Allahabad High Court
Abhishek Verma And Another vs State Of U.P. Thru. Prin. Secy. Stamp And ... on 30 May, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:41114
Court No. - 17
Case :- WRIT - C No. - 1139 of 2023
Petitioner :- Abhishek Verma And Another
Respondent :- State Of U.P. Thru. Prin. Secy. Stamp And Registration U.P. Civil Secrett. Lko. And 3 Others
Counsel for Petitioner :- Rajesh Chandra Dixit,Sanjai Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard Mr. Sanjai Srivastava, learned counsel for petitioners and learned State Counsel appearing on behalf of opposite parties.
2. Petition has been filed assailing order dated 29.09.2022 passed under Sections 47-A of the Indian Stamp Act,1899 (hereinafter referred to as the Act of 1899) as well as order dated 22.12.2022 passed in appeal under Section 56 of the Act of 1899.
3. Learned counsel for petitioner submits that during appellate proceedings, challenge to order passed under Section 47-A was restricted only to the extent of imposition of penalty and therefore in present petition also, the same restriction would be applicable.
4. Learned counsel for petitioner submits that with regard to imposition of penalty, it was incumbent upon appellate authority to have recorded the subjective satisfaction that there was deliberate intention on part of assessee in either not paying the stamp duty or deficiency in stamp duty. It is submitted that in the impugned order, there is no such satisfaction recorded by authority concerned and even otherwise in terms of proviso to Section 40(1) of the Act of 1899, it was also incumbent upon authority to have granted adequate opportunity of hearing only on the aspect of imposition of penalty, which in the present case has not been afforded and hearing earlier had taken place only with regard to deficiency of stamp duty. Learned counsel has placed reliance on a judgment of coordinate Bench of this Court rendered in Shanti Bhushan & others v. State of U.P. reported in 2013(118) RD 756 to support his submissions.
5. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with submission that by means of impugned orders, stamp deficiency has been rightly adjudicated upon since in a fifty metre radius of the property under transfer, commercial activity is being conducted and in one corner of the property sold, a new house is also being constructed. It is submitted that the aforesaid facts clearly indicate that petitioner deliberately evaded stamp duty and made incorrect statements in the instrument of transfer just to evade the stamp duty. It is therefore submitted that penalty has been rightly imposed upon petitioner.
6. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident that petitioner is confining challenge to impugned orders only to the extent of imposition of penalty in proceedings under Section 47-A of the Act of 1899.
7. The aforesaid aspect has already been considered in Gyan Prakash v. State of U.P. and others, Writ Petition No.17858(M/S) of 2016 in the following terms:-
"37. The next aspect of the matter is the legality of the penalty which has been imposed upon the petitioner of Rs.50,000/-. In this regard, suffice would be to refer the judgment of this Court in the case of Varun Gopal vs. State of U.P. and others 2015 (2) ADJ 311, wherein this Court has held as under:-
"29. Penalty can be imposed, if there is an attempt to evade stamp duty. Penalty presupposes culpability and an intention to conceal or to play fraud with authorities. Before imposing penalty, authorities must record finding based on relevant material that the purchaser or the person liable to pay stamp duty had concealed relevant facts in execution of sale deed and had intention to evade payment of stamp duty. (Asha Kapoor (Smt.) v. Additional Collector (Finance and Revenue), Ghaziabad16)."
8. The said pronouncement has thereafter been followed in Smt. Hajda v. State of U.P., WRIT - C No. - 93 of 2022. The same pronouncement has already been made in Shanti Bhushan(supra).
9. Upon applicability of aforesaid judgment, it is evident that for purposes of imposition of penalty in proceedings, it is incumbent upon the authority to record a finding that the assessee has deliberately not set forth the correct market value of the property in the instrument of transfer knowingly, in order to avoid payment of correct stamp duty.
10. In the present facts and circumstance of the case, a perusal of impugned order passed under Section 47-A of the Act of 1899, it is evident that no such finding regarding deliberate incorrect statement of facts has been attributed to petitioner only for the purposes of evading stamp duty. Aforesaid ground was also taken in paragraph-8 of memorandum of Appeal but has not been adverted to in the appellate order which is also under challenge.
11. In view of aforesaid judgments and their applicability in the present facts and circumstance of the case, no such finding having been recorded by the Prescribed Authority, vitiates the imposition of penalty in order dated 29.09.2022 passed under Section 47-A of the Act of 1899.
12. In view thereof, order dated 29.09.2022 is hereby set aside so far as it imposes an amount of Rs.13,47,320/- upon petitioners as penalty. The appellate order dated 22.12.2022 passed in Case No.2232 of 2022 is also set aside to aforesaid extent.
13. Resultantly, the petition succeeds and is allowed to aforesaid extent. The parties to bear their own costs.
Order Date :- 30.5.2024
kvg/-
