Heard the learned counsel for the petitioners and the learned Standing Counsel for the State-respondent.
The instant petition calls in question the order dated 14.02.2008 passed by the Commissioner Lucknow Division on a stamp appeal whereby it has affirmed the order dated 07.08.2006 passed by the Additional District Magistrate (Finance and Revenue), District Lucknow.
The facts giving rise to the aforesaid petition are being noted hereinafter.
The petitioners by means of sale deed dated 01.11.2004 purchased one residential plot situate on khasra plot no.1556, measuring 2480 sq.ft. stuate in Amausi, Ward Sarojani Nagar, Tahsil and District Lucknow. On the aforesaid sale deed, the petitioners has paid stamp duty worth Rs.28,900/=. It is the case of the petitioners that after the purchase of the aforesaid plot, she constructed two rooms, a bathroom, latrine, varandha as well as boundary wall which was started on 07.11.2004 and so completed by 30th of December, 2004.
It is further stated that the opposite party no.3 got an inspection done of the property in question on 05.01.2005 and it was reported by the inspector that the petitioners had raised construction and as per the inspection report the aforesaid construction were prior to the date of the purchase of the property and as such since the petitioners had concealed the aforesaid construction with had an impact on the determination of the stamp duty, accordingly proceedings under Section 47-A of the Stamp Act were initiated against the petitioners. Considering the report, a deficiency in the stamp duty was reported to be of Rs.36,300/= which was directed to be recovered as arrears of land revenue. Apart from the deficiency, penalty and interest was imposed and a total sum of Rs.52,750/- was sought to be recovered from the petitioners by means of order dated 07.08.2006.
The aforesaid order was challenged by the petitioners by filing an appeal No.458 of 2006-2007 before the Commissioner Lucknow Division who also did not find favour with the submission of the petitioners/appellants and dismissed the appeal.
Being aggrieved against the aforesaid order, the petitioners have challenged the aforesaid order in the instant petition. By means of order dated 19.06.2008, this Court had stayed the operation of the impugned order subject to the payment of 50% of the deficient stamp duty and in furtherance of the aforesaid order passed by this Court, the petitioners have deposited a sum of Rs,18,150/= and the copy of the deposit receipt has been brought on record as annexure No.R.A-1.
The submission of the learned counsel for the petitioners while assailing the impugned order is two fold. (I) His primary submission is that he has purchased the property in shape of residential vacant plot without any construction. It is only after the purchase of the aforesaid property that he had raised the construction. It is further submitted that the alleged inspection was ex parte coupled with the fact that it was admittedly done by the inspector on 05.01.2005 i.e. after two months of the purchase of the property in question. It was specifically pleaded that the petitioner had started raising construction on 07.11.2004 which stood completed by 30th of December, 2004 and this fact could not be disputed or refuted by the State Authority.
It has further been submitted that even in the inspection report, there is no mention of the fact that at that time of conducting the inspection the construction appeared to be old. Once the inspection was done almost after two months and it is a specific case of the petitioners that the construction took place within the aforesaid period and there was no material to indicate either in shape of any material to indicate that prior to the purchase i.e. on 01.11.2004 there was any construction existing, consequently, the report which needless to say was ex pate and bereft of necessary particulars, is bad.
The other limb of the submission of the learned counsel for the petitioners is that he was not given adequate opportunity; inasmuch as the proceedings were completely ex parte behind his back and though specific dates were mentioned yet there is no reply to the fact that how the service was effected on the petitioners. The learned counsel for the petitioners further submits that an endorsement was made by the peon concerned who had gone to get the service effected to the fact that the address of the petitioners was not complete and for the said reasons the service could not be effected.
On the strength of the aforesaid, it is submitted that in case if the constructions were already existing and the petitioners had purchased the same, then at the relevant time of inspection why the notice was not served and why was it mentioned that the address of the petitioners was incomplete.
For all the aforesaid reasons, it is submitted that the alleged inspection report upon the proceedings have been initiated and the deficiency has been ascertained, is a tabled report which does not inspire confidence. Consequently, the impugned orders are bad and the writ petition deserves to be allowed.
The learned Standing Counsel while refuting the aforesaid submissions has submitted that the inspection of the premises was made on 05.01.2005 and the report was submitted on 07.01.2005. In the aforesaid report, it has clearly been indicated that around 925 sq. ft. of construction was existing on the property in question alongwith a boundary wall whereas in the sale deed the same was concealed and it was indicated that a plot has been purchased. Since the petitioners had not referred and indicated the aforesaid construction, accordingly the deficiency has been ascertained and in terms of Section 47-A of the Stamp Act as amended in the State of U.P. the petitioners are also entitled to pay the penalty as well as the interest as has been determined by the opposite party no.3. Since the petitioners could not dispute the aforesaid, accordingly the orders impugned require no interference and the writ petition deserves to be dismissed.
The Court has considered the rival submissions and also perused the material available on record.
The undisputed facts as emerges from the record are that the petitioners had purchased the property by means of sale deed dated 01.11.2004. It is also not disputed that in the said sale deed it is mentioned that the petitioners have purchased a residential vacant plot. The petitioners in paragraph-7 and paragraph-9 of the writ petition has specifically stated that they had started construction on 07.11.2004 after purchase of the plot and the same stood completed by 30th of December, 2004.
The State could not bring any material on record to indicate that at any point of time prior thereto the inspection was made which indicated that any construction existed prior to the date of purchase i.e. 01.11.2004. Apparently the inspection was held after two months and prior to the same the construction as stated by the petitioners stood completed. The inspector while submitting his report dated 07.01.2005 also did not indicate that whether the construction were old nor indicated its condition which could throw some light on the aforesaid aspect. Since it is the specific case of the petitioners that the construction was raised between 07.11.2004 and 30.12.2004. Thus, it was incumbent upon the State Authority while making the inspection to have ascertained the nature and age/condition of the construction. The inspection report is completely bereft of the aforesaid details and does not inspire confidence. Moreover, the notice of the same was also not served on the petitioners. This aspect of the matter has not been considered. The petitioners have submitted the receipts as well as mentioned the details regarding the construction which has not been taken note of by the two authorities.
In view of the aforesaid, since the petitioners were not afforded any opportunity either at the time of inspection or even at the time of passing of the impugned order under Section 47-A of the Stamp Act,nor the report upon which the proceedings were initiated does not inspire confidence and the report being devoid of relevant details, consequently this Court is of the view that the proceedings initiated on the basis of report dated 07.01.2005 does not inspire confidence, hence the determination of the deficiency in stamp duty also suffers from the vice of arbitrariness. Since the main order of determination of stamp duty is liable to be struck down, consequently the imposition of penalty and interest also cannot sustain.
In view of the aforesaid, the writ petition is allowed. The impugned orders dated 07.08.2006 passed by the opposite party no.3 and the appellate order dated 14.02.2008 are set aside. The petitioners shall be entitled to refund of 50% deposited amount in compliance of the interim order passed by this Court. However, no interest shall be payable on the aforesaid sum.
With the aforesaid, the writ petition stands allowed. In the facts and circumstances, there shall be no order as to cost.
Order Date :- 12.1.2021 ank