Allahabad High Court
Ramesh Chandra Verma vs Collector Barabanki And Ors. on 13 January, 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. - 1003201 of 2011 Petitioner :- Ramesh Chandra Verma Respondent :- Collector Barabanki And Ors. Counsel for Petitioner :- Adnan Ahmad Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.
Petition has been filed assailing notice dated Ist January, 2010 issued under Sections 33/40 of the Indian Stamp Act 1899, order dated 31st August, 2010 passed under section 47-A/33 and order dated 30th April, 2011 passed in appeal under Section 56 of the Act.
Learned counsel for petitioner submits that petitioner was lessee of a shop No.2, the lessor of which was Zila Panchayat, Barabanki on monthly rent of Rs. 187.50 per month for a period of three years. It is submitted that lease agreement was executed between the parties on 26th September, 2002 and quite belatedly thereafter notice dated Ist January, 2010 was issued to the petitioner under Section 47-A read with sections 33/40 of the Act requiring petitioner to show cause why proceedings may not initiated against him for evading stamp duty.
Learned counsel for petitioner submits that upon receipt of notice, objection thereto was filed by petitioner specifically taking a plea that proceedings were barred by limitation and further that even if stamp duty was applicable, the same could have been determined only on the basis of annual rental value of the property and not the area of property in question. It has been submitted that aforesaid objections are clearly indicated in the order passed under Section 47-A and while the second objection has been clearly ignored by the assessing authority, the first issue has also been decided against petitioner on the ground that instrument in question being an instrument as envisaged under Section 2(14) of the Act would be chargeable in terms of Section 2(6) of the Act since it is a document of lease in terms of section 2(16) of the Act and therefore no time frame has been indicated in the Act for initiating the proceedings.
Learned counsel for petitioner submits that orders impugned have been passed on a wrong appreciation of the provisions of Act particularly in view of proviso to section 33(5) of the Act which specifically provides that no action under Sub Section (4) or sub Section (5) of Section 33 can be taken after a period of four years from the date of execution of instrument. It is submitted that only saving clause is under the second proviso where action is permissible after prior permission of the State Government after a period of four years but the said proceedings are also required to be initiated before a period of eight years from the date of execution of instrument. It is thus submitted that the authorities have completely ignored the provisions of Section 33(4) and (5) of the Act and the proviso thereunder to hold that proceedings were within limitation.
Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with submission that document in question amounted to an instrument of lease as defined under Section 2(16) of the Act and would therefore be an instrument which is chargeable to duty in terms of Sections 2(14) and (6) of the Act. It is further submitted that since there is nothing to the contrary in the instrument of lease, stamp duty has been rightly imposed upon the petitioner being a lessee in terms of section 29(C) of the Act.
Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is admitted fact that instrument in question is that of lease executed on 26th September, 2002 on the basis of which notice dated Ist January, 2010 was issued in terms of section 47-A read with sections 33/40 of Indian Stamp Act. The order impugned under Section 47-A also records the objections taken by petitioner before the authority concerned in which objection pertaining to limitation also finds a mention. By means of impugned order dated 31st August, 2010, the objections pertaining to limitation have been rejected primarily on the ground that the document in question being a lease under Section 2(16) would amount to an instrument as defined under Section 2(14) of the Act and would therefore be chargeable to duty in terms of section 2(6) and section 3 of the Act particularly since instrument was executed in India in terms of section 17 of the Act. It is evident from a perusal impugned order that it has not at all adverted to section 33(4) and (5) of the Act as inserted by U.P. amendment vide U.P.Act No.6 of 1980 (with effect from 21st November, 1979). The aforesaid provisions are as follows:-
"33 (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 authorized 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 years from the date of execution 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.]"
From a perusal of the aforesaid provisions, it is evident that as per proviso to Section 33 (5) of the Act, no action under sub section (4) or sub section (5) can be taken by the authorities after a period of four years from the date of execution of the instrument. The only saving has been indicated in the second proviso to section 33(5) but the same would be inapplicable in the present case particularly when it is not the case of opposite parties that any prior permission of the State Government has been taken. As such it is evident that the matter would be covered only by first proviso to Section 33(5) of the Act.
In the present case, it is noticeable and admitted between the parties that the instrument of lease is dated 26th September, 2002 whereas notice under section 47-A read with Sections 33/40 of the Indian Stamp Act has been issued on 31st January, 2010. Clearly the notice has been issued after a period of four years from the date of execution of instrument of transfer and would be barred under aforesaid provisions.
In the counter affidavit filed, the opposite parties have not taken any such ground that any prior permission from the State Government has been taken before issuance of the notice dated Ist January, 2010 in terms of 2nd proviso to Section 33(5) of the Act.
A co-ordinate Bench of this Court in the case of Som Dutt Builders Limited versus State of U.P. and others reported in 2005(23) Lucknow Civil Decisions 1030 has particularly adverted to the aforesaid provisions and has also come to the conclusion on the same issue.
In view of aforesaid, since it is evident that in terms of proviso to Section 33(5) of the Act, the initial notice itself was incompetent, no other issue is required to be adjudicated.
Consequently in view of discussion made herein above, the proceedings initiated vide notice dated Ist January, 2010 under Section 47-A read with Sections 33/40 of the Act being incompetent, the notice dated Ist January, 2010, order dated 31st August, 2010 passed under section 47-A and order dated 30th April, 2011 passed under section 56 of the Act are set aside.
Resultantly, the petition succeeds and is allowed. Parties to bear their own costs.
It has been submitted by learned counsel for petitioner that in pursuance of impugned orders, one third amount has already been deposited before the authority concerned. In view of fact that petition is being allowed, liberty is granted to petitioner to seek refund of the amount so deposited. In case such an application is made, the authority concerned is directed to refund the excess amount deposited within a period of three months from the date a copy of this order is produced before the authority concerned along with application.
Order Date :- 13.1.2023 prabhat