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Allahabad High Court · body

2017 DIGILAW 2068 (ALL)

Vishwambhar Nath Awasthi v. State of U. P.

2017-09-04

B.AMIT STHALEKAR

body2017
JUDGMENT : B. Amit Sthalekar, J. In this case time for filing counter affidavit was granted on 24.3.2003 to the learned standing counsel but till date no counter affidavit has been filed. More than 14 years have passed. On 9.8.2017 three weeks and no more time was again granted for filing counter affidavit, even then counter affidavit has not been filed. 2. In this view of the matter, I do not intend to grant the respondents any further time to file the counter affidavit. 3. Heard Shri Satya Prakash, learned counsel for the petitioner and the learned standing counsel for the State respondents. 4. The petitioner in the writ petition is seeking quashing of the various orders dated 3.11.1999, 12.1.2001, 12.11.2001 and 16.12.2002 arising out of the proceedings under the Indian Stamp Act (hereinafter referred to as the Act, 1899) for deficiency of stamp duty. 5. Briefly stated the facts of the case are that the petitioner purchased the land in dispute vide sale deed dated 27.10.1993 on which he paid stamp duty as per valuation of the land at circle rate. On an allegation that there was deficiency of stamp duty, proceedings were initiated and thereafter the Stamp Authority has passed the order on 3.11.1999 wherein the Collector, Stamps had determined the deficiency of stamp duty at Rs. 22,185/-, which has been affirmed by the Addl. Commissioner (Administration) by his order dated 16.12.2002. 6. Learned counsel for the petitioner submitted that the entire proceedings are barred by limitation as the sale deed is dated 27.10.1993 whereas the stamp suit was itself instituted in 1998- 99 being stamp suit no. 614/98-99 under section 47-A(4) of the Act, 1899. Pleading to that effect has been taken in the stamp appeal filed by the petitioner. 7. Learned standing counsel, on the other hand, submitted that the requisite notice under sub section (2) of Section 47-A of the Act, 1899 had already been issued in the year 1996 and therefore, it would be deemed that the Commissioner had initiated the action for determining the deficiency of stamp duty in time. 8. In my opinion the submission of the learned standing counsel cannot be accepted for the reason that the issuance of notice as contemplated under sub section (2) of Section 47-A of the Act, 1899 is only a pre-condition before initiating the stamp suit. 8. In my opinion the submission of the learned standing counsel cannot be accepted for the reason that the issuance of notice as contemplated under sub section (2) of Section 47-A of the Act, 1899 is only a pre-condition before initiating the stamp suit. Issuance of a notice under sub section (2) of Section 47-A of the Act, 1899 is only a pre condition before initiation of a stamp suit and is required to be issued to the petitioner in order to give him an opportunity of being heard. Merely because the notices have been issued does not necessarily mean that the stamp suit itself has been filed. The notice under sub section (2) of Section 47-A of the Act, 1899 is issued inviting objections from the petitioner and if the objections are found to be satisfactory, the Collector may chose not to file the stamp suit at all, therefore, issuance of notice itself does not imply the filing of a stamp suit. If that had been the intention of the legislature then in sub section (3) of Section 47-A of the Act, 1899 the legislature would have said it in so many words that the limitation of four years as prescribed under sub section (3) of Section 47-A of the Act, 1899 would be from the date of registration of the instrument to the date of the notice as issued under sub section (2) of Section 47-A of the Act, 1899. Sub sections (2) and (3) of Section 47-A of the Act, 1899 read as under: "47-A (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 from a Deputy Commissioner of Stamps or from an Assistant Commissioner of Stamps or any officer authorized by the State Government in ration 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 an 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 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. Explanation: The payment of deficit stamp duty by any person under any order of registering officer under sub-section (1) shall not prevent the Collector from initiating proceedings on any instrument under sub-section (3)." 9. The language of sub section (3) of Section 47-A of the Act, 1899 is quite clear and unambiguous that the Collector may suo motu or on a reference made 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 in under sub section (1) "call for and examine the instrument for the purposes 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" 10. It is therefore clear that it is the imperative requirement of principles of natural justice that notice is required to be issued prior to filing a stamp suit, which is also a procedure which has to be followed under the Act, 1899. On the other hand, the language of sub section (2) of Section 47-A of the Act, 1899 signifies that on a reference made under sub section (1) of Section 47-A of the Act, 1899 the Collector shall after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed determine the market value of the property which is the subject matter of such instrument and the duty payable thereon. This clearly denotes the distinction between the operation of sub section (3) and (2) of Section 47-A of the Act, 1899. Thus merely because the notice has been issued under sub-section (2) of Section 47-A of the Act, 1899 to the vendee would not imply the initiation of proceedings for determining the market value of the property and the duty payable thereon. A conjoint reading of sub section (2) and (3) of Section 47-A of the Act, 1899 implies two separate steps/actions to be taken by the Collector before proceeding to determine the deficiency of stamp duty. 11. In the present case the notice was issued on 21.11.1996 whereas the stamp suit itself was filed as suit no. 614/98-99 which is beyond the period of four years from the date of registration of the instrument. In this view of the matter not only the order of the Collector, Stamps dated 7.11.1991 but all the proceedings thereafter also are wholly illegal and without jurisdiction. 12. In this view of the matter the impugned orders dated 3.11.1999, 12.1.2001, 12.11.2001 and 16.12.2002 are absolutely illegal and without jurisdiction and are accordingly quashed. The writ petition stands allowed. 13. If any amount has been deposited by the petitioner towards the deficiency of stamp duty, the same shall be refunded to the petitioner by the respondents within a period of two months from the date of receipt of the certified copy of this order.