JUDGMENT Hon’ble Siddhartha Varma, J.—Heard learned counsel for the parties. 2. The instant writ petition has been filed by the petitioners for quashing the order dated 21.12.2005 passed by respondent No. 1, Chief Controlling Revenue Authority/Commissioner Bareilly-Division-Bareilly and the order dated 11.8.2004 passed by respondent No. 2, Additional Collector (Finance and Revenue), Bareilly. 3. After a sale-deed was executed and registered on 20.10.2003, the petitioners had applied for mutation where, on the basis of the statement made by the seller before the Tehsildar in the mutation proceedings on 7.4.2004, the matter was referred by the Tehsildar to the Collector under Section 47(A)(iii) of the Stamp Act. The Collector thereupon, believing the statement made by the seller, found a deficiency of Rs. 81,600/-. He also imposed a penalty of Rs. 50,000/-. Aggrieved thereof the petitioners filed an appeal, which was also dismissed on 22.12.2005. The instant writ petition has been filed against the orders dated 11.8.2004 and 21.12.2005. 4. Learned counsel for the petitioners has in effect made two submissions which are follows : (i) The stamp duty had to be assessed on the market value of the property and since the market value was found to be Rs. 12,80,000/- he had paid the stamp duty on that amount and that the excess stamp duty, which was being charged on the statement made by the seller before the mutation Court could not have been charged at all. Since the market value itself was the determining factor any excess amount which had been changed by the seller, if at all, could not be taken into account for the purposes of calculating the stamp duty. (ii) Further, if there was any payment made in excess of the market value and if it was to be held that it was actually paid to the seller then it could not be done only on the basis of a statement made by the seller. The evidence as was brought by the buyer should also have been considered in its correct prospective. The buyer should have been allowed to lead his evidence. He should have been permitted to cross-examine the seller and his witnesses and only after it was determined in accordance with law that the buyer had paid more than the amount which was mentioned in the sale-deed, i.e. more than even the market value, should the deficiency be calculated. The buyer should have been allowed to lead his evidence. He should have been permitted to cross-examine the seller and his witnesses and only after it was determined in accordance with law that the buyer had paid more than the amount which was mentioned in the sale-deed, i.e. more than even the market value, should the deficiency be calculated. He submits that such ex parte statement of the seller could not have been made the basis for increasing the sale consideration. Learned counsel for the petitioners has specifically relied upon paragraph 10 of the judgement in Amit Kumar Tyagi and another v. State of U.P. and others, 2014(2) ADJ 782 , and so the same is being reproduced here asunder : “The term “market value” has not been defined under the Act. However there are some precedents laying down certain guidelines as to how and what manner a market value would be determined. The consensus opinion is that the market value of any property is the price which the property would fetch or would have fetched if sold in the open market, if sold by a willing seller, unaffected by the special need of a particular purchaser. It is interesting to note that the Act provides first for determination of minimum value of the property and further says that if the market value of the property set forth in the instrument is less than the minimum value determined under the Act, in such case before registering the instrument the registering authority shall refer the instrument to Collector for determination of market value of the property and the proper duty payable thereon and when the Collector determines market value of the property thereafter the parties shall proceed accordingly. Therefore, a market value of the property in all cases cannot be said to be higher than the alleged minimum value determined under the rules by the concerned authority, inasmuch as, it is only a kind of guideline provided to the authorities for the purpose of considering as to whether the proper stamp duty is being paid by setting forth true market value of the property in question in the instrument. The entire object of legislature in the various provisions of the Act is to require the parties concerned to set forth correct market value of the property at which the transaction has taken place so that appropriate duty in accordance with the Act is paid by them. The various provisions with respect to minimum value etc. are only in aid and assistance of the authorities to find out the true amount of consideration on which the parties have entered into transaction so that the correct duty is collected therefrom.” 5. Learned Standing Counsel in reply, however, has submitted that as per Article 23 of the Schedule 1(B) of the Indian Stamp Act, 1899, stamp duty had to be imposed on the value as set forth in the conveyance or on the market value of the immovable property which is the subject of conveyance, which ever was higher. In this regard learned Standing Counsel read out the Article 23(a) of the Indian Stamp Act,1899, which is reproduced here asunder : “if relating to immovable property where the amount or value of the consideration of such conveyance as set forth therein or the market value of the immovable property which is the subject of such conveyance, whichever is greater.” 6. Learned Standing Counsel has further drawn the attention of the Court to the provisions of Section 27 of the Indian Stamp Act, 1899 and has submitted that all facts and circumstances which affect the chargeability of any instrument have to be truly set forth in it. He further submitted that a bare reading of Section 27 of the Indian Stamp Act, 1899 shows that the actual amount paid by the buyer had to be shown in the instrument, which was being registered. He submits that if in any proceeding it is found that more amount had been paid than had been recorded in the instrument then the authorities were free to recover the deficiency. Section 27 of the Indian Stamp Act, 1899 was read out by the learned counsel and so the same is being reproduced here asunder : 27. Facts affecting duty to be set forth in instrument [(1)] The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein. Facts affecting duty to be set forth in instrument [(1)] The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein. (2) In the case of instruments relating to immovable property chargeable with an ad valorem duty on the value of the property, and not on the value set forth, the instrument shall fully and truly set forth the annual land revenue in the case of revenue paying land, the annual rental or gross assets, if any, in the case of other immovable property the local rates, Municipal or other taxes, if any, to which such property may be subject, and any other particulars which may be prescribed by rules made under this Act. 7. Having heard the learned counsel for the parties, I am of the view that stamp duty chargeable on an instrument was to be calculated on the market value or on the amount, which was actually paid by the buyer to the seller, whichever was higher. 8. In the instant case, therefore, if the authorities charged the instrument at the rate at which the property was sold then no fault can be found with it. However, the manner in which the Collector had ex parte believed the version of the seller was not correct. When the statement was made by the seller before a mutation Court that the property was in fact sold at a price higher than the price which had been given out in the sale-deed then the Collector should not have believed the seller outright. The proper course should have been that the should have allowed the parties to lead evidence and after hearing them should have reached a conclusion as to whether the price given out in the instrument was correct or the price which the seller was saying he had received was correct. 9. Under such circumstances, the order of Collector dated 11.8.2004 cannot be sustained. 9. Under such circumstances, the order of Collector dated 11.8.2004 cannot be sustained. The Collector, on the statement and the affidavit of the seller has believed, ex parte, that the actual price paid to him was higher than the market value and had, without allowing the buyer to rebut the seller’s stand concluded that the property had been sold at a price more than what the market value was and had been mentioned in the sale-deed. This was patently illegal. The Collector ought to have allowed the parties to lead evidence and thereafter should have concluded as to what was the actual price paid. The orders impugned dated 11.8.2004 passed by the Additional Collector (Finance and Revenue) Bareilly and the order dated 21.12.2005 passed by the respondent No. 1, Chief Controlling Revenue Authority/Commissioner, Bareilly-Division-Bareilly, are quashed. The matter is remanded back to the Collector, who shall now decide the matter afresh in the manner mentioned above in this order within a period of two months from the presentation of certified copy of this order. 10. Accordingly, the writ petition is partly allowed.