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2021 DIGILAW 1385 (ALL)

Rajiv Kumar Gupta v. State of U. P.

2021-11-22

JAYANT BANERJI

body2021
JUDGMENT : Hon'ble Jayant Banerji, J. 1. Heard Shri A.P. Paul, learned counsel for the petitioner and Shri Awadesh Chandra Srivastava, learned Standing Counsel appearing for the respondents. 2. This petition has been filed for quashing the order dated 04.10.2007 passed by the Assistant Commissioner Stamp, Aligarh under Section 47-A(3) of the Indian Stamp Act, 1899[Act] whereby value with regard to certain constructions existing on the property in question has been assessed at Rs.8,92,000/-and deficiency in stamp at Rs.89,080/-. Further challenge is to the order dated 17.06.2010 passed by the Additional Commissioner, Agra Division, Agra in Revision No.43/24.4.2009 under Section 56(1) of the Act whereby the revision of the petitioner has been dismissed and the order of the Assistant Commissioner has been upheld. 3. A perusal of the petition reveals that the property in question was leased to the petitioner by means of a lease-deed of 08.03.2006, that is stated to be registered on 23.03.2006. The lease-deed reflects that the usage of the leased premises was for setting up a petrol pump/outlet of a Petroleum Company. It appears that a notice dated 19.05.2006 was issued to the petitioner pursuant to proceedings under Section 47-A(3) of the Act. The petitioner filed a reply/objection on 27.02.2007 and also filed an application on 04.10.2007 asking for a fresh inspection of the site in question. Thereafter, the impugned order dated 04.10.2007 was passed by the Assistant Commissioner Stamp relying upon a spot inspection report said to have been prepared by the Sub-Registrar concerned. 4. It is contended by the learned counsel for the petitioner that assuming that an inspection report was on record, the same could not have been relied upon as evidence by the authorities to assess the factual situation on the ground inasmuch as the report was ex-parte and it led to the initiation of the proceedings under Section 47-A(3) of the Act. It is contended that the assessing authority had not undertaken any exercise for calculation of the valuation of the leased land, but merely referred to some alleged constructions on the site and calculated the value and assessed the stamp duty payable thereon at the rate of 10% in disregard to the provisions of Article 35(v) of Scheduled 1-B of the Act. It is also contended that at the time of execution of the lease-deed, the property in question was vacant without any boundary wall and no constructions were existing thereon. It is, therefore, contended that the order passed by the Assistant Commissioner Stamp is wholly illegal and contrary to the provisions of the Act. 5. Shri Srivastava, learned Standing Counsel has strongly opposed the petition and has urged that the report of the Sub-Registrar was made on 04.04.2006 after making a spot inspection of the site in question, as is reflected in paragraph 4 of the order passed by the Additional Commissioner, Agra Division, Agra in the revision. It is his contention that the spot inspection report was prepared within a month of the execution of the lease-deed and, therefore, the constructions reflected on the site in question were correctly taken notice of by the authority, who has passed the order impugned. 6. The points arising for consideration are whether the deficiency in stamp duty based on the assessment of valuation of the constructions made at the site in question was justified, and, whether the authority was justified in assessing the valuation of the constructions without recording a finding as to their existence on the date of execution of the lease-deed. 7. As noticed above, the spot inspection of the site in question was undertaken on 04.04.2006, that is to say, within a month of the execution and registration of the lease-deed in question. The express future usage of the land in question was for a commercial purpose and the lease-deed so executed, duly reflected the same. There is no document on record to demonstrate that any spot inspection was done after the initial inspection was made by the Sub-Registrar on 04.04.2006. An application dated 04.10.2007 filed by the petitioner is on record, which is unrebutted, which shows that the petitioner had moved an application for getting a spot inspection done. In the counter affidavit filed on behalf of the respondents, the existence and the receipt of the application dated 04.10.2007 have not been denied. In the order of the Assistant Commissioner Stamp, there is no reflection of any consideration of the application of 04.10.2007. The order impugned dated 04.10.2007 also does not reflect that there existed any dispute with regard to the sufficiency of the stamp duty paid on the instrument in question. In the order of the Assistant Commissioner Stamp, there is no reflection of any consideration of the application of 04.10.2007. The order impugned dated 04.10.2007 also does not reflect that there existed any dispute with regard to the sufficiency of the stamp duty paid on the instrument in question. The assessment made by the officer merely relies upon the valuation of the constructions purportedly made at the site in question. It is important to note that in the instrument in question, there is no assertion regarding existence of any constructions over the site in question. The express purpose of the lease was commercial, which was for setting up a petrol pump. A prudent businessman who takes on lease a particular land for a business, in the natural course of events, is purpose is expected to forthwith proceed with making developments over that land for fullfilment of his business objectives. Therefore, it cannot be denied that the petitioner in furtherance of his intention to set up a petrol pump, may have made constructions over the site in question. However, there is no material to demonstrate that the constructions were existing on the leased premises at the time of execution of the lease-deed. 8. Under the circumstances, the order dated 04.10.2007 assessing valuation of constructions made over the leased premises at Rs.8,92,000/-and assessing stamp duty thereon at the rate of 10% cannot be sustained and is hereby quashed. The subsequent order passed in the revision on 17.06.2010, being only an iteration of the considerations weighing in the mind of the Assistant Commissioner Stamp while passing the order under Section 47-A(3) of the Act, cannot be sustained for the same reason, and is hereby quashed. 9. This writ petition is, accordingly, allowed. 10. Any deposit made by the petitioner towards deficiency in stamp duty etc. after the execution of the lease-deed in question, shall be refunded to the petitioner within a period of two months from today alongwith simple interest at the rate of 8% per annum.