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2017 DIGILAW 1863 (ALL)

Suneel v. Commissioner Gorakhpur Div.

2017-08-10

B.AMIT STHALEKAR

body2017
JUDGMENT : B. Amit Sthalekar, J. Heard Sri P.S. Tripathi, learned counsel for the petitioner and the learned Standing Counsel for the State-Respondents. The petitioner in this writ petition is seeking quashing of the orders dated 09.11.2001 and 21.11.2002 arising out of proceedings for deficiency of stamp duty under the Indian Stamp Act, 1899 (hereinafter referred to as the Act, 1899). 2. Briefly stated the facts of the case are that the petitioner purchased the ?rd share of Plot No. 202 area .08 decimal situated in Village Basantpur, District Kushinagar through a sale deed dated 20.09.1991. Alleging that there was deficiency of stamp duty a report was made by the Sub Registrar (Stamp) on 23.09.1991 and thereafter proceedings under Section 47-A of the Act, 1899 were initiated on 12.10.1998. A report of the Tehsildar was called on 08.06.2001 in which it has been held that the land in question is residential and is being used for residential purpose. The market value of the property was determined at Rs. 30,000/- the stamp duty has been determined as Rs. 3,000/-, penalty of Rs. 7,320/- has been imposed, total Rs. 10,320/-. 3. Aggrieved by the order of the Assistant Collector (Stamp) dated 09.11.2001 the petitioner filed revision which has also been dismissed by the Commissioner, Gorakhpur Division, Gorakhpur in a single paragraph relying upon the report of the Tehsildar that the land in question is a residential plot. 4. The learned Standing Counsel has sought to justify the order by stating that the report was called from Tehsildar which is dated 08.06.2001 in which it has been clearly stated that the land in disputed is being used for residential purposes. However, what is notable in the case and which could not be disputed by the learned Standing Counsel is that the entire proceedings computing the deficiency of stamp duty were barred by limitation. Admittedly, the sale deed was executed on 20.09.1991. The Sub Registrar submitted his report on 23.09.1991 regarding deficiency of stamp duty but the proceedings itself was initiated on 12.10.1998 i.e. after more than 7 years and therefore was clearly barred by limitation under Section 47-A (3) of the Act, 1899. Admittedly, the sale deed was executed on 20.09.1991. The Sub Registrar submitted his report on 23.09.1991 regarding deficiency of stamp duty but the proceedings itself was initiated on 12.10.1998 i.e. after more than 7 years and therefore was clearly barred by limitation under Section 47-A (3) of the Act, 1899. Although the plea that the proceedings were barred by limitation has not been taken anywhere in the writ petition or in the grounds thereunder but being a question of law which goes to root of the matter, the same has been considered by the Court. 5. This controversy is no longer res integra having been settled by a Full Bench of this Court in the case of Girjesh Kumar Srivastava and another v. State of U.P. and others reported in AIR (1998) All 237, (1998 RD (Suppl.) 523) wherein the Full Bench in paragraph 14 has held as under: "14. Our answers to the questions referred are as follows: 1. While exercising power under sub-section (4) of Section 47-A the Collector can determine the market value of the property and the duty payable on the instrument as a result of such determination but he has no power to impose penalty. 2. The period of limitation of four years in sub-section (4) to Section 47-A applies to the action which may be initiated by the Collector and not to a reference from any Court or other authorities enumerated in the subsection." 6. In view of the facts and the law laid down by the Full Bench of this Court in the case of Girjesh Kumar Srivastava (supra) the impugned orders are absolutely illegal and without jurisdiction and are accordingly, quashed. 7. The writ petition is allowed. 8. Any amount which has been deposited by the petitioner towards the deficiency of stamp duty in terms of the interim order of this Court dated 12.05.2003 shall be refunded to the petitioner by the respondents within two months from the date a certified copy of this order is received in his office.