Allahabad High Court
Suresh Kumar Agrawal vs State Of Up And 2 Others on 7 January, 2025
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:2820
Court No. - 2
Case :- WRIT - C No. - 13275 of 2024
Petitioner :- Suresh Kumar Agrawal
Respondent :- State Of Up And 2 Others
Counsel for Petitioner :- Gulrez Khan,Javed Husain Khan
Counsel for Respondent :- C.S.C.
Hon'ble Piyush Agrawal,J.
1. Heard learned counsel for the petitioner and Sri Siddharth Singh, learned Standing Counsel for the State-respondents.
2. By means of instant writ petition, the petitioner has made the following prayer:-
"I. Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 09.02.2024 passed by the respondent no.2 and impugned order dated 22.09.2022 passed by the respondent no.3 (Annexure Nos.1 & 2 respectively);
II. Issue a writ, order or direction in the nature of mandamus commanding the respondents to refund the amount already deposited by the petitioner under order dated 22.09.2022 passed by the Collector with interest 18% per annum from the date of deposit till date of actual refund
III. ..........
IV. ................."
3. Learned counsel for the petitioner submits that the mother of the petitioner namely Smt. Ramkali W/o of Shri Kaushal Kishor executed a gift deed of the agricultural property recorded in Khata No.01843 consisting of six Gatas, measuring area 0.821 hectare, situated at Mauja Larakapurwa Z area Tehsil, Pargana and District- Banda in favour of the petitioner on 14.12.2018. Thereafter, the proceedings under Section 47-A of the Indian Stamp Act were initiated against the petitioner and a notice was issued to the petitioner on 13.7.2020 on the basis of report submitted by the Assistant Commissioner dated 27.06.2020 alongwith report dated 11.06.2020 of the Assistant Registrar. On being received the said noticed, the petitioner submitted his objection on 09.09.2020, but not being satisfied from the same, an order was passed on 08.09.2021 against which an appeal was filed by the petitioner, which was allowed and the matter was remanded for deciding afresh. On being remand of the matter, petitioner filed an application dated 04.07.2022 making request to summon the record of scheduled registered and to summon the Tehsildar, who has submitted the report dated 12.12.2018, to record his statement, but no order was passed on the said application.
4. On 22.09.2022, respondent no.3 upheld the deficiency of stamp duty and the order of the Commissioner dated 04.02.2022 was ignored on the ground that the report of the Assistant Commissioner dated 11.06.2020 has no relation with the property in question and relied upon the report of the Tehsildar. Thereafter, the petitioner preferred an appeal, which was also dismissed on 09.02.2024.
4. He further submits that the petitioner received the property in question by way of registered gift deed dated 14.12.2018 and therefore, no deficiency of stamp duty can be determined. He further submits that the gift deed dated 14.12.2018 cannot be treated as a sale deed and therefore the deficiency of stamp duty has wrongly and illegally been held against the petitioner.
5. In support of his submission, he has placed reliance upon the judgment of this Court passed in the case of Rakesh Sharma Vs. State of U.P. and 3 others (Writ-C No. 33721 of 2021). He prays for allowing the present writ petition.
6. Per contra, learned Standing Counsel supports the impugned orders.
7. After hearing the parties, the Court has perused the record.
8. Admittedly, in the case in hand, gift deed was executed in favour of the petitioner by his mother vide registered gift deed dated 14.12.2018, which has been treated as a sale deed by the authorities without giving any cogent material.
9. The issue in hand is no longer res-integra as this Court in the case Rakesh Sharma (supra) in paragraph nos. 12 & 13 has held as under:-
"12. This Court in the case of Sumit Gupta (supra) has held in para nos. 13 & 14 as under:-
"In conveyance, such as sale of property, generally two parties, ie. seller and purchaser are involved and the market value of the property is determined on the basis of the market forces ie., demand and supply of the commodity. In a deed of gift it is only the person making the gift who is relevant. It is up to him how he values his property. The value of the property in the eyes of the person receiving the gift is not material. This being the situation, the legislature has deliberately used the word "value of the property" in Article 33 while subjecting the gift to stamp duty and has refrained from using the term "market value".
Accordingly, when market value is not at all relevant for levying stamp duty on a gift deed the provisions of Section 47-A of the Act does not come into play which necessitate determination of market value."
13. The aforesaid judgment has been followed by judgment of this Court passed in the case of Sheel Mohan (supra). The relevant paragraph of the same is being quoted-here-in-below:-
"6. In light of the above judgement, it is patently clear that for levying stamp duty on a gift deed, the provisions of Section 47-A of the Act do not come into play. Furthermore, there is no requirement of determination of market value in case of gift deeds. This judgement was accepted by the authorities and has attained finality. The aforesaid judgment was thereafter cited in Vijay Kumar (Supra) and a coordinate Bench has held that Section 47-A of the Act would have no application whatsoever. The said principle was thereafter, reiterated by a coordinate Bench of this Court in Sai Janseva And Another (Supra).
7. Upon a perusal of the judgements provided above, it is clear that in case of a gift deed that has been accepted and registered, the authorities cannot take reference to Sub-section (3) of Section 47-A of the Act and suo moto seek additional stamp duty based on the market value of the property. However, the question arises that in the case of under valuation that may have been done by the executor of the instrument what recourse is available to the authorities.
8. In my view, the Indian Stamp Act, 1899 provides for various provisions that may be acted upon that are provided in Sections 27, 33, 62, 62-A, 64 and 64-B, wherein, if adequate stamp duty has not been affixed, the authorities can proceed against the executor for prosecution and collection of deficit stamp duty. However, the authorities cannot proceed under Section 47-A of the Act which is what has been done in the present case. It is also seen, that the respondents have not taken into account the judgements cited by the petitioner and proceeded to adjudicate upon their whims and fancies. It was incumbent upon the authorities to have taken note of the judgements cited by the petitioner and pass a reasoned order on the same, which has clearly not been done in the present case. The authorities are directed to be far more cautious in their approach in quasi judicial activities being carried out by them."
10. Similar view has been taken by this Court in the case of Rakesh Sharma (supra) wherein while setting aside the order impugned therein, this Court has held that the gift deed cannot be treated as a sale deed and stamp duty disclosed therein taken to be corrected.
10. In view of the above facts as stated as well as law laid down in the aforesaid judgment, the impugned orders cannot be sustained in the eyes of law and the same are hereby quashed.
11. Accordingly, the writ petition is allowed.
12. Any amount deposited by the petitioner pursuant to the impugned orders shall be refunded along with interest @ 9% per annum to him from the date of deposit till actual payment is made, within a month from today from the date of production of certified copy of this order.
Order Date :- 7.1.2025
Pravesh Mishra
