Allahabad High Court
Vivek Kumar vs State Of U.P. And 3 Others on 2 September, 2019
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 49 Case :- WRIT - C No. - 23031 of 2019 Petitioner :- Vivek Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anjali Sinha,Krishna Kant Dwivedi Counsel for Respondent :- C.S.C. Hon'ble Siddhartha Varma,J.
This writ petition has been filed with a prayer that the recovery citation issued on 10.6.2019 by the Tehsildar, Tehsil - Anupshahar, District - Bulandshahar, in pursuance of the order dated 30.5.2019 passed by the District - Magistrate, District - Bulandshahar, in Case No. D201911170000833 (State of U.P. vs. Vivek Kumar) under Section 33/47A of Indian Stamp Act 1899, passed on 20.4.2010 be quashed.
The learned counsel for the petitioner assailed the recovery certificate on the ground that the amount which was payable by the petitioner under order dated 30.5.2019 could not be made payable by the petitioner as it was excessively high. He submits that not only was the deficiency of stamp calculated wrongly but the penalty of Rs. 18,00,000/- was calculated in a most malafide manner.
Learned counsel for the petitioner further stated that when he had filed the appeal before the respondent no. 2, the Deputy Commissioner (Stamp), Meerut Division, Meerut, then the recovery ought to be stayed. He further submits that the Stay Application as is conceived under Section 56(1A) of the Indian Stamp Act, 1899, could not be filed by him as the Appellate Court was demanding 1/3rd of the total amount which was recoverable under the order dated 30.5.2019.
Learned counsel for the petitioner referred to Section 56 of the Indian Stamp Act, 1899, alongwith all its U.P. Amendments and stated that the proviso under which a Stay Application had to be moved was being misinterpreted by the Appellate Court and the Appellate Court was demanding 1/3rd of the total payable amount under the order passed by the Collector on 30.5.2019, alongwith the Stay Application. Since, at this juncture, learned counsel referred to Section 56 of The Indian Stamp Act, 1899, the same is being reproduced here as under:-
"56. Control of, and statement of case to, Chief Controlling Revenue authority. - (1) The powers exercisable by a Collector under Chapter IV and Chapter V and under clause (a) of the first proviso to Section 26 shall in all cases be subject to the control of the Chief Controlling Revenue authority.
[(1-A) Notwithstanding anything contained in any other provisions of this Act, any person including the Government aggrieved by an order of the Collector under Chapter IV, Chapter V or under Clause (a) of the first proviso to Section 26 may, within sixty days from the date of receipt of such order, prefer an appeal against such order to the Chief Controlling Revenue Authority, who shall, after giving the parties a reasonable opportunity of being heard consider the case and pass such order thereon as he thinks just and proper and the order so passed shall be final:
Provided that no application for stay or recovery of any disputed amount of stamp duty including interest thereon or penalty shall be entertained unless the applicant has furnished satisfactory proof of the payment of not less than one-third of such disputed amount:
Provided further that where the Chief Controlling Revenue Authority passes an order for the stay of recovery of any stamp duty, interest thereon or penalty or for the stay of the operation of any order appealed against and such order results in the stay of recovery of any stamp duty, interest thereon or penalty, such stay order shall not remain in force for more than thirty days unless the appellant furnishes adequate security to the satisfaction of the Collector concerned for the payment of the outstanding amount];
(2) If any Collector, acting under Section 31, Section 40 or Section 41, feels doubt as to the amount of duty with which any instrument is chargeable, he may draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue authority.
(3) Such authority shall consider the case and a copy of its decision to the Collector who shall proceed to assess and charge the duty (if any) in conformity with such decision."
Learned counsel stated that if the proviso under Section 56 (1A) of the Indian Stamp Act, 1899, which provides for the filing of a Stay Application is perused, he submits, that only 1/3rd of the disputed amount which included the interest payable on it alone had to be paid alongwith the Stay Application. Learned counsel further submitted that when the 1/3rd amount had to be paid for moving the Stay Application then the amount had not to include the penalty which was imposed. Learned counsel for the petitioner stated that if the disputed amount was to include the penalty also then it would become very difficult for an ordinary citizen to file an Appeal. Learned counsel submitted that any provision of law ordinarily should be so read that it best harmonizes the object of the statute. He submitted that the object of the statute was that when an Appeal was filed then the assessee should deposit a certain amount so that if he eventually loses the appeal the financial burden upon the assessee should be minimal. Learned counsel, therefore, submits that even though the statute was very clear that before the staying of the recovery of any amount which was being made from an assessee under an order passed under Section 47 (A), 1/3rd of the amount had to be paid of the disputed amount, the appellate courts, many a time, directed for the depositing one third of the amount which was a total of the deficiency alongwith the interest and the penalty amount.
Learned counsel submitted that disputed amount only included the deficiency which was assessed alongwith the interest which was imposed under Section 40 (1-A) of the Indian Stamp Act. Learned counsel submitted that definitely the 1/3rd of the penalty had not to be paid.
Learned Standing Counsel, however, in reply, submitted that when the petitioner had not moved any Stay Application then it was but natural that the recovery in pursuance of the order dated 30.5.2019 had to be made.
Learned Standing Counsel further submitted that a bare perusal of the proviso under which the Stay Application was moved in Section 56 (1-A), the 1/3rd of the disputed amount had to be paid which according to him was 1/3rd of the deficiency amount, the interest imposed upon it and the penalty. He submits, therefore, that the petitioner when had not moved the Stay Application then he had to bear the consequences.
Having heard the learned counsel for the petitioner and the learned Standing Counsel, this Court is of the view that the Stay Application under the proviso to Section 56 (1-A) could be moved if the petitioner deposited 1/3rd of the deficiency assessed by the Collector alongwith the interest imposed upon it under Section 40 (1- A) of the Indian Stamp Act. The petitioner had not to deposit the 1/3rd of the penalty imposed.
If the statute was to be interpreted in the manner the learned Standing was interpreting, then it may become very difficult for an individual to file an appeal. Penalty definitely did not form a part of the disputed amount. Disputed amount was only such an amount which included the deficiency calculated alongwith the interest imposed upon it under Section 40 (1-A) of the Indian Stamp Act.
Under such circumstances, if the petitioner moves an application alongwith the 1/3rd of the deficiency calculated by the District Magistrate within a period of two weeks from today then the Appellate Court shall pass orders on the Stay Application within a period of three weeks thereafter.
For a period of five weeks, no coercive action shall be taken against the petitioners.
With the above observations, the writ petition is disposed of.
Order Date :- 2.9.2019 praveen.
(Siddhartha Varma,J.)