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2017 DIGILAW 2080 (ALL)

Aparna Rai Choudhary v. State of U. P.

2017-09-05

B.AMIT STHALEKAR

body2017
JUDGMENT : B. Amit Sthalekar, J. Heard Sri Anoop Trivedi assisted by Sri Kapil Tyagi, learned counsel for the petitioner and the learned Standing Counsel for the respondents. 2. The petitioner in the writ petition is seeking quashing of the order dated 02.03.2009 passed by Additional Commissioner Stamp, Meerut Division Meerut/Chief Controlling Officer, Revenue in Revision/Appeal No. A-189/07-08 (Smt. Arpana Rai Chowdhary v. State), arising out of proceedings under section 33 of the Indian Stamp Act, 1899 (the Act, 1899). 3. Briefly stated the facts of the case are that the petitioner executed an agreement to sell in respect of Flat No. 109, First Floor at 'Emerald Court (E-Type), at 'Plot No. 116', Pocket-I, Sector-7, Vaishali Extension, Ghaziabad through an agreement dated 28.05.2005. It is further stated that the sale deed in respect of the said plot was executed on 31.05.2008 and an amount of Rs. 2,31,200/- was paid as stamp duty. However on an allegation that no stamp duty was paid on the agreement to sell, proceedings under Section 33 of the Act, 1899 were initiated against the petitioner and deficiency of stamp duty was determined as Rs. 76,000/- and also penalty of Rs. 3,04,000/- was imposed together with interest @ 1.5% to be paid w.e.f. 28.05.2005 till the date of payment. 4. The submission of learned counsel for the petitioner is that at the time of agreement to sell, possession had never been delivered to the petitioner and the possession was delivered only after the execution of the sale deed. Therefore, on the agreement to sell, stamp duty was chargeable only under Article 5, Clause (b-1) of Schedule 1-B of the Act, 1899 and proviso thereto, which would be of the amount of consideration as in the case of conveyance under Article 23 of Schedule 1-B. Article 5 (b-1) of Schedule 1-B of the Act, 1899, which reads as under: "(b-1) if relating to the sale of an immovable property where possession is not admitted to have been delivered nor is agreed to be delivered without executing the conveyance." 5. It further provides in the proviso that when conveyance in pursuance of such agreement is executed, the stamp duty paid on the agreement shall be adjusted towards the total duty payable on the conveyance. 6. It further provides in the proviso that when conveyance in pursuance of such agreement is executed, the stamp duty paid on the agreement shall be adjusted towards the total duty payable on the conveyance. 6. The proviso to Article 23 of Schedule 1-B of the Act, 1899 reads as under: "Provided that when conveyance in pursuance of such agreement is executed, the duty paid under this clause in excess of the duty payable under clause(c) shall be adjusted towards the total duty payable on the conveyance." 7. The explanation to Article 23 and the proviso thereto reads as under: "For the purposes of this Article, in the case of an agreement to sell an immovable property, where possession is delivered before the execution or at the time of execution or is agreed to be delivered without executing the conveyance, the agreement shall be deemed to be a conveyance and stamp duty thereon shall be payable accordingly:" 8. Further submission of learned counsel for the applicant is that in view of specific mandatory provision of second proviso to explanation to Article 23 of Schedule 1-B, the amount of duty payable towards agreement to sell ought to have been adjusted by the authorities against the stamp duty paid on the sale deed. He submits that it is not that the respondents were not aware that sale deed had been executed since this fact has been mentioned in the order of Collector Stamp as well as Revisional Authority but beyond stating the facts the impugned orders do not disclose that the authorities have adjusted this amount against the stamp duty paid by the petitioner on the sale deed. He further submits that once the stamp duty had been paid on the sale deed, extra charge by way of stamp duty would have been imposed in the proceedings under Section 23-B charging stamp duty on the agreement to sell and requiring the petitioner to pay the same. 9. He further submits that once the stamp duty had been paid on the sale deed, extra charge by way of stamp duty would have been imposed in the proceedings under Section 23-B charging stamp duty on the agreement to sell and requiring the petitioner to pay the same. 9. From the perusal of the impugned order, it is noticed that both the authorities have noted the fact that there was a sale deed executed by the petitioner and, therefore, even if it circumstanced that stamp duty had not been paid by the petitioner on the agreement to sell and there was outstanding liability of stamp duty, the same was required to be adjusted against the stamp duty paid on the sale deed and only if any amount still remained outstanding the same could have been recovered from the petitioner. 10. In view of the mandatory provisions of second proviso to Article 23 of Schedule 1-B of the Act, 1899, both the stamp authorities have failed to consider this aspect of the matter. 11. Learned standing counsel could not dispute the legal proposition emerging from the mandatory provisions of statute. 12. In this view of the matter, the impugned order dated 02.03.2009 is set aside and the matter is remitted to the Respondent no. 3, Chief Controlling Revenue Authority to reexamine the matter in the light of the statutory provisions and the observations made herein above and pass fresh orders in accordance with law within a period of three months from the date of receipt of certified copy of this order after giving opportunity of being herd to the petitioner. 13. The writ petition is allowed.