JUDGMENT Rakesh Sharma, J.
1. Heard Sri Rajendra Prasad Tiwari, learned Counsel for the petitioner, and learned Standing Counsel for the opposite parties.
2. The petitioner has, by means of this writ petition, assailed the impugned order dated 21.1.2003 passed by the Assistant Commissioner (Stamps), Etawah (respondent No. 2) and the subsequent impugned order dated 1.5.2003 passed by the Commissioner, Kanpur Division, Kanpur (respondent No. 1) under Section 47A of the Indian Stamp Act, 1899 (hereinafter referred to as the Act) dismissing the appeal of the petitioner.
3. It emerges from the record that the petitioner had purchased 1/18th share of Plot No. 924 situate in Village Kaista Tehsil Jaswant Nagar, District Etawah from one Sri Shiv Prasad alias Shiv Pratap alias Punnoo S/o Sri Shiv Charan Lal, R/o Village Qaista, Town & Tehsil Jaswant Nagar, District Etawah for Rs. 32,000/- on 15.7.2002 and a stamp duty of Rs. 42,000/- was paid at the current circle rate of District Etawah.
4. The petitioner's case, in brief, is that the land in dispute purchased by her is an agricultural land and crops are being sown thereon as and when required. The land was never used for commercial or residential purposes as it is quite away from the Abadi of the town of Jaswant Nagar, District Etawah.
5. A notice under Section 47A and 33 of the Act is alleged to have been issued against the petitioner by the Assistant Commissioner (Stamp), Etawah on 31.12.2002 indicating therein that the petitioner had evaded stamp duty while purchasing the agricultural plot in dispute as the same is alleged to have been purchased for residential or other purposes. According to the Assistant Commissioner (respondent No. 2) the plot was not being used for agricultural purposes.
6. The petitioner filed objection to the aforesaid notice. However, the Assistant Commissioner vide his order dated 21.1.2003 imposed Rs. 1,30,000/- as penalty upon the petitioner for deficient stamp duty, interest etc. and thereafter recovery order was also issued against the petitioner in pursuance thereof.
7. The petitioner challenged this order before the Commissioner, Kanpur Division. Kanpur who has also formed the same opinion as was formed by the Assistant Commissioner (Stamp), Etawah. Both the authorities have placed reliance upon the report of the Tehsildar that the land in dispute is situate at Etawah-Agra Road and in future this could be used for commercial or residential purposes. Both the authorities did not find favour with the assertions made by the petitioner that the plot/land was being used for the agricultural purposes. The petitioner has in support of his assertions placed relevant copies of revenue records, i.e., Khasra and Khataunis to demonstrate that the land was covered by melon, wheat crop and musk-melon etc. and was irrigated by the old well situate on the plot.
8. The Commissioner (respondent No. 1) although has referred to the entries recorded in the Khasra, but has given weightage to the Tehsildar's report dated 22.10.2002. It has been observed in the order of the learned Commissioner that if the Khasra entries would have been placed before the Assistant Commissioner, this point could have been appreciated or considered by the Assistant Commissioner. The learned Commissioner has drawn an inference that the land could have been used as a kitchen garden.
9. The learned Standing Counsel has vehemently opposed the contents of the writ petition. Placing reliance upon a decision of this Court rendered in Aniruddha Kumar and Ashwini Kumar v. Chief Controlling Revenue Authority, U.P., Allahabad and Anr. 2000 (3) A.W.C. 2587, he contends that the impugned orders passed by the learned Assistant Commissioner (Stamp) and the Commissioner are just, legal and proper. As per the learned Standing Counsel, both the aforesaid authorities formed concurrent opinion and passed the impugned orders after being convinced that there was sufficient documentary evidence to assess the stamp duty and impose penalty against the petitioner.
10. It is evident from the relevant extracts of revenue records, i.e., Khasra and Khataunis that the plot in dispute was defined as agricultural land and the same was being used for agricultural purposes. As per Khasra entries, at the relevant time melon and wheat crop was sown on the plot. Existence of a well and a temple also proves this fact that the land was not part of residential building nor was used as a kitchen garden as indicated by the Commissioner. The petitioner had put fort