition is filed assailing the order dated 20.02.2013 passed by Additional Collector (Finance and Revenue), Haridwar and order dated 01.05.2013 passed by the Commissioner, Garhwal Mandal whereby it was held that stamp duty of Rs. 2,98,562/- was deficit on the sale deed presented for registration on 03.12.2012. It was further held that over and above the deficit stamp fee of Rs. 2,98,562/-, Rs. 2,98,562/- should also be paid as penalty. 2. Sale deed was presented for registration on 03.12.2012, Registering Officer made reference to learned Collector reporting that petitioner had paid deficit stamp of Rs. 2,98,562/- whereupon notice was issued to the petitioner and thereafter, impugned order was passed. 3. I have heard Mr. Nagesh Agarwal, Advocate for the petitioner and Mr. R.C. Arya, learned Standing Counsel for the State of Uttarakhand and have carefully perused the record. 4. Section 47A of the Indian Stamp Act reads as under “Section 47-A - Under-Valuation of instrument: 1[(1) (a) If the market value of any property, which is the subject of any instrument, on which duty is chargeable on market value of the property as set forth in such instrument is less than even the minimum value determined in accordance with the rules made under this Act, the registering officer appointed under the Registration Act, 1908, shall, notwithstanding anything contained in the said Act, immediately after presentation of such instrument, and before accepting it for registration and taking any action under Section 52 of the said Act, require the person liable to pay stamp duty under Section 29, to pay the deficit stamp duty as computed on the basis of the minimum value determined in accordance with the said rules and return the instrument for presenting again in accordance with Section 23 of the Registration Act, 1908. b) When the deficit stamp duty required to be paid under clause (a), is paid in respect of any instrument and the instrument is presented again for registration, the registering officer shall certify by endorsement thereon, that the deficit stamp duty has been paid in respect thereof and the name and the residence of the person paying them and register the same. c) Notwithstanding anything contained in any other provisions of this Act, the deficit stamp duty may be paid under clause (a) in the form of impressed stamps containing such declaration as may be prescribed. c) Notwithstanding anything contained in any other provisions of this Act, the deficit stamp duty may be paid under clause (a) in the form of impressed stamps containing such declaration as may be prescribed. d) If any person does not make the payment of deficit stamp duty after receiving the order referred to in clause (a) and presents the instrument again for registration, the registering officer shall, before registering the instrument refer the same to the Collector for determination of market value of the property and the proper duty payable thereon.] (2) On receipt of a reference under sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard, and after holding an inquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject of such instrument, and the proper duty payable thereon. (3) The Collector may, suo motu, or 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 for 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 of registration of the instrument on which duty is chargeable on the market value of the property. 2[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)]. 2[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)]. (4) If on enquiry under sub-section (2) and examination under sub-section (3), the Collector finds the market value of the property- (i) truly set forth and the instrument duly stamped, he shall certify by endorsement that it is duly stamped and return it to the person who made the reference; (ii) not truly set forth and the instrument not duly stamped, he shall require the payment of proper duty or the amount required to make up the deficiency in the same, together with a penalty of an amount not exceeding four times the amount of the proper duty or the deficient portion thereof. (4-A) The Collector shall also require along with the deficit stamp duty or penalty required to be paid under clause (ii) if sub-section (4), the payment of a simple interest at the rate of one and half per cent per mensem on the amount of deficit stamp duty calculated from the date of the execution of the instrument till the date of actual payment. Provided that the amount of interest under this sub-section shall be recalculated if the amount of deficit stamp duty is varied on appeal or revision or by any order of a competent court or authority. (4-B) The amount of interest payable under sub-section (4-A) shall be added to the amount due and be also deemed for all purposes to be part of the amount required to be paid. (4-C) Where realisation of the deficit stamp duty remained stayed by any order of any court or authority and such order of stay is subsequently vacated, the interest referred to in sub-section (4-A) shall be payable also for any period during which such order of stay remained in operation. (4-D) Any amount paid or deposited by or recovered from, or refundable to, a person under the provision of this Act, shall first be adjusted towards the deficit stamp duty or penalty outstanding against him and the excess if any, shall then be adjusted towards the interest, if any, due from him. (5) The instrument produced before the Collector under sub-section (2) or under sub-section (3), shall be deemed to have come before him in the performance of his functions. (5) The instrument produced before the Collector under sub-section (2) or under sub-section (3), shall be deemed to have come before him in the performance of his functions. (6) In case the instrument is not produced within the period specified by the Collector, he may require payment of deficit stamp duty, if any, together with penalty on the copy of the instrument in accordance with the procedure laid down in sub-sections (2) and (4).” 5. A plain reading of sub-Section (1)(a) of Section 47-A would demonstrate that if stamp duty paid on the document presented for registration is found to be deficit in accordance with the valuation determined in accordance with Rules, Registering Officer, immediately after presentation of such instrument and before accepting it for registration and taking any action under Section 52 of the Act, shall return the document to the presenter to re-present it, after making good of the deficit stamp duty. 6. As per sub-Section 4 of Section 47-A, penalty can be imposed, if inquiry is held under sub-Section (2) of Section 47-A. Inquiry under sub-Section (2) of Section 47-A is permissible only when person does not make payment of deficit stamp duty after receiving the order referred to in clause (a) and presents the instrument again for registration. 7. In the present case, document was never returned to the petitioner for re-presentation, after making good of the deficit stamp duty, therefore, there was no occasion for the petitioner to re-present it, after making good of the deficit stamp duty. Registering Officer instead of returning the sale deed for re-presentation was pleased to refer the same to the Collector to initiate inquiry, therefore, inquiry under sub-Section (2) stood vitiated, consequently, orders impugned are without jurisdiction and penalty imposed is also without jurisdiction. 8. At this stage, learned counsel for the petitioner submits that petition is ready and willing to pay deficit stamp duty on the sale deed within such time as this court deems fit. 9. Petition, thus, stands disposed of with the direction to the petitioner to pay deficit stamp duty of Rs. 298562/- within six weeks from today before the Registering Officer. On payment of deficit stamp duty of Rs. 2,98,562/-, Registering Officer shall register the document within one week positively. Penalty imposed stands quashed. 10. CLMA No. 4688 of 2013 also stands disposed of accordingly. No order as to costs.