Allowed

Asfaque Ali v. State of U.P. and Others

Allahabad HC10 Dec 2018WRIC/654/2012

Case brief

AI extract

What is this about?

Single Judge upheld writ petition challenging ex-parte determination of stamp duty deficiency. Court held proceedings initiated beyond the 4-year limitation period of Section 47-A Stamp Act. Impugned orders were quashed and refund directed.

What did the court decide?

Writ petition allowed; impugned orders dated 10.05.2010 and 31.04.2003 quashed; amount deposited by petitioner directed to be refunded.

Asfaque Ali Vs State of U.P. and Others — Writ and Judicial Review | Allahabad HC (2018)

¶1

Court No. - 30 AFR Case :- WRIT - C No. - 654 of 2012 Petitioner :- Asfaque Ali Respondent :- State Of U.P. And Others Counsel for Petitioner :- Anita Tripathi Counsel for Respondent :- C.S.C.

¶2

Hon'ble Pankaj Bhatia,J.

¶3

The present writ petition has been filed challenging the order dated 10.05.2010 and 21.04.2003, whereby by means of an ex-parte order deficiency of Rs. 3,90,000/- in the valuation of the property bearing no. 465 and 466 has been worked out and accordingly deficiency of Rs. 48,750/- has been determined and in view of the said order the petitioner has been directed to pay the deficient Stamp Duty of Rs. 47,375/- along with penalty of Rs. 5000/-, registration charges of 7580/- totally Rs. 59955/-.

¶4

The said order has been based upon an enquiry report dated 12.08.2002, which itself is an ex-parte against the petitioner.

¶5

The facts in brief are that the father of the petitioner namely Sri Asfaque Ali S/o Arshad Ali purchased property bearing no. 465 and 466 situated at village Kachiyana, Sahawal, Tehsil Kasganj, District Etah now known as Kashiram Nagar, by virtue of a sale deed executed on 22.05.1990. The copy of the said sale deed has been annexed as annexure no. 4 to the petition that from the perusal of the order it is revealed that the Sub Registrar Kasganj vide his letter No. 369 dated 20.07.1992 forwarded the deed in terms of section 47-A of the Stamp Act for determination of the market value. On the said letter of the Sub Registrar, the Collector issued notices on the legal heirs of the said Asfaque Ali i.e. petitioner on 31.01.2002, after getting a report from the Tehsil on 20.11.2002, to the effect that Sri Asfaque Ali has died and his survivor by his legal heir i.e. the petitioners here in.

¶6

This fact has been admitted that in paragraph no. 7 of the counter affidavit filed in response of the petition. The specific averments of the petitioner is that no notices whatsoever were served upon the petitioner

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either before the ex-partee enquiry dated 12.08.2002 or before passing of the impugned order dated 21.04.2003. The petitioner has further pleaded and argued that the entire proceedings initiated and included by means of impugned order are beyond the limitation prescribed under section 47-A of the Indian Stamp Act. It has been further urged that even otherwise while determining the market value the Tehsildar and the Collector ought to have been taken the valuation of the property as existed in the year 1990 when the sale deed in question was executed and not in the year 2002 as has been shown by the Tehsildar and as determined by the Collector. Section 47-A of the Indian Stamp Act provides for the manner of determining the market value however, Section 47-A Sub-section 3 clearly bars the exercise of powers after a period of 4 years from the date of the execution of the instruments, there is also a proviso carving out an exception for initiation of proceedings up to a period of 8 years with a prior permission of State Government.

¶8

The short question to determine in the present petition is as to when the period of 4 years would commence and what action is required to be taken within a period of 4 years as provided under Section 47-A Subsection 3 of the Indian Stamp Act.

¶9

A bare perusal of the provision clearly provides that the starting point of limitation under Section 47-A Sub-section 3 is the registration of any instruments this starting point of limitation in the present case is clearly 22.05.1990. The second question as to when and what action is required to be done within a period of 4 years is answered by the Full Bench of this Hon'ble Court in the case of Girjesh Kumar Srivastava versus State of Uttar Pradesh reported in 1997 LawSuit (All) 636 ; wherein two questions were raised before the full Bench the question no. 2 raised before the full Bench is as under :-

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“(2) Whether the limitation of four years as provided in subsection (4) of Section 47-A of the Act is for making a reference by a Court or any one of the authorities enumerated in the subsection or it is for initiation of proceedings by the Collector?”

¶11

While answering the said questions this Hon'ble Court held as under paras 11 and 12 are as follows:-

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“It may be noticed that the language used in the opening part of subsection (4) of Section 33 is exactly similar to the language used in the opening part of sub-section (4) of Section 47A. The proviso to sub-section (5) of Section 33 says that no action under subsection (4) or sub-section (5) shall be taken after a period of four years from the date of execution of the Instrument. Here the bar of limitation applies to the action which may be taken by the Collector and not to a reference. There is no reason why similar interpretation should not be given to sub-section (4) of Section 47A specially when both the sections namely Section 33 and Section 47A find place in same Chapter IV of the Stamp A t which deals with Instrument Not Duly Stamped.

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(11) It has been held by a Full Bench of Seven Judges of our Court in Mata Badal Pandey and other v. Board of Revenue, 1974 U.P. Tax Cases 570 that where there is some doubt or ambiguity in any provision in the authoritative English text, it is permissible to look into the Hindu text to remove the doubt or ambiguity. Subsection (4) of Section 47A as given in the Hindi version of the Act reads as follows:

¶14

^^4 dysDVj lo;eso ;k fdlh U;;ky;] ;k LVkEi vk;qDr ;k vij LVkEi vk;qDr] ;k LVkEi mi&vk;qEr] ;k lgk;d LVkEi vk;qDr] ;k jktLo ifj"kn~ }kjk blds fy;s vf/kd`r fdlh vf/kdkjh ds lanHkZ ij fdlh foys[k ds] ftl ij 'kqYd lEifRr ds cktkjh ewY; ij] izHkkj.kh; gS] tks mi&/kkjk 1 ;k mi&/kkjk 2 ds v/khu igys mldks lanfHkZr u gqvk gks] jftLVhdj.k dh rkjh[k ls pkj o"kZ ds vUnj ml lEifRRk dk tks ,sls foys[k dk fo"k; gks] cktkjh ewY; vkSj ml ij ns; 'kqYd ds ckjs esa viuh larqf"V djus ds iz;kstu ls foys[k dks ryc dj] mldk ijh{k.k dj ldrk gS] vkSj ;fn ,sls ijh{k.k ds ckn mls fo'okl djus dks dkj.k gks fd ml lEifRRk dk cktkjh ewY; foys[k esa lR;rkiw.kZ O;Dr ugha fd;k x;k gS] rks o+g mi&/kkjk 3 esa fu/kkZj.k izfdz;k ds vuqlkj lEifRRk dk cktkjh ewY; vkSj ml ij ns; 'kqYd fuf'pr dj ldrk gSA 'kqYd dh jkf'k esa vUrj ;fn gks ml O;fDr }kjk ns; gksxk ftl ij 'kqYd vnk djus dk nkf;Ro gksA**

¶15

The Hindi version is quite clear and there can be no two opinion on the matter that the period of limitation applies to the action which may be initiated by the Collector and not to a reference

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which may be made to him by a Court or other authority.”

¶17

Thus the said question stands fully answered by the Full Bench that the action by the Collector has to be initiated within a period of 4 years. In the present case the notice for the first time was sent on 31.01.2002.

¶18

In view of the submissions made in paragraph 7 of the counter affidavit, it is clear that the first initiation by the Collector in pursuance of the letter sent to him was on 31.12.2002, which is clearly beyond the prescribed period of limitation even if the proviso to Section 47-A Subsection 3 of the Indian Stamp Act is taken into account. Thus the entire proceedings initiated and concluded against the petitioner in respect of the sale deed dated 22.05.1990, are wholly without jurisdiction and are liable to be quashed. The same are accordingly quashed. The orders dated 10.05.2010 and 31.04.2003 are quashed.

¶19

The writ petition is allowed in terms of the order passed hereinabove.

¶20

The amount so deposited by the petitioner shall be returned within a period of 2 months from making an application for refund of the sum before the authorities concerned.

¶21

Order Date :- 10.12.2018

¶22

sweta

Asfaque Ali v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Asfaque Ali v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

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