Allahabad High Court
Hari Narain Shukla vs State Of U.P. Through Its Secy.Deptt.Of ... on 8 February, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 19 Case :- WRIT - C No. - 1000609 of 2003 Petitioner :- Hari Narain Shukla Respondent :- State Of U.P. Through Its Secy.Deptt.Of Revenue And Ors. Counsel for Petitioner :- G.M.Kamil Counsel for Respondent :- C.S.C.,Pt. S. Chandra Hon'ble Manish Mathur,J.
1. Heard Mr. G.M. Kamil, learned counsel for petitioner and Mr. Devendra Mohan Shukla as well as Mr. Ajay Kumar Singh, learned State Counsel on behalf of opposite parties.
2. Petition has been filed challenging order dated 09.08.2002 impounding sale deed dated 12.08.1985 executed in favour of petitioner, under Section 33 of the Indian Stamp Act,1899 (hereinafter referred to as the Act of 1899). Also under challenge is order dated 17.02.2003 rejecting petitioner's preliminary objections regarding maintainability of proceedings under the Act of 1899. Further prayer for quashing entire proceedings initiated under Sections 33/40 of the Act of 1899 has also been sought.
3. Learned counsel for petitioner submits that a sale deed was executed in favour of petitioner by means of an unregistered instrument of transfer dated 12.08.1985. It is submitted that subsequently a suit for declaration under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (herein after referred to as the Act of 1950) was filed by petitioner and registered as Case No.87. It is submitted that aforesaid suit was decreed vide judgment and order dated 17.05.2002 whereafter an application for recall was filed and by means of order dated 20.08.2002, the initial judgment and order dated 17.05.2002 was recalled. It is submitted that proceedings thereafter ensued in aforesaid declaration suit but he does not have any instructions with regard to its current status.
4. It has been submitted that in the meantime since judgment and decree dated 17.05.2002 was passed on the basis of an unregistered sale deed dated 12.08.1985, the same was impounded under Section 33 of the Act of 1899 and an authenticated copy of the same was forwarded to the authority concerned by means of reference order dated 09.08.2002 whereafter proceedings under Section 47-A read with Sections 33 and 40 of the Act were instituted against petitioner numbered as Case No.318/343/2002. It is submitted that a preliminary objection was filed by petitioner with regard to maintainability of aforesaid proceedings primarily on the ground that such proceedings cannot be initiated after a period of four years from the date of execution of the deed as provided in proviso to Section 33 (5) of Act of 1899. Second ground taken in the objections was that since the petitioner did not derive any benefit from aforesaid deed, stamp duty even otherwise was not payable. Third objection taken was that in referal order dated 09.08.2002, the deficiency of stamp duty has been wrongly indicated since valuation as per year 2002 was recorded instead of valuation as on the date of execution of the instrument.
5. It is submitted that aforesaid submissions as raised by petitioner has been rejected by means of impugned order dated 17.02.2003 primarily on the ground that limitation of four years for initiation of proceedings from the date of execution of the instrument would not be applicable in the present case since the instrument after execution was never presented before any authority and was kept hidden by petitioner and as such limitation would be applicable only from the date of presentation of document. The order also states that since the document was produced only in year 2002, there is no error in the valuation recorded taking year 2002 as the year for indicating deficiency in stamp duty.
6. Learned counsel for petitioner submits that in passing impugned order, the authority concerned has come to an erroneous conclusion particularly with regard to applicability of limitation period since such a limitation has been clearly indicated in Section 33 of the Act under which the document itself was impounded and therefore no cogent reason has been indicated in impugned order for inapplicability of limitation period. It is also submitted that no reason at all has been indicated for taking the valuation of deed with effect from the year 2002 and not from the date of its execution in August, 1985. The authority has also not adverted to the fact that no benefit has been derived by petitioner from the aforesaid deed.
7. Mr. Devendra Mohan Shukla, learned State Counsel appearing on behalf of opposite parties while refuting submissions advanced by learned counsel for petitioner has submitted that limitation period of four years as provided in the proviso to Section 33(5) of the Act of 1899 would be inapplicable in the present case since impounding has taken place in terms of Section 33(1) of the Act of 1899 and therefore the procedure as indicated in Section 38 of the Act of 1899 would be applicable instead of the procedure indicated in Section 33(4) of the Act of 1899. Since Section 38 of the Act of 1899 does not provide for any limitation period, no error has been committed by authority concerned in rejecting the said submission of petitioner. It is submitted that even otherwise, once a document for transfer of immovable property has been executed and is not presented either for registration or before any public authority, no knowledge with regard to such execution can be obtained by revenue authorities and therefore in the alternative, the provision of limitation of four years should be made applicable from the date of knowledge of the document and not from the date of its execution.
8. It has been further submitted that once petitioner had filed a suit for declaration and the same was decreed on the basis of an unregistered sale deed dated 12.08.1985, clearly the petitioner has already derived benefit from aforesaid instrument and as such also submissions of learned counsel for petitioner on that account were rightly rejected. It is also submitted that petitioner has also admitted in paragraph-4 of writ petition that petitioner is deriving title and possession over the property in question on the basis of the said sale deed dated 12.08.1985. It has also been submitted that since the deed was kept hidden from authorities for seventeen years and was produced in declaratory proceedings only in year 2002, no error has been committed in taking valuation from year 2002 instead of year 1985.
9. For the proper adjudication of the present dispute, the following questions would require adjudication:-
(i) Whether the limitation period of four years as prescribed in the Proviso to Section 33(5) of the Act of 1899 would be applicable in cases where document is impounded under Section 33(1) of the Act of 1899?
(ii) Whether in case limitation period as provided under Section 33(5) of the Act of 1899 would be applicable, it would be applicable from the date of execution of an instrument of transfer or from the date when it is produced in proceedings as indicated under Section 33(1) or 33(4) of the Act of 1899?
(iii) Whether proceedings against an assessee can be initiated in terms of Section 33/40/47A of the Act of 1899 when he has not derived any benefit from an unregistered instrument of transfer?
(iv) Whether valuation of instrument of transfer and deficiency of stamp duty thereon is to be assessed as on date of execution of instrument or when it is impounded?
10. Upon consideration of submissions advanced by learned counsel for the parties, it is evident and admitted that a sale deed was executed in favour of petitioner pertaining to immovable property on 12.08.1985. The aforesaid document was never produced for registration or even in any other proceedings before any public authority prior to its production in declaratory proceedings in year 2002 whereupon the court concerned finding it to be unstamped, impounded the same under Section 33(1) of the Act of 1899 and made a Reference vide order dated 09.08.2002 to the Prescribed Authority for proceedings under Sections 40 & 47A of the Act of 1899. A perusal of order dated 09.08.2002 indicates that valuation of the deed has been taken as on 17.05.2002 and deficiency of stamp duty has been indicated in the referal order whereafter an authenticated copy of instrument of transfer has been sent to the Prescribed Authority for initiating proceedings against petitioner under relevant provisions of the Act.
Question (i): Whether the limitation period of four years as prescribed in the Proviso to Section 33(5) of the Act of 1899 would be applicable in cases where document is impounded under Section 33(1) of the Act of 1899?.
11. For the aforesaid purpose, it is relevant to advert to Sections 33, 38 and 47A of the Act of 1899 which are as follows:-
"33. Examination and impounding of instruments - (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed :
Provided that--
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Section 125 to 128 and sections 145 to 148 of the Code of Criminal Procedure, 1898 (5 of 1898)12;
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, the State Government may, in cases of doubt, determine what offices shall be deemed to be public offices and who shall be deemed to be persons-in-charge of public offices.
(4) Where deficiency in stamp duty paid is noticed from the copy of any instrument, the Collector may suo motu or on a reference from any Court or from the Commissioner of Stamps or an Additional Commissioner of Stamps or a Deputy Commissioner of Stamps or an Assistant commissioner of Stamps or any officer authorised by the Board of Revenue in that behalf, call for the original instrument for the purpose of satisfying himself as to the adequacy of the duty paid thereon, and the instrument so produced before the collector shall be deemed to have been produced or come before him in the performance of his functions.
(5) In case the instrument is not produced within the period specified by the Collector, he may require payment of deficit stamp duty, if any together with penalty under Section 40 on the copy of the instrument.
Provided that no action under sub-section (4) or sub-section (5) shall be taken after a period of four year from the date of executionn of the instrument Provided further that with the prior permission of the State Government an action under sub-section (4) or sub-section (5) may be taken after a period of four years but before a period of eight years from the date of execution of the instrument. "
"38. Instruments impounded, how dealt with -(1) When the person impounding an instrument under section 33 has by law or consent of parties, authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector."
"47A. Under-valuation of the instrument - (1) (a) If the market value of any property which is the subject of any instrument, on which duty is chargeable on the market value of the property as set forth in such instrument, is less than even the minimum value determined in accordance with the rules made under this Act, the registering officer appointed under the Registration Act, 1908 shall, notwithstanding anything contained in the said Act, immediately after presentation of such instrument and before accepting it for registration and taking any action under Section 52 of the said Act require the person liable to pay stamp duty under Section 29, to pay the deficit stamp duty as computed on the basis of the minimum value determined in accordance with the said rules and return the instrument for presenting again in accordance with Section 23 of the Registration Act, 1908.
(b) When the deficit stamp duty required to be paid under clause (a), is paid in respect of any instrument and the instrument is presented again for registration, the registering officer shall certify by endorsement thereon, that the deficit stamp duty has been paid in respect thereof and the name and the residence of the person paying them and register the same.
(c) Notwithstanding anything contained in any other provisions of this Act, the deficit stamp duty may be paid under clause (a) in the form of impressed stamps containing such declaration as may be prescribed.
(d) If any person does not make the payment of deficit stamp duty after receiving the order referred to in clause (a) and presents the instrument again for registration, the registering officer shall, before registering the instrument, refer the same to the Collector, for determination of the market value of the property and the proper duty payable thereon.
(2) On receipt of a reference under sub-section (1) the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an inquiry in such manner as many be prescribed by rules made under this Act, determine the market value of the property which is the subject of such instrument and the proper duty payable thereon.
(3) The Collector may, suo motu, or on a reference from any court or from the Commissioner of Stamps or an Additional Commissioner of Stamps or a Deputy Commissioner of Stamps or an Assistant Commissioner of Stamps or any officer authorized by the State Government in that behalf, within four years from the date of registration of any instrument on which duty is chargeable on the market value of the property not already referred to him under sub-section (1) call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject for of such instrument, and the duty payable thereon and if after such examination he has reason to believe that market value of such property has not been truly set forth in such instrument, he may determine the market value of such property and the duty payable thereon :
Provided that, with the prior permission of the State Government, an action under this sub-section may be taken after a period of four years but before a period of eight years from the date of registration of the instrument on which duty is chargeable on the market value of the property.
Explanation : The payment of deficit stamp duty by any person under any order of registering officer under sub-section (1) shall not prevent the Collector from initiating proceedings on any instrument under sub-section (3).
(4) If on enquiry under sub-section (2) and examination under sub-section (3) the Collector finds the market value of the property :
(i) truly set forth and the instrument duly Stamped, he shall certify by endorsement that it is duly stamped and return it to the person who made the reference ;
(ii) not truly set forth and the instrument not duly stamped, he shall require the payment of proper duty or the amount required to make up the deficiency in the same, together with a penalty of an amount not exceeding four times the amount of the proper duty or the deficient portion thereof.
(4-A) The Collector shall also require along with the deficit stamp duty or penalty required to be paid under clause (ii) of sub-section (4), the payment of a simple interest at the rate of one and a half per cent per mensem on the amount of deficit stamp duty calculated from the date of the execution of the instrument till the date of actual payment;
Provided that the amount of interest under this sub-Section shall be recalculated if the amount of deficit stamp duty is varied on appeal or revision or by any order of a competent court or authority.
(4-B) The amount of interest payable under sub section (4-A) shall be added to the amount due and be also deemed for all purposes to be part of the amount required to be paid.
(4-C) Where realization of the deficit stamp duty remained stayed by any order of any court or authority and such order of stay is subsequently vacated, the interest referred to in sub-section (4-A) shall be payable also for any period during which such order of stay remained in operation.
(4-D) Any amount paid or deposited by or recovered from, or refundable to, a person under the provision of this Act, shall first be adjusted towards the deficit stamp duty or penalty outstanding against him and the excess if any, shall then be adjusted towards the interest, if any, due from him."
(5) The instrument produced before the Collector under sub-section (2) or under sub-section (3) shall be deemed to have come before him in the performance of his functions.
(6) In case the instrument is not produced within the period specified by the Collector, he may require payment of deficit stamp duty, if any, together with penalty on the copy of the instrument in accordance with the procedure laid down in sub-sections (2) and (4)."
12. A reading of Section 33(1) of the Act indicates certain authorities who have been granted the power to impound an instrument which is produced before them or comes in the performance of their functions and is not duly stamped. The procedure prior to its reference to Prescribed Authority is indicated in Section 33(2) of the Act while Sub-section (3) indicates the power of State Government to determine which offices would be deemed to be public offices.
13. A conjoint reading of Section 33(1) and Section 33(4) clearly brings out the distinction between aforesaid two provisions. While in Section 33(1), certain authorities have been granted the power to impound an instrument which is produced as evidence and is not duly stamped, sub-section (4) of Section 33 indicates the power of Collector where deficiency in stamp duty paid is noticed from a copy of instrument and where a Reference is made from court or authorities indicated therein. It is relevant that the provisions of Section 33(4) of the Ac of 1899 is only for the purpose of satisfaction of Collector with regard to adequacy of duty paid on instrument so produced and for that purpose only, the Collector has the power to call for original document. In case of applicability of Section 33(1) of the Act of 1899, the said satisfaction regarding adequacy of stamp duty is required to be seen by authorities indicated in the said sub-section itself and upon a conclusion that the instrument is not duly stamped, power to impound the same has been given. As such, the clear distinction between Subsections (1) and (4) of Section 33 of the Act of 1899 is that in sub-section (1), the authority before whom document is produced has been given the power to impound the same upon coming to satisfaction regarding inadequacy of stamp duty whereas under sub-section (4), the power to determine inadequacy of stamp duty has been conferred only upon the Collector without any power to impound the document.
The distinction between Section 33(1) and 33(4) read with Section 47-A(3) of the Act of 1899 also brings out distinction between the said provisions where Section 33(1) primarily pertains to an unstamped or under-valued instrument being produced as evidence. Even the period of limitation for initiation of proceedings under Section 33 and Section 47A(3) is quite distinct with Section 33(5) initiating limitation from the date of execution of instrument while Section 47-A(3) initiates the limitation period with effect from the date of registration of instrument.
14. The aforesaid distinction would be clearer upon a perusal of Sections 38 which clearly indicates the provision regarding procedure to be followed once instruments not duly stamped are impounded. Section 38(1) clearly indicates that in case the inadequacy of stamp duty is found by authority concerned, the said inadequacy of stamp duty is to be indicated by the said authority whereafter an authenticated copy of instrument is to be sent to Collector. Under Section 38(2) of the Act of 1899, in every other case, the instrument is to be sent in original to Collector. The distinguishing feature under Sub-sections (1) and (2) of Section 38 appear to be that an authenticated copy of instrument is required to be sent in terms of sub-section (1) where the deficiency of stamp duty has been calculated and where it has not been so calculated, the original instrument is required to be sent to Collector for further proceedings.
15. The distinction between Section 33(1) and Section 33(4) & (5) is also evident from a reading of Section 47A of the Act of 1899 which does not make any reference whatsoever to documents which have been impounded by designated authorities and only indicates the procedure to be followed by Collector himself under Section 47-A(2) & (3) of the Act of 1899.
16. Even otherwise, if it is held that Section 33(4) and (5) follow Section 33(1) of the Act of 1899, the same will render the provisions of Section 38 of the Act of 1899 otiose, which cannot be the intention of Legislature while enacting the particular provisions of the Act. As such it is evident that in cases where an instrument is produced as evidence which is not duly stamped and is impounded under Section 33(1) of the Act of 1899, the provision required to be followed is only under Section 38 and not under Sections 33(4) & (5) of the Act of 1899. As such, the limitation period provided under Section 33(5) of the Act would not be applicable in case proceedings are drawn under Section 33(1) of the Act and would be available only if proceedings are drawn by Collector under Section 33(4) of the Act of 1899.
17. In view of discussions made herein above, it being evident that the limitation period was not available to petitioner since his document had been impounded under Section 33(1) of the Act of 1899, the Question no.(i) is answered negatively against petitioner.
Question no.(ii): Whether in case limitation period as provided under Section 33(5) of the Act of 1899 would be applicable, it would be applicable from the date of execution of an instrument of transfer or from the date when it is produced in proceedings as indicated under Section 33(1) or 33(4) of the Act of 1899?
18. With regard to aforesaid aspect, it is evident that the proviso to Section 33(5) of the Act makes a specific stipulation that no action under Sub-sections (4) or (5) of the Act can be taken after a period of four years from the date of execution of the instrument. However, although the aforesaid provision is couched in negative terms, there may be a scenario as envisioned in the present case where a document is executed between the parties and is kept with them for a period of more than four years without its production before any of the designated authorities either under Section 33 or even under Section 47-A of the Act of 1899. The proviso does not take any such scenario into account but in the present case, it is clearly evident and admitted that although the instrument of transfer was executed on 12.08.1985, it was produced in declaratory proceedings for the first time in year 2002. In such circumstances, it cannot be said that revenue authorities would have any knowledge with regard to execution of any such unregistered and therefore unstamped instrument of transfer. Naturally, authorities cannot derive any such information regarding execution of unregistered documents between private individuals particularly in case where such documents are kept in safe custody of the executor or the beneficiary of the instrument without its production before any designated authority. In such circumstances, it cannot be said that the limitation period of four years under Proviso to Section 33(5) of the Act would be applicable from the date of execution of the instrument. In the considered opinion of this Court, in such cases where an instrument of transfer is not produced before any designated court or authority as envisioned under Sections 33 or 47-A of the Act of 1899, the aforesaid period of limitation would run from the date when such an unregistered instrument of transfer is first produced before any such designated authority.
19. Hon?ble the Supreme Court in Saibabba v. Bar Council of India and another reported in (2003) 6 SCC 186 has read down such strict provisions in following manner:-
"9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression ?the date of that order? as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart."
"10. An identical point came up for the consideration of this Court inRaja Harish Chandra Raj Singhv.Dy. Land Acquisition Officer[AIR 1961 SC 1500 : (1962) 1 SCR 676] . Section 18 of the Land Acquisition Act, 1894 contemplates an application seeking reference to the court being filed within six months from the date of the Collector's award. It was held that ?the date of the award? cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words ?the date of the award? occurring in the relevant section would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. The knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. A literal or mechanical way of construing the words ?from the date of the Collector's award? was held to be unreasonable. The Court assigned a practical meaning to the expression by holding it as meaning the date when the award is either communicated to the party or is known by him either actually or constructively."
"14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words ?the date of that order?, therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed."
20. Upon applicability of aforesaid judgment to the question framed, it is evident that limitation can only run from the date when a person becomes aware of any proceedings against such a person and not from the date of such proceedings or instrument as in the present one from its initiation or execution.
It is trite that revenue authorities cannot know about execution of any document which is not produced either as evidence in proceedings under Section 33 of the Act of 1899 or even for presentation under Section 47A of the Act of 1899 since they are not expected to know about execution of such document which after execution remain with either of the parties who may very well await passing of four years in order to avail themselves of the limitation period on a malafide basis.
21. In view of aforesaid discussion, no benefit can be derived by petitioner with regard to aforesaid limitation and Question no.(ii) as such is answered negatively against petitioner.
Question No.(iii): Whether proceedings against an assessee can be initiated in terms of Section 33/40/47A of the Act of 1899 when he has not derived any benefit from an unregistered instrument of transfer?
22. With regard to aforesaid question, learned counsel for petitioner has specifically submitted that although the sale deed was executed in favour of petitioner on 12.08.1985 but the suit for declaration under Section 229-B of the Act of 1950 initially decreed in favour of petitioner vide judgment and order dated 17.05.2002, did not bring any benefit to petitioner since aforesaid judgment and order was thereafter recalled vide order dated 20.08.2002. The submission as such is that when benefit of such an unregistered instrument was never provided to petitioner, there was no occasion to have initiated such proceedings.
23. Considering submissions advanced, it is evident from material on record that suit for declaration under Section 229-B of the Act of 1950 was filed primarily on the basis of sale deed dated 12.08.1985. The said proceedings also culminated in passing of a decree in favour of petitioner on 17.05.2002. As such, it can not be said that no benefit was derived by petitioner from the sale deed dated 12.08.1985. Even otherwise, there is no provision under the Act of 1899 that proceedings under Section 33/40/47A can be initiated only in case a person derives benefit from an unstamped or under-valued instrument of transfer. As such, the submissions of learned counsel for petitioner are clearly misconceived and therefore rejected.
24. Question no.(iii) as such is answered negatively against petitioner.
Question no.(iv): Whether valuation of instrument of transfer and deficiency of stamp duty thereon is to be assessed as on date of execution of instrument or when it is impounded?
25. Petitioner in his preliminary objection has clearly taken a plea that since the document was executed in August, 1985, the referral authority has erred in taking valuation of the instrument as of 2002. Learned counsel for petitioner has submitted that in case of proceedings being initiated under Section 33 or under Section 47A of the Act, deficiency in stamp duty is to be seen as per valuation of the instrument as on the date of execution thereof and not on the date it is presented or impounded.
26. With regard to aforesaid submission, it is evident that Section 33(2) of the Act stipulates that in order to ascertain adequate stamp duty having been paid, it is the date when the said instrument was executed or first executed, which would be relevant. Similarly, Section 47A(1)(a) prescribes that duty chargeable on the market value of a property is to be set forth in accordance with the rules made under the Act with Section 47A(4-A) also stipulating simple interest imposeable upon deficiency from the date of execution of the instrument, which is also in consonance with Section 40 of the Act of 1899. There does not appear to be any provision under the Act of 1899 where valuation or deficiency of stamp duty thereupon is required to be calculated from the date of presentation or impounding of the document.
27. In view of specific provisions of Section 33 of the Act of 1899 as indicated herein above, it is the considered opinion of this court that valuation of such under-valued or unstamped instrument and deficiency thereof is to be calculated as on the date of execution of the deed and not from the date when it is impounded or presented.
The said aspect has already been considered by a coordinate Bench of this court in Rajendra Prasad Garg v. Chief Controlling Revenue Authority and others reported in (2002) 93 RD 198 in the following manner:-
"6. Section 3 of the Indian Stamp Act provides for instrument which are chargeable with duty. Section 3 of the Act came to be considered and interpreted in the case of Sri Kirti Ram reported in AIR 1954 HP 51. In the said case, after perusing the relevant provisions of the Act, it was ruled as under:
"Now, the certificate of enrolment being an instrument falling under Article 30 of Schedule I, it is compulsorily chargeable with stamp duty under Section 3 of the Act. And since "chargeable" means, under Section 2(6) of the Act, chargeable when the instrument in question is executed, it is clear that the crucial date which determines the law in force is the date of the execution of instrument."
7. Sub-section (6) of Section 2 which defines the term chargeable, no amendment has been made by the State of Uttar Pradesh, therefore, the decision in the case of Sri Kirti Ram, (supra) is fully applicable to the facts of the present case. Similar view was taken by a Full Bench of Madras High Court in the case in ILR (5) Mad Series 394 (FB), wherein it was observed that duty should be calculated with reference to the requirement of law at the time of execution of the document."
28. Question no.(iv) as such is answered affirmatively in favour of petitioner.
29. In view of aforesaid, the answers to the questions are as follows:-
(i) limitation period of four years as prescribed in the Proviso to Section 33(5) of the Act, 1899 would be inapplicable where a document is impounded under Section 33(1) of the Act of 1899.
(ii) evidently, limitation as envisaged under Section 33(5) of the Act would be applicable only from the date when an instrument/document is produced in proceedings as indicated under Section 33(1) or 33(4) of the Act, 1899 and not from the date of its execution.
(iii) Proceedings under Section 33/40/47A of the Act of 1899 are maintainable even if no benefit has been derived from the unregistered instrument of transfer.
(iv) Valuation of the instrument of transfer/document and deficiency of stamp duty thereupon is to be assessed as on the date of execution of such instrument and not from the date when proceedings are initiated under the Act of 1899.
30. In view of the answers to aforesaid questions, particularly regarding question no.(iv), it is evident that the authorities have erred in determining valuation of the instrument of transfer and deficiency thereupon from the date when it was impounded while it should have actually been taken from the date of its execution on 12.08.1985.
31. Considering aforesaid, the petition succeeds to aforesaid extent. The case is remitted to the Prescribed Authority for determination of valuation and deficiency of stamp duty required to be paid as on 12.08.1985.
32. Accordingly, the petition is partly allowed and findings recorded by the authorities regarding valuation, deficiency of stamp duty and penalty stand set aside for re-determination in accordance with directions made herein above.
Order Date :- 8.2.2023 kvg/-