Allahabad High Court
Smt. Pratibha Singh Baghel vs State Of U.P. & Others on 11 September, 2014
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 16
Case :- WRIT - C No. - 46731 of 1999
Petitioner :- Smt. Pratibha Singh Baghel
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Prakash Chandra,M.C. Chaturvedi
Counsel for Respondent :- C.S.C.
Hon'ble Rajan Roy,J.
Heard Sri Ravikant, learned senior counsel assisted by Sri M.C. Chaturvedi, learned counsel for the petitioner and Sri Sanjay Goswami, learned Additional Chief Standing Counsel along with Sri Ram Sewak Prajapati, learned standing counsel for the State-respondents.
The short point involved in this writ petition is as to whether, the U.P. Act No.22 of 1998 by which Article 5(b-1) of Schedule 1-B was amended w.e.f. 01.09.1998 will be applicable to an agreement to sell executed on 22.08.1998 or not.
The facts of the case in brief are that an agreement to sell was entered on 22.08.1998, which was presented for registration on 01.09.1998. In the meantime, the Indian Stamp (U.P. Amendment) 1997 (U.P. Act No.22 of 1998) was published in the Gazette on 31.08.1998 by which the clause (b-1) was added to Section 5 as under:
Description of instrument
Proper Stamp-duty
"5. Agreement or memorandum of an agreement-
(a) ............................
(b) ............................
(b-1) if relating to the sale of an immovable property where possession is not admitted to have been delivered nor is agreed to be delivered without executing the conveyance;
Provided that when conveyance in pursuance of such agreement is executed, the duty paid under this clause in excess of the duty payable under clause (c) shall be adjusted towards the total duty payable on the conveyance.
The same duty as on conveyance [No.23 clause (a)] on one half of the amount of consideration as set forth in the agreement.
The aforesaid provision came into force on 01.09.1998.
In respect to the said agreement to sell dated 22.08.1998, the authority concerned passed an order under Section 33/47-A of the Indian Stamp Act determining the value of the property in question and imposing enhanced stamp duty based on the above mentioned amended Article 5(b-1) of Schedule 1-B of the Indian Stamp Act as applicable in the State of U.P. after recording a finding that the agreement was accompanied by handing over of possession.
Sri Ravikant, learned senior counsel invited the attention of the Court to Section 17 of the Indian Stamp Act, which reads as under:
"17. Instruments executed in India.- All instrument chargeable with duty and executed by any person in India shall be stamped before or at the time of execution."
In this regard, he placed reliance upon a full bench judgment of this court reported in the case of Ramesh Chandra Srivastava Vs. State of U.P, AIR 2007 All 39 paragraph-13 of which reads as under:
"13. Section 17 of the Act reads as follows:
17. Instruments executed in India. All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution.
28A. From a conjoint reading of words "instrument", "executed" as defined under SECTION 2(14) and 2(12) with SECTION 17, it is clear that the stamp duty payable on instrument refers to, at the time of execution occurring in SECTION 17, leaves no room of doubt that the duty on the instrument is to be paid at the time of execution. It does not refer to any other thing which have preceded prior to the execution of the instrument. On plain reading of SECTION 17 with Charging SECTION 3 it is clear that relevant point for determining the stamp duty on instrument is the date of execution of the instrument i.e. not the date of registration as such. "
Sri Sanjay Goswami, learned Additional Chief Standing Counsel also submits that the legal position is settled that the provision of law as contained in the Stamp Act and as existing on the date of execution will apply and not the one existing on the date of presentation of registration.
In view of the above, the impugned order, which has been passed on the basis of the amended provision cannot be sustained. As the said ground is sufficient to quash the impugned orders, I am not entering into the merits of the other issues involved regarding possession etc., which are left open for consideration while taking a fresh decision.
In view of the above, the impugned orders dated 31.7.1999 and dated 21.10.1999 are hereby quashed. The matter is remanded back to the competent authority for a fresh decision in the light of the discussion made hereinabove and the provision of law as applicable in the matter on the date of execution of the instrument in question.
Writ Petition is therefore allowed.
Order Date :- 11.09.2014
NLY
