Heard learned counsel for the petitioner and learned Standing Counsel.
By way of the present writ petition, the petitioner is challenging the order passed under Section 47 A (3) and 56 (1-A) of the Indian Stamp Act 1899.
The husband of the petitioner had purchased the certain land in Arazi No.435 half of rakaba .0605 hectare and Arazi No.436 half of rakaba .0912 hectare in Mauja Barasirohi, block Kalyanpur, Pargana District Kanpur Nagar by a sale deed executed on 24.10.2003. In the sale deed, the said property is declared to be an agricultural property and price of the said property was paid according to the circle rate applicable for agricultural property on the date of execution of the sale deed i.e. 24.10.2003. It is alleged that the petitioner himself is a farmer and cultivator and has purchased the land for farming and even today agricultural activity is going on in the said property. Subsequently, after a gap of four years, a report was submitted by the Deputy Inspector General (Registration) vide its report dated 25.05.2007 that there appears to be deficiency in stamp duty as the property in question has been set out to be agricultural property, 2 whereas it is residential in nature. The said report has been filed as Annexure No.1 to the petition. On the basis of the aforesaid report proceedings under Section 47-A (3) were drawn and notices were issued to the petitioner, who filed his objection. The primary objection of the petitioner was that the land in question is agricultural land and at the time of execution of the sale deed it was situated near 30 feet road and the applicable stamp duty was duly paid. Thereafter an inspection was also made by the Tehsildar of the area, who submitted its report on 27.02.2008 whereby it has been noticed that the plot in question is surrounded by agricultural holdings and on the date of inspection, the crops were standing on the field, and the plot is situated near 200 feet road, which was earlier 30 feet road.
The Collector proceeded to pass the order, although noticing that the plot in question is agricultural plot, but only on the basis that it is situated near 200 feet road has reported deficiency in stamp duty to the tune of Rs. 75,000/- and after calculation of interest and penalty, total amount that has been demanded now is Rs. 1,46,000/-.
Aggrieved by the aforesaid order, the petitioner preferred an appeal before the Commissioner under Section 56 (1-A) and the Commissioner affirmed the order of the Collector. Hence this writ petition.
The main contention of the learned counsel for the petitioner is that the Collector has proceeded to draw proceeding under Section 47-A (3) on a report submitted by the Deputy Inspector General (Registration) after four years of the execution of sale deed on 3 25.05.2007. At the time of the execution of the sale deed, there was only 30 feet road, which over a period of time has now been widened to 200 feet road. The report of the Tehsildar was invited by the Collector in the proceeding under section 47-A (3) also confirms this aspect of the matter yet in an arbitrary manner, the Collector has held that the instrument in question has been stamped deficiently.
I have heard the learned counsel for the petitioner and learned Standing Counsel appearing for the State and from the arguments raised, it does appear that the report of the Deputy Inspector General (Registration) is after four years of execution of the sale deed. However, upon the objection being filed by the petitioner a fresh inspection was made by the Tehsildar, who has reported against the report of the Deputy Inspector General (Registration). The subsequent spot inspection of the holding has revealed that crops are standing on the land but the Collector proceeded only on the ground that the plot was said to be near 30 feet road whereas the Tehsildar has reported 200 feet road. It is always a possibility that during these four years, the road may have been widened from 30 feet to 200 feet. This alone could not have been reason for determining deficiency in stamp duty. What was relevant to be seen as to the width of the road at the time of the execution of the agreement. No such effort seems to have been made by the Collector. In this view of the matter, and the subsequent report of the Tehsildar dated 27.02.2008 the order of the Collector cannot be sustained and it is hereby quashed. Consequently, the order of the Commissioner passed under Section 4 56 (1-A) also cannot be sustained and is hereby set aside.
With the result petitioner is entitled to refund of amount already deposited towards the payment of the aforesaid demand made in pursuance of the order passed under Section 47-A (3) which shall be refunded back to the petitioner, within a period of two months from the date of furnishing a certified copy of this order before the concerned authority. If the same is not refunded within two months then after the expiry of two months, the petitioner will be entitled to interest @ of 10% on the total amount deposited by the petitioner with the authorities till its actual payment Subject to the aforesaid directions, the writ petition succeeds and is allowed.
No orders as to cost.
28.01.2010 PR/-