JUDGMENT Sunil Ambwani, J.
1. Heard learned Counsel for the petitioner and learned standing Counsel for all the respondents. With the consent of parties, the matter was heard and is finally disposed of at the admission stage.
2. The petitioner preferred an appeal No. 53 of 2007-08 against an order dated 10.12.2007 passed by the Additional Collector (Finance & Revenue) Ghaziabad, by which in a Stamp Case No. 426/2006-07 under Section 47A of Indian Stamp Act in respect of sale of Khasra No. 2049 Gha area 0.0942 hectares situate in village & Pargana Dasna, District Ghaziabad by document No. 8223/9.10.2006, it was found that the market value of the property was much higher and while assessing the market value at the residential rates the petitioner was required to pay Rs. 1,36,900/- as deficiency in stamp duty and Rs. 73,100/- as penalty (total Rs. 2 lacs) with 1.5% interest per month. The Commissioner, Meerut Division, Meerut has, by his order dated 16.1.2008, while admitting the appeal and summoning the records, directed the petitioner to deposit one-half of the disputed amount as a precondition tor stay for a period of two months.
3. It is contended that the condition of deposit is highly onerous and that the order was not considered on merit before directing the parties to deposit one-half of the amount. It is further contended that the deposit of one-half of the amount is against the statutory requirement of deposit of one-third of the disputed amount under the proviso to Section 56(1-A) of Indian Stamp Act, 1899 (in short the Act) as amended by UP Act No. 38/2001.
4. Learned standing Counsel contends that the appellate authority has exercised the discretion in accordance with the law, and that the deposit of one half of the amount includes one third of the disputed amount for the purposes for grant of stay of the remaining amount.
5. The order would show that the appellate authority has considered a limitation imposed by law by proviso to Section 56(1-A) of the Act for considering the stay application. The Chief Controlling Revenue Authority may admit an appeal but he should not have allowed his discretion to consider the stay application until one third of the disputed amount was deposited and which includes deficiency in stamp duty, registration amount and penalty. The deposit of one third is a precondition for consideration of stay application. The object to deposit atleast one third before the discretion to grant interim order is considered appears to collect at least one third of disputed amount by the revenue as the appeal may remain pending indefinitely.
6. The High Court had earlier held that the assessing authority does not have power to impose penalty. The Act was amended by state amendment vide UP Act No. 38 of 2001 by which the powers to impose penalty upto the extent of four times was given to the assessing authority. Sub-section (4) of Section 47A of the Act, as amended by UP Act No. 38 2001 is quoted as below:
47-A (4) If on enquiry under Sub-section (2) and examination under Sub-section (3), the Collector finds the market value of the property-
(i) truly set forth and the instrument duly tamped, 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 thereof.
7. The penalty can be imposed, if there is an attempt to evade the stamp duty. The penalty presupposes culpability and an intention to conceal or to play fraud with the authorities. Whereas there is any reasonable doubt with regard to valuation of the property, and nothing material is found to have been concealed by the petitioner in execution of the document, the authorities will loose their discretion to impose penalty. The enhancement of the valuation on the basis of the finding that the property has a potential user as residential or industrial purposes, is subject to appeal. Before imposing penalty, the authorities must record findings based on relevant material that the purchaser or the person liable to pay stamp duty had concealed the relevant facts in execution of sale deed, and had intension to evade the payment of stamp duty. These powers cannot be mechanically used in every case.
8. The conferment of discretion of award of four times penalty in the hands of executive authorities exercising quasi-judicial powers should be provided with sufficient guidelines by the legislature. In the present case the act and rules do not provide for any guidelines for imposing penalty which may exceed to four times of the amount of the proper duty or deficient portion thereof. The State Government should legislate to provide sufficient guidelines in this regard, to check the misuse of powers by the authorities constituted under the Act.
9. In the present case the Commissioner has not insisted upon deposit of one third amount of deficiency and penalty before he considered the stay application.
10. The order as such cannot be sustained. At the same time it may be pointed out that the provisions of deposit of one third amount, including the penalty for which no reason have been given, appear too highly onerous to be conceded.
11. The writ petition is allowed. The order dated 16.1.2008 passed by Commissioner, Meerut Division, Meerut is set aside. The petitioner will deposit one third of the amount of deficiency and penalty for consideration of stay application. The Commissioner will pass fresh order on stay application only if petitioner deposits one third amount of the disputed amount.