JUDGMENT P.K. Jain, J.
1. Heard Sri Shyam Bahadur holding brief of Sri R.K. Saxena learned counsel for the petitioner and Sri V.N. Agrawal learned standing counsel.
2. Petitioner purchased a plot of land from respondent No. 3 and claiming that the Respondent No. 3 was a registered society got the sale deed registered without payment of required stamp duty under the Indian Stamp Act. Respondent No. 2 exercising power of Collector, issued notice to the petitioner to show cause why he may not be directed to pay the required stamp duty. After hearing the petitioner and considering his objection, the respondent No. 2 passed an order, dated 5.9.1980 holding that the petitioner has failed, to establish that the society from whom the land was purchased was a registered society. The respondent No. 2, therefore, by the impugned order directed the petitioner to pay the stamp duty worth Rs. 665 and penalty amounting to Rs. 6,650. A revision was preferred before Respondent No. 1 which was dismissed by order dated 22.8.1992.
3. These two orders have been sought to be quashed by the present writ petition. Two submissions were made by learned counsel, the first is that authority below wrongly held that the respondent No. 3 was a registered society. In support of his argument, the learned counsel has filed a copy of alleged registration certificate dated 19.12.1979 as contained in Annexure-1. His next submission is that under Section 47A, the Collector has no power to impose any penalty.
4. Learned standing counsel submits that there is a concurrent finding of the authority below that no material was placed before them to show that respondent No. 3 was a registered society. Therefore, the findings of fact arrived at by the authority below cannot be said to be erroneous. The next submission of learned standing counsel is that penalty has been imposed under Section 40(1)(b) of the Stamp Act and not under Section 47A of the Act.
5. Learned counsel has not been able to show that the registration certificate or particulars thereof relating to respondent No. 3 were produced before the authority below. The question whether the society respondent No. 3 is actually the registered society is a question of fact and could not be gone into in exercise of powers under Article 226 of Constitution. But since now the petitioner has filed a copy of the registration certificate, the matter may be gone into by the respondent No. 2 after considering the genuineness of the registration certificate.
6. As regards second submission of the learned counsel for the petitioner, reliance is placed upon a Division Bench decision of this Court in Jugal Kishor v. State of U. P., 1992 RD 41, wherein it was held that imposition of penalty on the petitioner was wholly beyond the jurisdiction of the Additional District Magistrate (Finance). That was a case under Section 47A of the Stamp Act.
Sub-section (4) of Section 47A reads as follows-
"(4) 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 authorised by the Board of Revenue in that behalf) within four years from the date of registration of any instrument of conveyance, exchange, gift, settlement, award or trust not already referred to him under subsection (I) or sub-section (2), call for 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 conveyance, exchange, gift settlement, award or trust 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 the instrument, he may determine the market value of such property and the duty payable thereon in accordance with the procedure provided for in subsection (3). The difference, if any in the amount of duty, shall be payable by the person liable to pay the duty."
7. From perusal of the subsection (4), it would appear that this provision of law is applicable to cases where on examination of the documents, the Collector finds that the property has been undervalued and thereafter he determines the value of the such properly conveyed by such document and further determines the duty payable thereon in accordance with the procedure provided under sub-section (3) of Section 47A of the Indian Stamp Act. Sub-section (4) simply provides that difference. If any, in the amount of duty shall be payable by the person liable to pay the duty. Thus, subsection (4) of Section 47A does not provide for levy of any penalty. Therefore, the case cited by learned counsel for the petitioner is not applicable to the facts of the present case. In the Instant case, the petitioner claimed that duty was not leviable whereas the respondent No. 2 found that the duty was leviable. The order in question was under Section 40(1)(b) of the Indian Stamp Act which reads as follows :
"(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty of the amount required to make up, the same, together with a penalty of five rupees or, if he thinks fit an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees :
Provided that when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks fit remit the whole penalty prescribed by this section."
8. The above provision of law authorises the Collector to require the person concerned to make the payment of the proper duty and may further impose the penalty ranging between rupees five to ten times of the amount of the proper duty. In the instant case, the amount of duty payable was found to be Rs. 665 and the penalty imposed to the extent of ten times of the amount of duty. Therefore, it cannot be argued that the Collector has no power to impose penalty.
9. However, since it has been held above, the question of fact whether registration certificate Annexure-1 is a genuine document and whether at the time of the execution of sale deed, the society respondent No. 3 was registered or not can be gone into by the respondent No. 2 only, the matter deserves to be remitted to respondent No. 2 for consideration if the petitioner files fresh objections with a copy of the said registration certificate within four weeks from today along with certified copy of this order.
10. The petition is partly allowed. The impugned order as contained in Annexures-3 and 4 are quashed subject to the condition that the petitioner files fresh objection alongwith copy of the registration certificate within four weeks from today failing which the petition shall stand dismissed. In case, the objection along with copy of the registration certificate is filed within the aforesaid period, respondent No. 2 shall reconsider the matter and decide the same within four weeks thereafter from the date of filing of the objection.
No costs.