Court No. - 5
Case :- WRIT - C No. - 18140 of 2003 Petitioner :- Ram Kishore Sharma Respondent :- Addl. Commissioner (Judicial) Bareilly & Others Counsel for Petitioner :- T.S. Dabas Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Naqvi,J.
Heard Sri Arpit Agarwal, learned counsel for the petitioner and Sri R.K. Shukla, the learned Standing Counsel.
This writ petition has been filed challenging the orders dated 20.3.1997 and 24.1.2003, levying stamp deficiency of Rs.9250/-, registration charges of Rs.120/-, penalty @ 5 times of the deficiency, i.e. Rs.46250/-.
A sale deed dated 17.5.1995 executed in favour of the petitioner, became a subject matter under Section 47-A of the Stamp Act, on the basis of the report of the Sub-Registrar dated 16.10.1995, alleging that the market value of the demised property is Rs.86,000/-, over which deficiency of Rs.9250/- was alleged. The matter was referred to the S.D.O who registered a stamp case. Notice was issued to the petitioner, a valuation report was called from the Tehsildar concerned. The petitioner filed objections, alleging that stamp is duly paid, demised property is not commercial, it's residential, located at a considerable distance from abadi, coupled with the fact that the sale deed has been executed under a family settlement in favour of the son. The report of the Tehsildar dated 31.8.1996 indicated that the property in dispute is in an abadi area where as per the rates are applicable, market valuation of the demised property was Rs.10,000/-, whereas the stamp duty has been paid on a valuation of Rs.12,000/-. The SDO, Faridpur under order dated 26.11.1996 was of the view that stamp is duly paid, dropped the notice. Subsequently, the S.D.O, Faridpur issued a notice dated 3.3.1997 to the petitioner that it was brought to his notice that the earlier order dated 26.11.1996 was obtained in collusion with the Inquiry Officer, accordingly he proceeded to review the order dated 26.11.1996, but with notice to the petitioner to file his objections, if any. The petitioner submitted his objections on 5.3.1997 that no illegality could be attributed to the inspection report, transaction has taken place between the father and son, parties belong to the weaker section of the society, who carry out tailoring business, demised property comprises of an area of 10 sq. mtrs only, there is no error in the report dated 31.8.1996.
The S.D.O under order dated 20.3.1997 rejected the objections of the petitioner, reiterated the earlier order dated 26.11.1996, computing deficiency of Rs.9250/- + interest with registration charges of Rs.120/-, penalty to the tune of 5 times, i.e. Rs.46250/-, which has been affirmed in the order of the revisional authority dated 24.1.2003.
It is submitted by learned counsel for the petitioner that once the SDO concerned under his order dated 26.11.1996 proceeded to drop the notice against the petitioner, then in the absence of any statutory power to review the same, he could not have passed a subsequent order on merits, contrary to the one passed by him on the earlier occasion. He also challenged the proceedings on the ground that unless a finding is recorded that any commercial activity was being performed at the demised property, same ipso facto could not be held to be commercial.
There could be no dispute to the proposition that review is the creature of statute. But where the finding recorded by the authority below is that the order dated 26.11.1996, dropping the stamp proceedings, was an outcome of collusion between the petitioner and the author of the inquiry report, whereas on a subsequent inspection by the authority concerned of the property in dispute and holding that the same is in the heart of commercial area, the Court is not inclined to accept the contention of the petitioner as it is now well settled that fraud vitiate even the most solemn transaction, coupled with the fact that the petitioner was put to notice. The petitioner is found to be running a tailoring shop in the property, which is located in a commercial area.
No jurisdictional error could be demonstrated in the computation of stamp deficiency.
It is well settled in law that no penalty could be imposed, unless the authorities record a finding that there was a deliberate attempt to either undervalue a property or to evade due payment of stamp duty as the penalty pre supposes contumacious conduct, whereas in the present case, no such findings have been recorded. Reference in this connection may be made to a decision of this Court in Smt. Vijaya Jain vs. State of U.P. and others, 2015 (9) ADJ 503 (DB) and that of Smt. Asha Kapoor vs. Addl. Collector and others, 2008 (4) ADJ 667.
The writ petition is partly allowed. The orders dated 20.3.1997 and 24.1.2003 are modified only to the extent that the penalty stands reduced to Rs.9250/-, which shall be paid before the authority concerned, within 6 weeks from today, failing which appropriate recovery proceedings shall be initiated. Any previous deposit shall stand duly adjusted.
Order Date :- 8.11.2017 Chandra