State of U.P. &
Ors. Vs. Ambrish Tandon & ANR.
[Civil Appeal No. 735
of 2012 arising out of SLP (C) No. 33851 of 2009]
J U D G M E N T
P. Sathasivam, J.
appeal is filed against the final judgment and order dated 25.01.2007 passed by
the Division Bench of the High Court of Judicature at Allahabad in Writ
Petition No. 732 (M/B) of 2005 whereby the Division Bench while allowing the
petition filed by the respondents herein issued a writ in the nature of
certiorari quashing the impugned order dated 27.09.2004 passed by the
Additional Collector (Finance & Revenue), Lucknow and the demand notice
a. A Sale Deed dated
16.04.2003 was executed between Har Charan Singh and the respondents herein in
respect of the property situated at 17/1 Ashok Marg, Lucknow measuring 11,029
sq. ft. and registered as Sale Deed Document No. 5341 of 2003. The total value
of the property was computed as Rs. 1,55,28,860/- for the purposes of Stamp
Duty and the respondents herein paid Rs. 15,53,000/- as stamp duty.
b. The District
Magistrate, Lucknow made a spot inspection of the property in question on
21.07.2003. During inspection, the land has been found having an area of 12,099
sq. ft. with a two storey building having an area of 5,646.3 sq. ft. at ground
floor and an area of 5192.3 sq. ft. at the first floor. In the inspection
report, the property in question has been valued for Rs. 3,87,74,097/- and the
stamp duty on the said property has been calculated by the competent authority
as Rs. 38,78,000/-. However, at the time of purchase, respondents herein paid
Rs. 15,53,000/- as Stamp duty, hence a deficiency of Rs. 23,50,000/- has been
pointed out by the authorities. The District Magistrate, vide report dated
26.07.2003, directed to register a case against the respondents herein
c. On the basis of the
aforesaid report, Case No. 653 Stamp-2003 under Sections 47A/33 of the Indian
Stamp Act, 1899 (in short `the Act') was registered. Vide order dated
27.09.2004, the Additional Collector (Finance & Revenue) Lucknow directed
the respondents to make good the deficiency in the stamp duty and also imposed
a penalty amounting to Rs. 8,46,000/- for such tax evasion. On 20.01.2005, for
failure to deposit the aforesaid amount, a demand notice claiming an amount of
Rs. 38,30,500/- plus 10% recovery charges was issued and the respondents herein
were directed to pay the said amount within a period of seven days.
d. Being aggrieved by
the order dated 27.09.2004 and demand notice dated 20.01.2005, the respondent
filed a writ petition being No. 732 of 2005 before the High Court. By order
dated 25.01.2007, the High Court, while allowing the petition filed by the
respondents herein issued a writ in the nature of certiorari quashing the
impugned order dated 27.09.2004 passed by the Additional Collector (Finance
& Revenue), Lucknow and the demand notice dated 20.01.2005.
e. Aggrieved by the said
decision, the State has preferred this appeal by way of special leave petition
before this Court.
Mr. Shail Kumar Dwivedi, learned Addl. Advocate General for the appellant-State
and Mr. K.V. Viswanathan, learned senior counsel for the respondents.
only question for consideration in this appeal is whether the High Court is
justified in interfering with the order dated 27.09.2004 passed by the
Additional Collector (Finance and Revenue), Lucknow demanding differential
stamp duty with interest and penalty in respect of the sale deed dated
16.04.2003 executed in favour of the respondents herein. According to the
respondents, through a registered Sale Deed dated 16.04.2003 they have
purchased the house No. 17/1 Ashok Marg, Lucknow for a total sale consideration
of Rs.1.5 crores on which required stamp duty of Rs. 15.53 lakhs was paid. When
the Additional Collector issued a notice under Section 47A/33 of the Act, the
respondents submitted objection dated 29.08.2003 stating that the extent, area
and valuation are in accordance with the revenue records and the stamp duty
paid by them on the sale deed was proper. It is also stated by the respondents
that before passing the order dated 27.09.2004, the Additional Collector
(Finance and Revenue) Lucknow has not afforded sufficient opportunity to them
and the impugned order was passed in a most arbitrary manner ignoring the
objection submitted by them. It is also stated that at the time of sale deed
the house was a residential property and in order to avoid unnecessary
harassment at the hands of the revenue and for the purpose of stamp duty and
registration they had valued the said property at the rate fixed by the
Collector, Lucknow treating the land as commercial at the rate of Rs.11,300 per
sq. metre. In other words, for the purpose of stamp duty and registration,
according to the respondents, they added additional 10% to the value.
support of the contention that they were not given adequate opportunity by the
Addl. Collector and order was passed on a public holiday, before the High Court
as well as in this Court, the respondents herein have placed the order sheet
which contains the various dates and the date on which the ultimate decision
was taken by him.
It shows that the
matter was heard and decided on a public holiday. In all fairness, the High
Court instead of keeping the writ petition pending and deciding itself after
two years could have remitted the matter to the Addl.
Collector for fresh
orders. However, it had gone into the details as to the area of the plot,
nature of the building i.e. whether it is residential or non-residential and
based on the revenue records and after finding that at the time of execution of
the sale deed, the house was used for residential purpose upheld the stand
taken by the respondents and set aside the order dated 27.09.2004 passed by the
counsel appearing for the appellant-State submitted that as per the provisions
of the Act and the Rules made therein, there is a provision for appeal and
instead of resorting the same; the respondents have straightaway approached the
High Court by exercising writ jurisdiction under Article 226 which is not
A perusal of the
proceedings before the High Court show that the State was not serious in
raising this objection relating to alternative remedy and allowed the High
Court to pass orders on merits, hence we are not entertaining such objection at
this juncture though it is relevant.
In fact, on receipt
of the notice from the High Court in 2005, the appellants who are respondents
before the High Court could have objected the writ petition filed under Article
226 and sought for dismissal of the same for not availing alternative remedy
but the fact remains that unfortunately the State or its officers have not
resorted to such recourse.
We have already held that it is the grievance of the respondents that the
orders were passed by the Additional Collector on a public holiday. Regarding
the merits though the Collector, Lucknow made a surprise site inspection, there
is no record to show that all the details such as measurement, extent,
boundaries were noted in the presence of the respondents who purchased the
property. It is also explained that the plot in question is not a corner plot
as stated in the impugned order as boundaries of the plot mentioned in the
freehold deed executed by Nazool Officer and in the sale deed dated 16.04.2003 only
on one side there is a road.
It is also
demonstrated that at the time of execution of the sale deed, the house in
question was used for residential purpose and it is asserted that the stamp
duty was paid based on the position and user of the building on the date of the
purchase. The impugned order of the High Court shows that it was not seriously
disputed about the nature and 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 27.09.2004 passed by the Additional District Collector, we are
not inclined to interfere at this juncture.
these circumstances, we find no valid ground for interference with the impugned
order of the High Court. Consequently, the appeal fails and the same is
dismissed with no order as to costs.