Allahabad High Court
Jageshwari Devi vs State Of U.P. Through Secy. Revenue And ... on 19 February, 2025
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:10881
Court No. - 19
Case :- WRIT - C No. - 2334 of 2020
Petitioner :- Jageshwari Devi
Respondent :- State Of U.P. Through Secy. Revenue And Ors.
Counsel for Petitioner :- Puttan Singh,Ajay Pratap Singh
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard Mr. Puttan Singh, learned counsel for petitioner and learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 03.07.2017 passed under Section 47-A of the Indian Stamp Act whereby deficiency in payment of stamp duty pertaining to sale-deed executed on 28.04.2015 has been determined alongwith imposition of penalty and interest thereupon. Also under challenge is order dated 30.09.2019 passed under Section 56 of the Act rejecting petitioner's appeal.
3. Learned counsel for petitioner submits that a perusal of impugned order will make it evident that although deficiency in stamp duty has been adjudicated on the basis of exemplar, a penalty has been imposed without adverting to the conditions for imposition of such penalty inasmuch as there is no finding recorded that there was any deliberate attempt by the petitioner in evading the stamp duty. It is therefore submitted that the penalty imposed upon petitioner is against not only the specific provisions of the Act but also against law settled in case of Varun Gopal Vs. State of U.P & Ors. 2015 (2)ADJ 311, Smt. Sonia Jindal Vs. State of U.P. & Ors., in Writ C No.20357 of 2011 and Gyan Prakash Vs. State of U.P. & Ors. Writ Petition No.17858 (M/s) of 2016.
4. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with the submission that the property in question is situate in Gata No.1332 in Village Chaubisi (Ativishisht), Pargana Subeha, Tehsil Haidergarh, District Barabanki. The purchase of property was from one Gyan Prakash by means of execution of sale-deed dated 28.04.2015. It is submitted that the impugned orders have been passed on the basis of exemplar as indicated therein pertaining to the same property registered as sale-deed no.4515 of 2007. He has also adverted to judgement rendered by Coordinate Bench of this Court in the case of Gyan Prakash (supra) to submit that the aforesaid judgment was rendered with regard to the same Gata number in which property in question is situate and the property was thereafter held to be residential in nature. It is therefore submitted that findings recorded by the authority concerned under Section 47-A pertaining to nature of property having been upheld by Coordinate Bench of this Court, requires to be followed.
5. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is quite evident that earlier proceedings with regard to another portion of the same Gata No.1332 were initiated regarding sale-deed dated 20.11.2007 which was purchased by one Gyan Prakash from one Sobhnath Singh. Although the said deed indicated the property to be agricultural in nature, it was held to be residential in proceedings under Section 47-A with such finding being upheld by Coordinate Bench of this Court in the case of Gyan Prakash (supra) from whom, petitioner has purchased a portion of the said plot.
6. In view of the fact that the impugned order has been passed on the basis of exemplars which have been upheld by this Court, there is no occasion for this Court to take a divergent view.
7. With regard to imposition of penalty, provisions of Section 47-A(4)(ii) indicates that penalty will be imposed where the Collectors finds the market value of property not to be set forth and instrument being deliberately undervalued, he shall require payment of proper duty together with penalty of an amount not exceeding four times the amount of proper duty or the deficient portion thereof. The aforesaid provision has been examined in the Case of Varun Gopal (supra) in the following manner:-
"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)."
Likewise this Court in the case of Smt. Sonia Jindal vs. State of U.P. and others, in Writ C No.20357 of 2011 decided on 07.04.2011 has held as under:-
"There is no dispute with regard to power of the authorities under the Stamp Act to impose penalty to the extent of four times the deficiency in stamp duty. However, the question is as to what is the criteria for imposing penalty.
The purpose for imposing penalty in exercise of power under Section 47-A (4) of the Act is to dissuade persons from deliberately under valuing the instrument and from payment of insufficient stamp duty. The purpose is not to make good the loss caused due to non-payment/delay in payment of proper court fees, as the loss so caused to the exchequer has been taken ample care under Section 47-A (4-A) by requiring the person concern to pay simple interest @ 1.5% per month on the deficient stamp duty.
In the instant case, the petitioner is one time petty purchaser of immovable property and is not in business of real estate. She is not a property dealer and is not regularly purchasing or selling immovable properties. Thus, imposition of penalty upon her may not act as a deterrent to her as she is not likely to enter into any such transaction in future.
The authorities below have not recorded any finding that the petitioner has deliberately not set-forth the market value of the property in the instrument and knowingly under valued the instrument to avoid payment of proper stamp duty. Merely for the reason that the stamp duty paid by her is found to be deficient can not by itself be a ground for imposing penalty, particularly, in the absence of any finding that there was intention to evade proper stamp duty.
Moreover, the power to impose penalty of an amount not exceeding four time the amount of the proper duty or the deficiency portion thereof is dependent upon the judicial discretion and can not be exercised in an arbitrary fashion. The authorities below have not assigned any reason for imposing penalty equivalent to the deficiency portion of the stamp duty. Therefore it can not be said to have been acted judicially.
In view of the above, the imposition of penalty can not be sustained."
38. From the aforesaid judgments, it clearly comes out that the sine qua non for imposition of the penalty is a finding to be recorded by the Collector based on the relevant material that the purchaser or the person liable to pay stamp duty had concealed the relevant facts in execution of the sale deed and had the intention to evade payment of the stamp duty."
8. In the instant case, a perusal of impugned order makes it evident that there is no concealment of any relevant fact by the petitioner while executing the sale-deed. The fact of land being adjacent to the National High Way is clearly indicated in the sale-deed although admittedly stamp duty has been paid on agricultural rates. There is no finding recorded in the impugned orders with regard to concealment of any material fact by the petitioner from which it can be discerned that there was deliberate under valuation of property in question.
9. In view thereof, the imposition of penalty upon petitioner cannot be sustained.
10. Accordingly the impugned orders dated 03.07.2017 passed under Section 47-A and 30.09.2019 passed under Section 56 of the Act are hereby quashed by issuance of a writ in the nature of Certiorari to extent it imposes penalty upon petitioner.
11. Resultantly, the petition succeeds partly to the aforesaid extent and is allowed to that extent. Parties to bear their own cost.
Order Date :- 19.2.2025
Subodh/-
