Sunil Kumar Gupta vs Additional Commissioner Fand R. ...
2024 Latest Caselaw 17023 ALL

Allahabad High Court

Sunil Kumar Gupta vs Additional Commissioner Fand R. ... on 14 May, 2024

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:36837
 
Court No. - 17
 

 
Case :- WRIT - C No. - 1001138 of 2009
 

 
Petitioner :- Sunil Kumar Gupta
 
Respondent :- Additional Commissioner Fand R. Pratapgarh .
 
Counsel for Petitioner :- Girish Chandra Sinha
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Mr. Girish Chandra Sinha, learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.

2. Petition has been filed challenging order dated 07.02.2006 passed under Section 47-A of Indian Stamp Act 1899 (hereinafter referred to as the Act of 1899) whereby an instrument of transfer dated 03.12.2005 has been found to be deficient in stamp duty thereby imposing penalty and interest thereupon. Also under challenge is the appellate order dated 22.10.2007 whereby petitioner's Appeal has also been rejected.

3. It has been submitted that proceedings under Section 47-A of the Act of 1899 were initiated on the basis of report dated 08.12.2005 submitted by Sub-Registrar indicating the property in question having residential potentiality being situate in semi-town area.

4. It is submitted that impugned order has been passed solely on the basis of aforesaid ex parte report submitted by Sub-Registrar and no further spot inspection was ever undertaken during proceedings under Section 47-A of the Act of 1899. Learned counsel also submits that even the order passed thereunder dated 07.02.2006 is ex parte in nature since no notice was received by petitioner.

5. It has been submitted that the law propounded by a coordinate Bench of this Court in Ram Khelawan @ Bachchha v. Sate of U.P. and others reported in 2005 (98) RD 511 has clearly enunciated that an ex parte report which forms the basis of initiation of proceedings under Section 47-A of the Act of 1899 cannot be the sole basis of final orders passed under Section 47-A of the Act of 1899.

6. It has also been submitted that Hon'ble the Supreme Court in State of U.P. and others v. Ambrish Tandon and another, reported in (2012) 5 SCC 566 as well as a Full Bench of this Court in Pushpa Sareen v. State of U.P. and others reported in 2015(33) LCD 1575 have dealt with the aspect that stamp duty cannot be imposed on the basis of future potential of the property under transfer and that the potential even if required to be seen is only with respect to the date of execution of the deed and taking into account exemplars, which has not been done in the present case.

7. It is submitted that aforesaid grounds were taken by petitioner in Appeal but have been totally ignored while passing the appellate order which also is based only on the ex parte spot inspection report dated 08.12.2005 and potential use of the property.

8. Learned State Counsel on the basis of counter affidavit has refuted the submissions advanced by learned counsel for petitioner with the submission that the report clearly indicated the fact that the area of the property purchased is only 520 Sq. Mtrs. and is situated in a semi-town area for which petitioner would be liable to pay stamp duty which is prescribed for residential land. It is submitted that full opportunity of hearing was granted to petitioner prior to passing impugned orders. It is also submitted that petitioner did not state true nature of the property in terms of provisions of Section 27 read with Art. 23, Sch. IB of the Act of 1899.

9. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident from a perusal of order passed under Section 47-A of the Act of 1899 that the same is based solely on ex parte spot inspection report dated 08.12.2005 submitted by Sub-Registrar indicating the property in question to be residential. The order does not rely on any other aspect except for the spot inspection report dated 08.12.2005.

10. The aforesaid aspect has already been considered by a coordinate Bench of this Court in Ram Khelawan @ Bachchha(supra) in which it has been specifically held that spot inspection report which forms the basis of initiation of proceedings under Section 47-A of the Act of 1899 cannot be the sole determinant of final orders passed under the said Section. The judgment also indicates that during the course of proceedings, it is open to the Prescribed Authority to conduct fresh spot inspection of the property concerned but only after following the process indicated under Rule 7(3)(c) of the U.P. Stamp (Valuation of Property) Rules, 1997 whereby spot inspection can be conducted only after issuing prior notice to the assessee and ensuring his presence at the time of spot inspection in order to enable him to file objections thereto.

11. The appellate order has also been passed placing reliance on the very same spot inspection report dated 08.12.2005 whereby the appellate authority has come to a conclusion that the future potential of the property in question is residential since it is located in a semi-town area. The appellate order also does not indicate any spot inspection having been undertaken subsequent to 08.12.2005 and in fact determines all the findings only on the basis of spot inspection report dated 08.12.2005.

12. Hon'ble the Supreme Court in State of U.P. and others v. Ambrish Tandon(supra) has enunciated the law regarding future potentiality of the property under transfer in the following manner:-

"15. The impugned order of the High Court shows that it was not seriously disputed about the nature of user of the building, namely, residential purpose on the date of the purchase. Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. Though the matter could have been considered by the appellate authority in view of our reasoning that there was no serious objection and in fact the said alternative remedy was not agitated seriously and in view of the factual details based on which the High Court has quashed the order dated 27-9-2004 passed by the Additional District Collector, we are not inclined to interfere at this juncture."

13. The aforesaid judgment in State of U.P. and others v. Ambrish Tandon(supra) has thereafter been followed by a Full Bench of this Court in Pushpa Sareen(supra).

14. Upon conjoint applicability of aforesaid judgments, it is evident that future potentiality of the property cannot be a determinant for imposition of stamp duty and although future potentiality can be an aspect to be considered but has to be as on the date of execution of the deed and that too after adverting to material on record to record such a finding and on the basis of exemplars.

15. It is also evident from a perusal of impugned orders that there is no other material except the exparte inspection reports for the authorities to have arrived at a conclusion that the property under transfer was located in semi-town area.

16. In the present case, it is quite evident that none of the factors of law enunciated as indicated herein above has been followed by the authorities, rendering the orders vitiated.

17. In view of aforesaid, the impugned order dated 07.02.2006 passed under Section 47-A of the Act of 1899 and the appellate order dated 22.10.2007 are hereby set aside. Consequences to follow.

18. It is directed that any amount deposited by petitioner in pursuance of the orders impugned and the interim order dated 03.03.2009 shall be refunded to petitioner forthwith.

19. Resultantly, the petition succeeds and is allowed. The parties to bear their own costs.

Order Date :- 14.5.2024

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