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Allahabad High Court · body

2023 DIGILAW 2036 (ALL)

Ajay Bahadur v. State of U. P.

2023-08-23

PRAKASH PADIA

body2023
JUDGMENT : Prakash Padia, J. The petitioner has preferred the present petition inter alia with the following prayer : ''i- issue a writ order or direction in the nature of certiorari calling the records of the case and quash the orders dated 29-05-2015 passed by Chief Revenue Controlling Authority, Allahabad passed in Stamp Appeal No. 46 of 2012-13 and order dated 31-10-2012 passed in case No. 45/2012-13 State v. Shri Ajay Bahadur Prasad by learned Additional Collector finance and revenue/stamp collector Jhansi District-Jhansi (Annexed as Annexures 1 and 2 to the writ petition).'' 2. The facts of the present case are that by means of the registered sale-deed dated 2.6.2010, the petitioner has purchased a land, having total area 2.492 hectare (equivalent to 24290 sq.meters) of plot No. 537/5(MIN) of khata No. 00065,00190,00011, situated at village Pali, Pahari block Babina, Dstrict-Jhansi. On the said land, a construction was existing i.e. six rooms. The total covered area was 95-62 sq meters. The plots in dispute were recorded as agricultural land and no declaration under Section 143 of the U.P. Z.A. and L.R. Act have been made. 3. An audit objection was made by the Accountant General Uttar Pradesh on 30.11.2010, copy of the audit report dated 30.11.2010 had not been served upon the petitioner. 4. In pursuance of the audit objection, a notice was issued to the petitioner on 27.4.2011 for initiating the proceeding under Section 33/47-A of the Indian Stamp Act 1899, of which the petitioner has filed his objection dated 22.6.2011 with the copy of khasra mention therein that the land in dispute is agricultural land. 5. The respondent No. 2- Additional Collector Finance and Revenue, Jhansi passed an order dated 31.10.2012 imposing the deficiency of the stamp duty of Rs. 17,84,500/- and penalty of Rs. 17,84,500/- alongwith 1.5% of simple interest from the execution of the sale-deed. 6. Aggrieved by the order dated 31.10.2012 passed by the respondent No. 2- Additional Collector Finance and Revenue, Jhansi, the appellant/petitioner decided to prefer stamp appeal under Section 56 of the Indian Stamp Act, 1899 before the Court of Chief Controlling Authority, Board of Revenue U.P. at Allahabad (respondent No. 3). The same was numbered as Stamp Appeal No. 46/2012-13. While filing the appeal 1/3rd amount i.e.Rs. 14,57,342/-, was deposited by the petitioner as per mandatory provisions of the Act. 7. The same was numbered as Stamp Appeal No. 46/2012-13. While filing the appeal 1/3rd amount i.e.Rs. 14,57,342/-, was deposited by the petitioner as per mandatory provisions of the Act. 7. The said appeal has been dismissed by the appellate authority by the order dated 29.5.2015. Aggrieved against the aforesaid, the petitioner has preferred the present petition. 8. It is argued by learned counsel for the petitioner that the land in dispute was recorded as agricultural holding on the date of execution of sale-deed, which is clear from khasra as well as sale-deed dated 2.6.2010 annexed as Annexure (1) to the supplementary-affidavit. It is further argued that the declaration under Section 143 of U.P. Z.A. & L.R. Act was not made on the date of execution of the sale-deed and the land was recorded as agricultural land, therefore, the stamp duty only be charged according to rate applicable for agricultural holdings. It is next argued that it is mentioned in the sale-deed itself that separate stamp duty for the construction existing over the plot in dispute has been paid for executing the sale-deed. It is also argued that no spot inspection has been made by the authorities and the entire judgment is based on ex parte audit report. It is further argued that wholly illegally, without giving any specific reason, excessive amount of penalty has been imposed upon the petitioner. Learned counsel for the petitioner has placed reliance upon several judgments of this Court. 9. On the other hand, learned Standing counsel appearing on behalf of the State submits that the impugned orders passed by the concerned authorities are absolutely perfect and valid orders, the provisions of Section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 are irrelevant for the purposes of deciding the chargeability of stamp duty at this point of time. Learned Standing Counsel, therefore, submits that the orders impugned do not require any interference. 10. Heard Sri Ram Kishore Pandey, learned counsel for the petitioner, Sri Vijay Shankar, learned Chief Standing counsel appearing on behalf of the State, I find that non-declaration of land as Abadi under Section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 is an admitted fact. 10. Heard Sri Ram Kishore Pandey, learned counsel for the petitioner, Sri Vijay Shankar, learned Chief Standing counsel appearing on behalf of the State, I find that non-declaration of land as Abadi under Section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 is an admitted fact. The contention of the State to the effect that the said non-declaration is not relevant in the proceedings under the Indian Stamp Act cannot be accepted for the reason that in exercise of statutory powers under the Indian Stamp Act, as applicable in the State of U.P., Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 have been framed. Rule 3(1)(a) of the Rules, provide as follows : ''Facts to be set forth in an instrument.-In case of an instrument relating to immovable property chargeable with an ad valorem duty, the following particulars shall also be fully and truly stated in the instrument in addition to the market value of the property- (1) In case of land- (a) included in the holding of a tenure-holder, as defined in the law relating to land tenures- (i) the Khasra number and area of each plot forming part of the subject-matter of the instrument; (ii) whether irrigated or unirrigated and if irrigated, the source of irrigation; (iii) if under cultivation whether do-fasali or otherwise; (iv) land revenue or rent whether exempted or not and payable by such tenure-holder; (v) classification of soil, supported in case of instruments exceeding twenty thousand rupees in value, by the certified copies, or extracts from the relevant revenue records issued in accordance with law; (vi) location (whether lies in an urban area, semi-urban area, or countryside); and (vii) minimum value fixed by the Collector of the district.'' 11. Admittedly, on the date of execution of the sale-deed, the provisions of U.P. Zamindari Abolition & Land Reforms Act, 1950 were applicable. The definition of ''land'' as contained under Section 3(14) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, reads as follows : (14) ''Land''[except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming; 12. The definition of ''land'' as contained under Section 3(14) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, reads as follows : (14) ''Land''[except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming; 12. In view of the definition of land contained in the law relating to land tenures, i.e. U.P. Zamindari Abolition & Land Reforms Act, 1950, the fact that the land was not declared as Abadi under Section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 as explained under Section 3(14) of the said Act, is itself becomes a relevant factor for determining the nature of land that was subject-matter of instrument. This Court in various authorities has held that when the land is purchased for agricultural purposes and declaration under Section 143 of the U.P. Z.A. & L.R.Act, 1950 has not been made and merely because there is some construction i.e. six rooms over the land, the same would not loose its character as the agricultural land for the purposes of levy of stamp duty. Reference can be made to few authorities of this Court in the case of Aniruddha Kumar and Ashwini Kumar v. Chief Controlling Revenue Authority, U.P. Allahabad and another, 2000 (3) AWC 2587 ; Smt. Sushila Verma v. State of U.P. and others, 2006 (1) ADJ 245 and Sudama v. Chief Controlling Authority and others, 2012 (10) ADJ 523 . 13. Moreover, had the allegation of the State been to the effect that though the land was purchased for agricultural purposes, but its user was immediately changed and on the date of sale-deed, it was being used for any other purpose like, industrial, commercial or even residential, the situation would have been different. Even in those situations, spot inspection at the relevant point of time was a necessity, but, admittedly, in the present case, no spot inspection has been carried out. Necessity of spot inspection and its mandatory nature, with reference to Rule 7 (3) (c) of the aforesaid Rules of 1997, has been reiterated, time and again by this Court in various authorities including Ajay Agarwal and others v. Commissioner Lucknow and others, 2023 (2) ADJ 561 (LB), and Ram Khelawan alias Bachcha v. State of U.P. and another, 2005 (2) AWC 1087 . 14. 14. The observations/findings recorded in the orders impugned are also contrary to principles of burden of proof particularly, in a case where proceedings arise out of a fiscal statute. Once the State was proceeding to impose deficient stamp duty upon the petitioner, the entire burden lay upon the State to establish beyond reasonable doubt that the petitioner made some concealment at the time of getting the sale-deed executed in his favour or that within a close proximity of dates, the user of the land in dispute was changed so as to levy additional stamp duty. Nothing to this effect has been brought on record, rather, not only the findings recorded in the orders impugned are contrary to the provisions of the Indian Stamp Act, 1899, as applicable in the State of U.P. as well as U.P. Stamp (Valuation of Property) Rules, 1997, but certainly contrary to the law consistently laid down by this Court. 15. Insofar as the imposing one time penalty is concerned, it is well-settled that unless ''mens rea'' is established on the part of the purchaser, no penalty can be imposed, even if the provision of penalty is a creation of statute. Regarding imposition of penalty, reference can be made to a judgment of this Court in the case of Smt. Asha Kapoor v. Additional Collector (Finance & Revenue), Ghaziabad and others, 2008 (4) ADJ 667 , where this Court has held that penalty can be imposed if there is an attempt to evade the stamp duty and penalty presupposes culpability and an intention to conceal or to play fraud with the authorities. I do not find any finding on record, whereunder any opinion has been formed by the respondent-Authorities that the petitioner defrauded the Government having mens rea at the time of getting the sale-deed executed. Even the annexures of the writ petition disclosing the nature of land have not been disputed by the State in the counter-affidavit. I also find that the sale-deed in question conforms to the statutory requirements of disclosure of necessary particulars as per rule 3(1)(a) of the Rules of 1997. Therefore, imposition of penalty is also contrary to law of the land. 16. I also find that the sale-deed in question conforms to the statutory requirements of disclosure of necessary particulars as per rule 3(1)(a) of the Rules of 1997. Therefore, imposition of penalty is also contrary to law of the land. 16. Learned Standing Counsel submits that in case, non-conduct of the spot inspection is treated as an illegality behind passing of the orders impugned, the matter may be remanded to the authorities for conducting or getting conducted spot inspection and then pass a fresh order. 17. However I find that no fruitful purpose would be served in remanding the matter to the Authorities and infact remand in this case would be a futile exercise for the reason that the instrument in question was executed on 2.6.2010 and it is well-settled that chargeability of the stamp duty has to be examined with reference to the date of execution of instrument. Proposition to this effect has been consistently laid down by this Court in various authorities including Shahid Ali v. Commissioner Bareilly Division Bareilly and others, 2013 (6) ADJ 425 and Har Charan Lal Ice & Cold Storage Pvt. Ltd. v. State of U.P. and others, 2012 (7) ADJ 537 . Therefore, the insistence of learned Standing Counsel regarding remand is liable to be rejected, also for the reason that if inspection is carried out today, i.e. in the year 2023 that would be wholly irrelevant for the purposes of determination of stamp duty on the date of execution of sale-deed i.e. 2010. Therefore, such spot inspection would neither be of any significance nor relevant for the purposes of deciding the matter. 18. The same view was also taken by the co-ordinate Bench of this Court in its judgment and in Raj Kumar v. State of U.P. and others, 2023 (5) ADJ 676 . 19. In view of above, the writ petition succeeds and is allowed. 20. The order dated 29.5.2015 passed by respondent No. 3- Chief Revenue Controlling Authority, Prayagraj in Stamp Appeal No. 46 of 2012-13 and order dated 31.10.2012 passed by respondent No. 2- Additional Collector Finance and Revenue/Stamp Collector, Jhansi are hereby quashed by issuing a writ of Certiorari. 21. 19. In view of above, the writ petition succeeds and is allowed. 20. The order dated 29.5.2015 passed by respondent No. 3- Chief Revenue Controlling Authority, Prayagraj in Stamp Appeal No. 46 of 2012-13 and order dated 31.10.2012 passed by respondent No. 2- Additional Collector Finance and Revenue/Stamp Collector, Jhansi are hereby quashed by issuing a writ of Certiorari. 21. A writ of Mandamus is also issued to the effect that any amount deposited by the petitioner either prior to filing of this writ petition or in pursuance of any interim order passed in the present case, shall be refunded to the petitioner alongwith simple interest at the rate of 6% per anum from the date of its deposit till the date of actual payment, within a period of three months, on moving appropriate application by the petitioner alongwith certified copy of this order before the authority concerned.