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2018 DIGILAW 1993 (ALL)

Neeru Yadav v. State Of U. P.

2018-09-14

SALIL KUMAR RAI

body2018
JUDGMENT : 1. A sale-deed dated 11.2.2005 regarding a plot was executed in favour of the petitioner and requisite stamp duty was paid on the same after computing it at the residential rates fixed by the Collector. However, a report dated 21.2.2006 was submitted by the Deputy District Magistrate, Sadar, District-Etawah (hereinafter referred to as, 'Deputy District Magistrate') stating that the plot was situated in a commercial area and the stamp duty had to be paid on the same after determining the market value of the plot on the aforesaid basis. On the said report dated 21.2.2006, Case No. 32/2005-06 under Section 47-A/33 of the Indian Stamp Act, 1899 (hereinafter referred to as, 'Act, 1899') was registered in the Court of Collector (Stamp), District-Etawah, i.e., respondent No.2 (hereinafter referred to as, 'Collector') and in the said case show cause notice was issued to the petitioner, who filed her reply denying the correctness of the report of the Deputy District Magistrate and prayed that the Collector may get the plot inspected again by some other competent officer. On the application of the petitioner, the Collector got the plot inspected by the City Magistrate, Etawah, who submitted his report dated 10.7.2006 stating that commercial buildings existed in the neighbourhood of the plot, and therefore, the market value of the plot had to be determined and the stamp duty to be paid on the sale-deed dated 11.2.2005 was to be computed at the rates fixed for commercial plots. Relying on the aforesaid report dated 10.7.2006 submitted by the City Magistrate, the Collector vide his order dated 30.11.2006 held that there was a deficiency of Rs. 82,632/-in payment of stamp duty and directed that the aforesaid amount alongwith a penalty of Rs. 82,632 and interest calculated at the rate of 1.5% per month be recovered from the petitioner. The order dated 30.11.2006 passed by the Collector was challenged by the petitioner under Section 56 of the Act, 1899 in Appeal No. 37/2006 before the Commissioner, Kanpur Division, Kanpur, i.e., respondent No. 1 (hereinafter referred to as, 'Commissioner') and the same was dismissed by the Commissioner vide his judgment and order dated 20.3.2007. The orders dated 20.3.2007 passed by the Commissioner and 30.11.2006 passed by the Collector have been challenged in the present writ petition. 2. The orders dated 20.3.2007 passed by the Commissioner and 30.11.2006 passed by the Collector have been challenged in the present writ petition. 2. It has been contended by the counsel for the petitioner that the area in which the plot was situated was not within the commercial area in the notification issued by the Collector which has been annexed as Annexure No. 8 to the writ petition, and therefore, the market value of the property and the requisite stamp duty could not be determined at rates fixed for commercial plots. It has been further contended by counsel for the petitioner that the report submitted by the City Magistrate did not depict the correct location of the plot, and therefore, the Collector had erred in law in relying on the same. Counsel for the petitioner has further argued that the penalty of Rs. 82,632/-has been imposed on the petitioner without recording any finding that there was any attempt by the petitioner to evade payment of stamp duty and for the aforesaid reason also the order 30.11.2006 passed by the Collector so far as it imposes penalty on the petitioner is liable to be set aside. It has been argued that for the aforesaid reasons, the orders dated 20.3.2007 passed by the Commissioner and 30.11.2006 passed by the Collector are liable to be set aside. 3. I have considered the submissions of counsel for the petitioner and perused the records. 4. The document annexed as Annexure No. 8 to the writ petition, i.e, the notification dated 29.4.2006 merely relates to the minimum value fixed by the Collector for computing the stamp duty on any instrument. However, the stamp duty on any instrument has to be paid on the market value of the property and proceedings were instituted against the petitioner under Section 47-A of the Act, 1899 wherein the market value as disclosed was found to be less than the actual market value of the property. Further, the Collector while passing the order dated 30.11.2006 has relied on the report of the City Magistrate submitted after inspection of the plot done on an application filed by the petitioner. Further, the Collector while passing the order dated 30.11.2006 has relied on the report of the City Magistrate submitted after inspection of the plot done on an application filed by the petitioner. While passing the order dated 30.11.2006, the Collector has relied on materials available before him and the finding regarding the location of property is a finding of fact based on reliable evidence on record and not amenable to examination by this Court under Article 226 of the Constitution of India. There is no illegality in the order dated 30.11.2006 passed by the Collector, so far as it holds that there was a deficiency in payment of stamp duty on the sale-deed dated 11.2.2005. 5. However, a perusal of the order dated 30.11.2006 passed by the Collector shows that no findings have been recorded by the Collector in his aforesaid order that there was any deliberate attempt on the part of the petitioner to evade payment of stamp duty. In absence of any findings as aforesaid, no penalty could have been imposed upon the petitioner for deficiency in payment of stamp duty. In this context it would be relevant to refer to the judgment of this Court in Varun Gopal Vs. State of U.P. and Others, 2015 (2) ADJ 311 . Paragraph No. 32 of the aforesaid judgment is reproduced below:- "29. Penalty can be imposed, if there is an attempt to evade stamp duty. Penalty presupposes culpability and an intention to conceal or to play fraud with authorities. Before imposing penalty, authorities must record finding based on relevant material that the purchaser or the person liable to pay stamp duty had concealed relevant facts in execution of sale deed and had intention to evade payment of stamp duty. (Asha Kapoor (Smt.) v. Additional Collector (Finance and Revenue), Ghaziabad)." 6. In view of the above, the order dated 30.11.2006 passed by the Collector so far as it imposes a penalty of Rs. 82,632/-on the petitioner is contrary to law and is liable to be set aside. 7. For the aforesaid reason, the orders dated 30.11.2006 and 20.3.2007 passed by the Collector and the Commissioner so far as they impose penalty of Rs. 82,632/-on the petitioner are hereby set aside. 82,632/-on the petitioner is contrary to law and is liable to be set aside. 7. For the aforesaid reason, the orders dated 30.11.2006 and 20.3.2007 passed by the Collector and the Commissioner so far as they impose penalty of Rs. 82,632/-on the petitioner are hereby set aside. However, the orders dated 30.11.2006 and 20.3.2007 passed by the Collector and the Commissioner so far as they hold that there was a deficiency in payment of stamp duty on sale-deed dated 11.2.2005 are upheld and challenge to the same, to the aforesaid extent, is rejected. 8. The writ petition is disposed of accordingly.