Allahabad High Court
Sri Jai Devi Sahkari Avas Samiti Ltd. ... vs State Of U.P.Through Prin. Secy. ... on 1 April, 2022
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 19 Case :- WRIT - C No. - 1006261 of 2007 Petitioner :- Sri Jai Devi Sahkari Avas Samiti Ltd. Thr.Secy. Obj.Filed Respondent :- State Of U.P.Through Prin. Secy. Institutional Finance L Counsel for Petitioner :- J.P. Mathur Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
1. Heard learned Counsel for the petitioner and learned Additional Chief Standing Counsel.
2. The present petition has been filed challenging the order dated 08.02.1997 (Annexure-3) whereby in exercise of power under Section 33/47A, an order has been passed assessing the deficiency in stamp duty at Rs.59,232.50 and the penalty of like amount has been imposed with a direction to pay the amount within 15 days.
3. The facts in brief are that the petitioner Society purchased a property and got executed a sale deed which was presented for registration, however in view of there being a dispute pertaining to the exemption granted to the societies for payment of stamp duty, the deed was never registered. In para 8 of the petition, it is stated that the deed was presented for registration on 07.10.1993, however no registration was done in view of there being a confusion in respect of payment of stamp duty pertaining to the lands purchased by the co-operative society.
4. The said fact as narrated in para 8 have not been denied in the counter affidavit. In respect of the said instrument, which was presented for registration of the deed was never registered, proceedings were initiated under Section 33/ 47-A of the Indian Stamp Act and the impugned order came to be passed assessing the deficiency of stamp duty against the petitioner amounting to Rs.59,232.50 and the penalty of like amount was also imposed.
5. The Counsel for the petitioner argues that it is common ground in between the parties that although the deed was presented, the same was never registered. He argues that once the deed was not registered, no action can be taken under Section 47-A of the Indian Stamp Act which reads as under:
"[47-A. 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 instruments 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 the 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 reference under sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject of such instrument and the property duty payable thereon.
(3) The Collector may, suo moto, 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 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 such instrument, and the duty payable thereon, and if after such examination he has reason to believe that the 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 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).]"
6. The Counsel for the petitioner further argues that no order has been passed impounding the documents under Section 33 of the Indian Stamp Act and the order passed against the petitioner and impugned in the present writ petition is only traceable to powers under Section 47-A of which fact is also recorded in the impugned order itself.
7. A bare perusal of Section 47-A (1) provides that whenever the market value of any property which is subject of any instrument, is less than the market value of the property as set forth in the instrument, the registering officer shall refer the same to the Collector for determination of the market value of such property.
8. Sub-section (2) of Section 47-A confers power on the registering officer at the time of registering an instrument to refer the same to the Collector for proper determination of the market value, if he has reasons to believe that market value has not been set forth truly in the instrument. Whenever the reference is made in exercise of power under Sections 47-A(1) and 47-A (2) of the Indian Stamp Act, the same are to be decided by the Collector in terms of the mandate of Section 47-A(3) of the Indian Stamp Act.
9. Sub-section (4) of Section 47-A confers suo motu powers on the Collector in addition to a reference received by him to take action for determining the correctness of the market value within four years from the date of registration of any instrument. In terms of the mandate of Section 47-A (4), the Collector can exercise the power within a time prescribed (four years) from the date of registration.
10. In the present case, factually it is cleare that the document has not been registered, it was only presented for registration and thus, I have no hesitation in holding that the Collector did not have any powers to determine the issue pertaining to determination of market value as set forth in the instrument prior to registration.
11. In the present case, the order has been passed even without there being any determination of the issue, the order impugned of the petition is traceable to the purported exercise of powers under Section 47-A of the Indian Stamp Act.
12. Once I have held that the powers under Section 47-A (4) has to be exercised only after the registering of the documents, which has not happened in the present case, clearly the order dated 08.02.1997 is not sustainable and is liable to be set aside.
13. Accordingly, the order dated 08.02.1997 is set aside.
13. The State shall be at liberty to take action after the registration of the documents, if so advised, in accordance with law.
14. The writ petition stands allowed.
Order Date :-1.4.2022 akverma