Delhi District Court
Sh. Ashok Kumar Dey vs Collector Of Stamp on 8 June, 2022
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02 : NORTH
ROHINI COURT COMPLEX : DELHI
RCA DJ 28/2021
CNR No. DLNT01-0007353-2021
IN THE MATTER OF:-
Sh. Ashok Kumar Dey
S/o Sh. Madhusudan Dey
R/o Flat No. 1634, PKT - GH-I,
Sector-29, Rohini,
New Delhi. ..............Appellant
VERSUS
1. Collector of Stamp,
Narela (SDM Narela) North,
MPCC Building, Naya Bans,
Delhi-110082
2. Sub-Registrar VI-B,
Narela, Alipur, Delhi ............. Respondent
Date of Institution : 08.10.2021
Date of Arguments : 18.05.2022/08.06.2022
Date of Judgement : 08.06.2022
APPEAL U/S 47-A, INDIAN STAMP ACT, 1899, AGAINST THE
IMPUGNED ORDER DATED 26.09.2019 PASSED BY LD.
COLLECTOR OF STAMP, NARELA
JUDGEMENT
1. This judgement shall dispose of present appeal filed under Section 47-A Indian Stamp Act, 1899 aggrieved from the order dated 26.09.2019 passed by Ld. Collector of Stamp, (SDM North), Narela, Delhi against the appellant.
RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 1/102. Short question involved in the present appeal is how much stamp duty is payable on Sale Certificate in respect of immovable property. In other words whether stamp duty on the aforesaid instrument is payable on the consideration amount shown in the instrument or at circle rate irrespective of the consideration being below the value calculated at circle rates.
3. Briefly stated facts leading to filing of the present appeal is that appellant purchased an immovable property i.e. residential free hold DDA built-up LIG Flat bearing No. 1634 with plinth area of flat measuring 42.01 sq. mtr. or 452.00 sq. ft. located on third floor in Pocket - GH-I, Sector-29, Rohini, Delhi, through auction sale by Jammu & Kashmir Bank conducted by Authorised Officer under the Securitsation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI), 2002, against consideration amount of Rs 14,50,000/- only, whereafter Sale Certificate was issued in favour of the appellant. Appellant, thereafter, applied for registration of the Sale Certificate before the Office of Sub-Registrar-VI-B, Narela, the respondent no. 2 herein, vide cash receipt Sl. No. 5444 dt. 14.05.2019 along with sale certificate while paying stamp duty of Rs. 87,000/- and registration charges Rs. 14,500/-.
4. Ld. Sub- Registrar, the respondent No.2, was of the view the instrument was insufficiently stamped as he was of the view that value of the property as per circle rate would be Rs. 36,90,158.40/- calculated @ Rs. 87,840/- per sqr. mtr. and consequently appellant was required to pay stamp duty of Rs. 2,21,409.50/- and registration fee of Rs. 36,920/- and as such there was deficiency of Rs 1,34,410/-
RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 2/10on account of stamp duty and Rs. 22,402/- on account of registration charges. Respondent No. 2 impounded the Sale Certificate and forwarded the same to Collector of Stamp, the Respondent No.1 for adjudication and charging of short stamp duty/registration fees.
5. On receipt of aforesaid reference, Ld. Collector of Stamp, the respondent No.1, passed the impugned order upholding assessment of the Sub-Registrar about stamp duty and registration charges payable on the instrument and imposed penalty 5 (five) times of Rs. 1,12,100/- on the appellant.
6. Grievance of the appellant against the impugned order is four fold, firstly that respondent No.1 did not give him opportunity of hearing, secondly, assessment is incorrect as duty is payable as per Article 18 of the Act, thirdly case law cited by the appellant were ignored and fourthly, there was no question of imposing penalty as reference was sent for adjudication and charging of short stamp duty/registration fees.
7. Notice of appeal as well as of application u/s 5 of the limitation act, was issued to both the respondents and Sh. Rohit Bansal, Ld. Counsel appeared along with Sh. Dinesh Kumar, Tehsildar, Narela, today.
8. In the application under Section 5 of the Limitation Act it has been stated that delay of 643 days in filling the present appeal be condoned as applicant was initially not aware of the impugned order, he was not allowed to inspect the file and he came to know of the order when he received the certified copy of order on 09.09.2021 RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 3/10 after having applied the same on 06.07.2021 and nationwide lock down due to Corona pandemic also contributed in delay. It has been stated that although appeal is within limitation from the date of receipt of certified copy of order but is delayed from the actual date of order, hence it has been prayed that delay be condoned.
9. Respondents have objected to the allowing of the application as there is huge delay in filing the present appeal and apart from this it is stated that appellant had leveled allegations against the Record and therefore, LD. Counsel for the respondents prayed for dismissal of the application and consequently appeal as well.
10. Having heard rival submissions of Ld. Counsels for the parties, record perused. Right of appeal is a statuary right and should not be defeated on technicalities of delay as far as possible. Further, an effort should always be made to adjudicate all issues on merits than on technicalities. Hence, the delay of 643 days in filing the present appeal against the impugned order is hereby condoned and application under Section 5 of the Limitation Act, 1963 stands accordingly allowed.
11. So far as grievance of the appellant that he was not given hearing is concerned, record as produced by the appellant himself does not support the contention of the appellant. On receipt of reference, office of the respondent No.1 issued notice to the appellant for his personal appearance for 14.06.2019 at 11.00 AM. Record of 14.06.2019 shows that instead of personal visit, a letter of the appellant was received in the office from appellant along with photocopies of two judgements which as per official did not convey RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 4/10 anything clearly except request for sending back the document, hence office further asked the appellant to appear before respondent No.1 on 05.07.2019. Appellant did not appear on 05.07.2019 and office of respondent No.2 again issued notice to the appellant requesting for personal appearance on 31.07.2019 but he did not turn up on 31.07.2019 also and respondent No.1 proceeded with to pass impugned order.
12. Perusal of the letter from appellant in the office of the respondent No.1 does shows that he was aware of the date of hearing and he had visited the office but respondent No.1 could not meet him for some official work. It is his submission that he had subsequently also visited the office of respondent but he was not allowed to meet. There is presumption of genuineness in favour of official records and thus, it cannot be said that appellant was not given opportunity of hearing. The allegation of the appellant calls for trial as record of the respondent No.1 as produced by appellant himself is not supporting his allegation and going for evidence for ancillary issue is neither in the interest of justice nor advisable particularly when appellant is being heard here sufficiently.
13. Next ground of appeal is to the effect that respondent no. 2 and respondent no. 1 have incorrectly assessed that appellant was liable to pay stamp duty in accordance with the circle rate applicable to the property. Relying upon the judgement of Hon'ble Allahabad High Court in case titled as Avdesh Tyagi & Anr. Vs. Commissioner Meerut Division decided on 24.09.2012, Ld. Counsel for appellant has contended that Sale Certificate granted by Recovery Officer is covered by Article 18 of the Stamp Act and therefore, value on the RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 5/10 face of the instrument is to be taken into consideration for the assessment of liability and not as per the circle rate applicable to the property, even if contention of the respondent that Article 23 would apply is taken into consideration.
14. Whereas Ld. Counsel for the respondent has contended that Article 18 of the Stamp Act itself says that if the instrument is discloses consideration above Rs. 25/-, then the stamp duty payable would be in accordance with Article 23 and he further contended that since the coming into force of the Delhi Stamp (Prevention of under Valuation of Instruments) Rules, 2007 w.e.f. 18.07.2007 circle rates are applicable as per which irrespective of valuation put forth or consideration agreed by the parties, applicant has to pay minimum stamp duty as per the circle rate if the valuation put forth or consideration agreed is below the value calculated at the circle rate otherwise as per the face value of the document. He contends that in the present case value of the property is calculated at circle rate comes to more than Rs. 36,90,158.50/-, therefore, appellant has to pay stamp duty and registration charge on the aforesaid value.
15. Division Bench of Hon'ble Delhi High Court in Manu Narang v. Lt.
Governor, Govt. of NCT 226(2016) DLT 1 and in Anita Gupta v. Govt. NCT, 229(2016) DLT385, held that circle rates as made applicable by the Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007 (w.e.f 18.07.2007) are only for raising a presumption about the valuation/consideration and not binding. It was further held that an opportunity has to be given to the concerned parties to prove that the consideration as disclosed in the document, even if below the circle rate was the genuine consideration.
RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 6/1016. In the present case, admittedly appellant has purchased the afore stated property in public auction carried out by the Authorized Officer of Jammu and Kashmir Bank, appointed under SARFAESI Act goes to show that the consideration amount shown in the Sale Certificate is the actual consideration amount for which property was transferred to the appellant because appellant was the highest bidder and not other bidder offerred price above Rs. 14.5 lacs. Thus, there cannot be any undervaluation of the consideration amount for which property was transferred in favour of appellant and sale certificate was issued.
17. There is nothing in the order of respondent No.1 or on the record of the Collector of Stamp as produced by the appellant to show that there was any undervaluation of the consideration amount for the transfer of the property for which sale certificate was issued in favour of the appellant. There is nothing on record to suggest that collector of stamp made any effort to find out the actual consideration amount agreed at the auction was much above the consideration amount shown in the Sale Certificate.
18. Perusal of order of Respondent No. 1 reveals that he had not gone into question as to whether the consideration amount shown in the instrument was genuine consideration or not involving passing of unaccounted consideration. He simply proceeded to determine how much stamp duty was payable without going into the question as to whether there was any undervaluation of the consideration amount. What he decided can be better appreciated by quoting relevant portion of his order which is as under:-
RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 7/10"The above pleas of the applicant are neither convincing nor legality tenable. It is so because by virtue of the Indian Stamp Act, 1899, a deed of conveyance, whether titled as a "Sale Deed" or a "Sale Certificate" is chargeable with stamp duty. A combined reading of Article 18 and 23 under Schedule-I of the Indian Stamp Act, 1899 would show that the same stamp duty is payable irrespective of the fact whether it is a certificate of sale or a deed of conveyance/sale. The person by whom such duty is payable is also spelt out in Section 29(f) of the Act, leaving no room for any doubt that stamp duty is certainly payable even on a certificate of sale.
In view of the above, the Sub-Registrar has rightly assessed the stamp duty against the purchaser in r/o the property in question. Hence, the purchaser is liable to pay the differential amount of stamp duty which comes to the tune of Rs. 1,34,410/- only. In addition, as purchaser has tried to cause pecuniary loss to the Government by paying less amount against stamp duty and registration fee, suitable penalty against deficient stamp duty and registration fee may also be imposed upon the purchaser."
19. Before determining the stamp duty and registration charges payable on the instrument presented for registration and refereed by Sub- Registrar, Ld. Collector of Stamp was required to determine whether the consideration amount shown in the document was the genuine consideration or whether actual consideration amount had been concealed. It was only when he had come to the conclusion that actual consideration amount was higher than what was shown in the instrument, he then would have assessed the liability on the basis of circle rates. Ld. Collector of Stamp having not done so cannot be said to have discharge his duty properly and passed the impugned order without application of quasi-judicial mind.
RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 8/1020. Coming to the question of genuineness of the consideration amount shown in the instrument, Ld. Collector of Stamp should have taken into consideration the fact that in public auction, there is almost no chance of any undervaluation and therefore, even if as per circle rate, value of the property was above Rs. 36 lacs, the appellant is liable to pay stamp duty and registration charges only on the actual consideration amount for which aforesaid property was transferred in favour of appellant in public auction by Authorised Public Autioneer and sale certificate was issued. There is nothing to doubt the consideration amount shown in the Sale Certificate. There, nothing to infer any deliberate attempt on the part of the purchaser or autioneer to show less consideration than was agreed or bid. Consequently, appellant was liable to pay stamp duty and registration charges only on Rs. 14,50,000/-, the consideration amount shown in the Sale Certificate as per Article 18 read with Article 23 of the Schedule-I of Indian Stamp Act, 1899 as applicable to the city of Delhi.
21. Hence, in view of the aforesaid discussion and reasoning, the impugned order dt. 26.09.2019 passed by Ld. Stamp of Collector, Narela against the appellant in respect of Sale Certificate presented for registration before Sub-Registrar-VI-B, Narela vide cash receipt bearing Sl. No. 5444 dt 14.05.2019 in respect of property mentioned above, is not sustainable in law and facts and accordingly, same is hereby set aside. It is further hereby held that appellant is liable to pay stamp duty and registration charges on the value of consideration shown in the above mentioned Sale Certificate and not on the circle rate as applicable to property in the area where property mentioned in the Sale Certificate is situated.
RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 9/1022. Copy of this Order be sent to both Respondents.
23. Appeal file be consigned to Record Room after necessary Digitally signed compliance. HARISH by HARISH KUMAR KUMAR Date: 2022.06.08 16:30:05 +0530 (Harish Kumar) Addl. District Judge-02, North, Announced in the open Court Rohini Court Complex (Judgement contains 10 pages) Delhi/08.06.2022 RCA DJ 28/2021 Ashok Kumar Dey v. Collector of Stamp, SDM Narela DOJ 08.06.2022 Page No. 10/10