JUDGMENT Rajes Kumar, J.
1. By means of the present writ petition, petitioner has challenged the order dated 22nd October. 2003 passed by the Commissioner, Gorakhpur Division Gorakhpur in appeal against the order dated 29th March, 2003 passed by the Deputy Commissioner Stamp, Gorakhpur in case No. 1290/614 of 2003 under Section 33 and 38 of the Indian Stamp Act, 1899 (hereinafter referred to as "the Act").
2. Brief facts of the case are that the document has been executed on 1st May, 1997 in respect of the contract for the realization of Tehbazari of the taxi stand and parking place in an action for Rs. 401000/-. A notice has been issued by the Deputy Commissioner, Stamp, Gorakhpur on 21st March. 2003 under Section 47A/33 of the Act with the allegation that there was a deficiency of stamp of Rs. 50130/-. The petitioner has been asked to explain why the demand of such amount be not raised. The petitioner filed objection stating inter alia therein that the notice is barred by limitation inasmuch as the proceeding has been initiated after four years. The Deputy Commissioner vide order dated 29th March, 2003 raised demand of Rs. 50115/- towards stamp duty and penalty at Rs. 5/- in all Rs. 50120/-. Appeal filed against the said order has been rejected by the Commissioner vide impugned order dated 22nd October, 2003
3. Heard Sri Arvind Singh, learned Counsel for the petitioner and Sri Piyush Shukla. learned standing counsel for the respondents.
4. Learned Counsel for the petitioner submitted that proviso to Section 33(5) of the Act provides that no action under Sub-section (4) or Sub-section (5) shall be taken after a period of four years from the date of execution of instruments. He submitted that the second proviso has been added w.e.f 1.9.1998 by U.P. Act No. 22 of 1998. though does not apply to the petitioner, the instrument being prior to 1.9.1998, but even if it is applied but no permission has been sought by the State Government for the action under Sub-section (4) and Sub-section (5) of Section 33 of the Act. He submitted that in paragraph 13 of the writ petition, it has been specifically averred that no permission has been taken from the State Government, which has not been denied in the counter affidavit and. thus, the entire proceeding initiated on 21st March, 2003 being beyond four years is barred by limitation and all the consequential orders are liable to be quashed. Learned Standing Counsel is not able to show that the permission has been sought from the State Government for initiating the proceeding beyond a period of four years.
5. Section 33(4) and (5) of the Indian Stamp Act, 1899 read as follows.
33. Examination and impounding of instruments.
(4). Where deficiency in stamp duty paid is noticed from the copy of any instrument, the Collector may suo moto 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 authorized by the Board of Revenue in that behalf, call for the original instrument for the purpose of satisfying himself as to the adequacy of the duty paid thereon, and the instrument so produced before the Collector shall be deemed to have been produced or come before him in the performance of his functions.
(5) In case the instrument is not produced within the period specified by the Collector, he may require payment of deficit stamp duty, if any, together with penalty under Section 40 on the copy of the instrument.
Provided that no action under Sub-section (4) of Sub-section (5) shall be taken after a period of four years from the date of execution of the instrument.
Provided further that with the prior permission of the State Government an action under Sub-section (4) or Sub-section (5) may be taken after a period of four years but before a period of eight years from the date of execution of the instrument.
6. The second proviso to Section 33(5) of the Act has been added w.e.f. 1.9.1998 by U.P. Act No. 22 of 1998 and without adjudicating the issue whether the proviso applies to the cases where the Instrument is executed prior to 1.9.1998. even assuming it applies the petitioner in the writ petition has specifically stated that in fact no permission has been sought from the State government to initiate the proceeding under Sub-section (4) or Sub-section (3) of Section 33 of the Act beyond a period of tour years. This averment has not been disputed in the counter affidavit. Learned Standing Counsel is not able to show that any permission has been granted by the State Government under the second proviso to Sub-section (5) of Section 33 of the Act Admittedly, the instrument was executed on 1st May. 1997 and the period of four years expired on 30th April. 2001 The notice has been issued on 21st March. 2003. Thus, the notice was beyond limitation and the entire proceeding in pursuance of the said notice was illegal and time barred.
7. In the result, writ petition is allowed. The order of the Deputy Commissioner dated 29th March, 2003 and the impugned order of the Commissioner dated 22nd October, 2003 are quashed. However, there shall be no order as to costs. Any amount deposited in pursuance of the aforesaid orders may be refunded within one month from the date of presentation of certified copy of the order.