Gujarat High Court
Kiranbhai Arvindbhai Biniwale vs State Of Gujarat on 13 June, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/2759/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2759 of 2018
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KIRANBHAI ARVINDBHAI BINIWALE & 2 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
KRUTARTH K DESAI(9662) for the Petitioner(s) No. 1,2,3
MR KASHYAP R JOSHI(2133) for the Petitioner(s) No. 1,2,3
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1,2
SERVED BY RPAD (N)(6) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 13/06/2019
ORAL ORDER
1. RULE. Learned AGP waives service of Rule on behalf of the respondent No.1 and 2.
2. This petition under Article 226 of Constitution of India is filed for quashing and setting aside the order dated 28.12.2017 passed by the Chief Controller of Stamp in the Appeal under 53(1) being No.3 of 2013. By the aforesaid order the Chief Controller of Stamp had confirmed the order dated 15.06.2012 passed by the Deputy Collector and the Stamp Duty Evaluator, Bharuch. The dispute pertains to a registered sale deed by which the property was transferred between the petitioner and the original owner by a sale deed dated 23.01.2004. It appears that after the registration of the sale deed, a third party made a complaint to the respondent no.1 about the insufficiency of Page 1 of 6 Downloaded on : Wed Jul 03 08:56:59 IST 2019 C/SCA/2759/2018 ORDER the stamp and in support produced a Banakhat dated 21.05.2002 wherein the amount of consideration was higher than what was mentioned in the sale deed. Based on such application the Deputy Collector Stamp Duty Evaluation passed an order directing the petitioner to pay an additional duty. It is this order which was challenged before the Chief Controller and the Controller by the impugned order dismissed the Appeal and confirmed the order of Deputy Collector.
3. Learned Advocate for the petitioner submitted that the third party had no locus to make an application for insufficiency of the stamp and it was not open for the Deputy Collector to reopen the case based on such an application by a third party. It is submitted that the third party who is respondent no.3 herein had an axe to grind against the petitioner and has therefore, misled the Deputy Collector by producing some scrupulous documents. It is submitted that even if the Banakhat is to be taken into consideration the same was cancelled by a separate document which was within the knowledge of the respondent no.3 but he had deliberately suppressed from the Deputy Collector.
4. It is further submitted that so called Banakhat is of 21.05.2002 and the sale deed was registered on 23.01.2004 and thereafter in the year 2011 respondent no.1 made an application, and such an application ought not to have been considered by Page 2 of 6 Downloaded on : Wed Jul 03 08:56:59 IST 2019 C/SCA/2759/2018 ORDER Deputy Collector considering the lapse of period in between.
5. Learned Advocate has thereafter referred to the provisions of Stamp Duty Act and submitted that if at all Deputy Collector had suspected of deficit in Stamp Duty, it was for the Deputy Collector to inquire and find out market value prevailing. Without entering into such an exercise, the Deputy Collector ought not to have considered the unregistered Banakhat as gospel truth to arrive at market value. It is submitted that in any case the Stamp Duty paid by the applicant is as per the prevailing jantri and therefore there is no deficit under stamp duty.
6. As against this learned AGP has opposed ground of petition submitting that once the evidence has come on record with regard to the transfer value, such value is required to be considered for the purpose of stamp duty. Once the parties have agreed upon one amount as a transfer value, it is not open for the parties to the agreement to once again fall back on the market value prevailing and as the unregistered Banakhat was accepted by the Deputy Collector being an evidence of the agreed amount of transfer, it was open for the Deputy Collector to rely upon such document.
7. Having heard rival parties and having perused the documents on record, it appears that the transfer was entered into in connection with revenue survey no.49/1 sub-plot no.5 of Village Page 3 of 6 Downloaded on : Wed Jul 03 08:56:59 IST 2019 C/SCA/2759/2018 ORDER Nandelav, District Bharuch admeasuring area of 357 Square Meters of open land. A transaction was entered into between the petitioners and the original owner Shri NalinKumar A. Mistry and the transaction which was in the form of sale deed was registered vide document 355 dated 23.01.2004 wherein the transfer value for the aforementioned land was collected at Rs.2,85,600/- against which the stamp duty of Rs.32,000/- was paid.
8. It appears that on 03.01.2011 Mr. Ashok Vasantlal Mehta (Respondent no.3) made an application to the Deputy Collector (Respondent no.2) with regard to the deficit in stamp duty and along with the application annexed a Banakhat dated 21.05.2002 wherein the transfer value for the aforementioned land was collected at Rs.13,92,768/-.
9. It appears that considering this document of Banakhat an order came to be passed on 15.06.2012 whereby it was held that the petitioner has paid deficient stamp duty and therefore was ordered to pay an amount of Rs.1,15,034/- towards the deficit stamp duty and the amount of penalty Rs.3,45,102/-. The appeal preferred by the petitioner before the Chief Controller Authority was also rejected whereby the deficit of stamp duty arrived at by the Deputy Collector was confirmed. From the documents on record, it appears that the respondent no.3 is a third party who was not signatory to the document which was Page 4 of 6 Downloaded on : Wed Jul 03 08:56:59 IST 2019 C/SCA/2759/2018 ORDER registered however, on account of some knowledge due to his proximity to the petitioner, the respondent no.3 claims to be in possession of Banakhat which he has produced before the Deputy Collector at Annexure C. A communication addressed by the petitioner to the respondent no.3 clearly indicates that there appeared to be some direction between two and the respondent no.3 has sought to take advantage of this situation. It is coming on record that even if the Banakhat is taken into consideration when the stand was taken by the petitioner before the Deputy Collector that such Banakhat has already been cancelled and when such cancelled document was also brought to the notice of Deputy Collector, the Deputy Collector ought to have given weightage to such evidence produced by the petitioner.
10. In any case as provided in the Stamp Act starting from the Sections 31, 32 and 32(a) it was the duty of the Deputy Collector to embark upon the inquiry on his own to find out the actual market rate ratio depending upon the document produced by third party. When admittedly, the stamp duty was paid as per the jantri and accepted way back in the year 2004, the Deputy Collector ought not to have entertained the application as upheld in the year 2011 and that too at the hands of respondent no.3 who is a third party. Page 5 of 6 Downloaded on : Wed Jul 03 08:56:59 IST 2019 C/SCA/2759/2018 ORDER
11. The perusal of the order of the Chief Controlling Officer also does not reflect that the case put forward by the petitioner with regard to the Banakhat and cancellation of Banakhat has been taken into consideration and simply the findings given by the Deputy Collector has been reiterated. The Court has perused the Banakhat which is today produced on record by the Learned AGP from his record is a hand written document which is unsigned and which does not reflect anything with regard to payment having actually been made as per the amount mentioned in the Banakhat nor there is anything on record to justify the so called hand written entries made on a blank paper to consider the same to be the receipts. Therefore, the reliance placed by the Controlling Officer to consider this as a receipt of cash and amount is unjustified.
12. In view of the aforesaid, the orders dated 28.12.2017 passed by the Chief Controlling Revenue Authority (CCRA) and order dated 22.05.2012 passed by the Deputy Collector, Stamp Duty Valuation are required to be quashed and set aside and therefore are quashed and set aside.
13. The petition is allowed to the aforesaid terms. Rule is made absolute. Direct service is permitted.
(A.Y. KOGJE, J) URIL RANA Page 6 of 6 Downloaded on : Wed Jul 03 08:56:59 IST 2019