JUDGMENT M. Katju, J.
This writ petition has been filed for quashing Rule 5 (c) (ii) of the U. P. Stamp (Valuation of Property) Rules, 1997, framed by the State of U. P. and for a mandamus directing the State Government not to determine the minimum value of commercial buildings on the basis of the aforesaid rule.
2. Heard learned counsel for the parties.
3. The petitioner is a society registered under the Societies Registration Act and has twenty members engaged in development, construction and sale of real estate at Agra including commercial property.
4. Copy of U. P. Stamp (Valuation of Property) Rules, 1997, has been annexed as Annexure-2 to the writ petition. The impugned Rule 5 (c) (ii) states :
"5. Calculation of minimum value of land, grove, garden and building.--For the purposes of payment of stamp duty, the minimum value of immovable property forming the subject of an instrument shall be deemed to be such as may be arrived at as follows :
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(c) In case of buildings :
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(ii) Commercial building.--Minimum value of land whether covered by the construction or not which is subject-matter of the Instrument, as worked out under Clause (a) plus three hundred times the minimum monthly rent of the building arrived at by multiplying the constructed area of each of the building with the minimum rent fixed by the Collector of the district under Rule 4."
5. Before deciding the validity of the aforesaid rule, we may refer to Section 47A of the Stamp Act as Introduced in U. P. by U. P. Act 11 of 1969. Section 47A states :
"47A. Undervaluation of the instrument.--(1) If the market value of any property which is the subject of any instrument, on which duty is chargeable on market value of such 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, before registering the instrument, refer the same to the Collector for determination of the market value of such property and the proper duty payable thereon.
(2) On receipt of a reference under Sub-section (1) the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an inquiry 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 proper duty payable thereon.
(3) The Collector may, suo motu, 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 authorized 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 of 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.
(4) If on enquiry under subsection (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 thereon."
6. It appears that the purpose of introducing Section 47A was that the State Legislature felt that stamp duty was being evaded on a large scale in the State by persons who were not valuing the instrument correctly. Hence, the U. P. Legislature in Its wisdom decided that a minimum value of the property shall be fixed in accordance with the Rules made under the Act, and if the market value of the property as disclosed in the instrument is less than that minimum, then the registering officer shall refer the matter to the Collector for determining the correct market value.
7. It is alleged in para 8 of the petition that if reference is made to the Collector, the transferee is put to great hardship as he may need the instrument of transfer for various purposes, e.g., mutation in the revenue record, for obtaining housing or other loans, for income tax purpose, etc.
8. A perusal of Rule 5 (c) (ii) of the 1997 Rules shows that the minimum value of commercial building is worked out in the following manner :
(i) firstly, the minimum value of land whether covered by construction or not which is the subject-matter of the Instrument is to be worked out as fixed by the Collector under Rule 5 (a) of the 1997 Valuation Rules.
(ii) thereafter to this minimum value of land so worked out above, a further addition of 300 times of the minimum monthly rent of the building is to be made.
9. It is alleged in para 12 of the petition that this method of computing of the commercial building for the purpose of stamp duty is wholly arbitrary, illegal and against the principles of valuation and it is also ultra vires Section 3 read with Article 35 of the Schedule 1B of the Stamp Act. It is alleged that this Rule is causing great hardship to the members of the petitioner No. 1 society and also the public in the State of U. P. who purchase commercial buildings in the State. It is alleged in para 13 of the petition that rent of the commercial or residential property represents its income from land and building existing thereon. The rent of property cannot by any stretch of imagination be said to be income of rent of super structure since super structure cannot exist thereupon. If the method of rent capitalisation is resorted to for fixing market value of a commercial or residential property value of land cannot be added again to the sum arrived at by multiplying the rent by a proper multiplier. It is alleged that Rule 5 (c) (ii) makes arbitrary departure from the previous Rule 341. which is quoted in para 15 of the petition.
10. In para 17 of the petition it is stated that if rent capitalisation method is adopted to find out the market value of the property, it is the net rent and not the gross rent, which has to be seen. The owner of the property receives gross rent from tenants and incurs various expenses like house tax, water tax, expenditure for maintenance and repairs, etc. and this reduces the gross rent. Hence it is alleged that only the net rent should be the proper basis of valuation. It is further alleged that prescribing a multiplier of 300 times is arbitrary and against the settled law. 300 times of rent would mean 25 times of the annual rent which is excessive. It is alleged in para 19 of the petition that the stamp duty can only be fixed on the market value as per Article 23 of Schedule 1B of the Stamp Act and hence the impugned rule is ultra vires the Act. It is alleged that the impugned rule has fixed an exorbitantly high value of the property and hence it is violative of Articles 14 and 19 of the Constitution.
11. After hearing learned counsel for the parties, we find no merit in this petition.
12. It may be mentioned that stamp duty is a tax vide Navin Gun House v. Union of India, 2003 (2) AWC 894 (per G. P. Mathur, J.) and the power to levy stamp duty is in the concurrent list of the Constitution entry 44 of the List III of the VII Schedule. Hence, the State Legislature has power to legislate on the subject.
13. Since stamp duty is a tax, we cannot strike down the impugned rule on the allegation that it results in hardship.
14. A Taxing Statute cannot be struck down merely on the ground that the imposition is heavy vide Jagannath v. Union of India. AIR 1962 SC 148. There are several taxing statutes which may be harsh but they cannot be held to be unconstitutional for that reason. Thus, when a Sales Tax law is made under which the dealer cannot pass on the incidence of the tax to the purchaser, this will not make the law unconstitutional vide S, Dodar v. State of Kerala, AIR 1974 SC 2272 (Paras 12 to 14) and M/s. Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019. A Stamp Act, as already observed above, is a taxing statute and as regards a taxing statute it is well settled that equity has no place in it. As observed by Rowlatt, J. In his classic statement in Cape Brady Syndicate v. IRC., (1921) 1 KB 64 : "There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read and nothing is to be implied", and this view has been approved by our Supreme Court in CIT v. Ajax Products Ltd., AIR 1965 SC 1358 and Banarsi Debi v. ITO, AIR 1964 SC 1742.
15. The Supreme Court in CIT v. Firm Muar, AIR 1965 SC 1216, observed that equity is out of placed in tax laws. In CIT v. Madhau Prasad Jatia, 1976 (4) SCC 92, the Supreme Court held that there could be no consideration of equity if the language of the provision was plain and clear. In CIT v. Shahzada Nand. AIR 1966 SC 1342 the Supreme Court observed that while Interpreting a taxing statute one cannot go by the notion as to what is just and expedient.
16. In Syed Mahfooz Husain v. State of U. P., Writ Petition No. 21344 of 2003, decided on 19.5.2003, a Division Bench of this Court upheld the validity of Section 56(1A) of the Stamp Act as introduced by the U. P. Act No, 38 of 2001. Although the provision was hard inasmuch as it requires deposit of one third of the disputed amount of stamp duty including interest and penalty before the stay application could be considered by the appellate authority, yet its validity was upheld. An S.L.P. against that decision has been dismissed by the Supreme Court.
17. In Bindal Batteries Pvt. Ltd. v. State of U. P., 2003 UPTC 462, a similar view has been taken by another Division Bench of this Court. Hence, we have rejected the contention that the impugned rule should be struck down because it is harsh,
18. It may be mentioned that the impugned rule is only for the purpose of fixing minimum valuation of the property as mentioned in Section 47A(1) of the Stamp Act.
19. We do not find any conflict .
between the impugned rule and Section 47A.
20. It may also be mentioned that under Article 23, Schedule 1B of the Stamp Act, which deals with the stamp duty on conveyances, the stamp duty has been fixed on the basis of the amount of valuation of the consideration of the conveyance as set forth therein or the market value of the immovable property, whichever greater.
21. Section 47A(1) does not say that the valuation of the property for the purpose of stamp duty has to be the minimum value determined under the Rules. All it says is that if the valuation set forth in the instrument is less than the minimum value determined in accordance with the rules, then a reference has to be made to the Collector. Thus, the minimum value fixed under the rules is only for the purpose of getting a reference made to the Collector. When the reference comes before the Collector, he has to make an enquiry and determine the correct market value of the property. After such enquiry, the Collector can even hold that the correct market value of the property is less than the minimum fixed under the Rules.
22. It may be mentioned that Article 23 to Schedule 1B is part of the Stamp Act, and hence, it has statutory force. The rules cannot override a statutory provision. Since Article 23 to Schedule 1B states that the stamp duty on conveyances is to be fixed on the basis of the market value of the property, the Rules cannot fix it on some other basis.
23. Hence, it appears that the petitioner is labouring under a misconception that the valuation of the property for the purpose of imposing stamp duty cannot be less than the minimum value determined under the rules. The Collector has to determine the correct: market value which may be either more or less than the minimum value determined under the rules.
24. Thus, the petitioner can have no grievance and the petition is dismissed.