Court No. - 6
Case :- WRIT - C No. - 52081 of 2004 Petitioner :- Maujjam Ali Respondent :- State Of U.P. And Others Counsel for Petitioner :- Rajiv Joshi Counsel for Respondent :- C.S.C.
Hon'ble B. Amit Sthalekar,J.
Heard Sri M.C. Joshi, learned counsel for the petitioner and the learned Standing Counsel for the respondents.
The petitioner is seeking quashing of the orders dated 10.03.1998 and 20.10.2004 arising out of proceedings under the Indian Stamp Act, 1899 (hereinafter referred to as 'the Act, 1899').
Briefly stated the facts of the case are that the petitioner was given a contract for realising Tehbazaari and Nakasha for the year 1994-95 by the Nagar Panchayat, Joya, District Joytiba Phule Nagar for a sum of Rs. 21,20,000/-. In para 5 of the writ petition, it is stated that as per the contract, an agreement containing the terms and conditions was executed. It is also stated that the petitioner deposited the amount as per the contract with the Nagar Panchayat, Joya and there are no dues against the petitioner. A registered agreement was also executed between the petitioner and the Nagar Panchayat, Joya on a stamp paper of Rs. 30/- as per Article 5-C of Schedule I-B of the Act, 1899. However, on an allegation that there was deficiency of stamp duty, proceedings under the Act, 1899 were initiated against the petitioner. The Collector by his order dated 10.3.1998 held that the agreement between the petitioner and the Nagar Panchayat, Joya was a lease within the meaning of the term as defined in Sub Section 16 clause (c) of Section 2 of the Act, 1899 and, therefore, was chargeable to stamp duty under Article 35 (b) of Schedule I-B of the Act and has, therefore, determined the deficiency of stamp duty at Rs.2,64,900/- and has also imposed penalty of Rs. 35,100/-, total Rs. 3,00,000/-. Aggrieved by the order dated 10.3.1998, the petitioner preferred a stamp appeal which has also been dismissed by the Commissioner, Moradabad by his order dated 20.10.2004.
The submission of the learned counsel for the petitioner is that the agreement in question was admittedly for a period of one year from 1994 to 1995 and, therefore, it could have been charged to stamp duty only as a Bond under Article 15 while applying the provisions of Article 35 (a) (i) of Schedule I-B of the Act, 1899 and not Article 35 (b) of Schedule I-B which refers to Conveyance.
The other submission of the learned counsel for the petitioner is that the instrument did not fall within the definition of the term license and, therefore, no stamp duty was chargeable beyond what was already paid.
Identical issue came up before this court in Writ petition no. 26034 of 2002 (Sajid Ali Vs State of U.P. and others) and this court relying upon the judgment of the Supreme Court in Nasirudin Vs State of U.P. and others, (2018) 1 SCC 754 held the instrument to be falling within the definition of lease under Section 2 (16)(c) of the Act, 1899. The only question, therefore, is as to whether stamp duty is to be charged treating the instrument as a 'Conveyance' or as a 'Bond'. This question has also been settled by this court in the case of Sajid Ali (supra) wherein it has been held that since the period of the lease did not exceed one year as it was for the period from 1994-95, Clause (b) of Article 35 would have no application and therefore, the instrument in question would not be chargeable to stamp duty as 'Conveyance' under Article 23-A and instead stamp duty will be chargeable as a 'Bond' under Article 15 of Schedule I-B in view of the provisions of Article 35 (a) (i).
The third aspect of the matter is that the Deputy Commissioner, Stamp/Collector, Stamp has imposed penalty at Rs. 35,100/-. The provision of imposition of penalty was introduced by way of amendment vide U.P. Act no. 32 of 1998 w.e.f. 1.9.1998. The order of the Collector is dated 10.3.1998, therefore, as on 10.3.1998, the provisions of sub section (4) of Section 47-A of the Act, 1899 were not in existence and would not be applicable and, therefore sub section (4) which provides for imposition of penalty could not have been applied in the present case.
The Commissioner, Moradabad in his impugned order dated 20.10.2004 has not considered all these grounds and has simply followed the reasoning of the Deputy Commissioner, Stamp/Collector, Stamp.
For reasons aforesaid, considering the matter in its entirety particularly in the light of the judgment of this court in the case of Sajid Ali (supra), the impugned orders dated 10.03.1998 and 20.10.2004 cannot survive and are accordingly quashed.
The writ petition is allowed.
The matter is, however, remitted to the respondent no.3-Deputy Commissioner, Stamp, Moradabad Region, Moradabad to reexamine the matter for purposes of determination of stamp duty in the light of the observations made above and pass appropriate orders, in accordance with law, within a period of three months from the date of receipt of a certified copy of this order in his office.
Any amount deposited by the petitioner towards deficiency of stamp shall be subject to any final order which may be passed by the respondent no.3.
Order Date :- 29.3.2018 Kirti