Ali Kabeer Khan vs State of U.P. and Others

Pankaj Mithal, J.

Heard Sri R.U.Ansari, learned counsel for the petitioner.

A lease deed dated 14.6.2005 was executed in favour of the petitioner and one Mohd. Waziuddin Usmani for a piece of land measuring 500 sq. ft. The aforesaid lease deed was subjected to determination of market value and deficiency in stamp duty under Section 47A of the Indian Stamp Act. The Deputy Commissioner (Stamp) vide order dated 30.11.2007 assessed the market value and determined the deficiency in stamp duty by Rs.53,600/ and imposed a penalty of Rs.24,924/. The aforesaid order has been affirmed by the appellate authority vide order dated 12.5.2009.

Petitioner alone has challenged the above two orders.

The submission of learned counsel for the petitioner is that the authorities have erred in adding the market value of a tin shed which is said to be existing on the said land.

The argument is devoid of merit, inasmuch as in the appeal itself and otherwise also it is admitted that on the said land a shed of 10 ft x 10 ft. was standing.

Learned counsel for the petitioner submits that the dispute is actually regarding the existence of the roof over the constructions.

The question whether there was any roof over the said structure or not is a pure question of fact and when the report of the SubRegistrar who had made the inspection only two days after the execution of the deed speaks that there is a shed it means a full fledged shed with a roof. There is no scope for taking any other view in the matter and to interfere with the findings of impugned orders in exercise of writ jurisdiction.

The other submission of learned counsel for the petitioner is that the authorities are not justified in imposing penalty in view of the Full Bench decision of this Court in the case of Girish Kumar Srivastava Vs. State of U.P. and others 1998(1) All. C.J. 199 which states that in determining the market value under Section 47A of the Act the Collector has no power to impose the penalty.

Section 47A of the Act for the first time was inserted by U.P. Act No.11 of 1969. Since then it has gone drastic changes time and again. The Full Bench referred to above in reference to the amended provision of the Act, as applicable to the State of U.P. at the relevant time, had interpreted to hold that penalty cannot be imposed under Section 47A of the Act. But the position of the Act, as it stands today, is different, after its further amendment vide U.P. Act No.22 of 1997 and U.P. Act No.38 of 2001. The present Section 47A of the contains subsection (4) which reads as follows:

"(4) If on enquiry under subsection (2) and examination under subsection (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."

The aforesaid provision clearly lays down that the Collector, if on enquiry made under subsection (2) of Section 47A and on examination under subsection (3) of Section 47A of the is of the opinion that the market value of the property has not been truly set forth in the instrument, he shall not only require the party concerned to make up the deficiency but also to pay penalty of an amount not exceeding four times of the deficient portion of the stamp duty.

In view of the above clear provision, permitting the Collector to impose penalty, the argument that there is no power to impose penalty has no force at all.

In view of the above, there is no merit in this petition. It is accordingly dismissed.