Allowed

Basant Mahavidyalaya Tendui Sarai Inayat Allahabad v. State of U.P. and Others

Allahabad HC13 Nov 2019WRIC/9553/2011

Case brief

AI extract

What is this about?

The Court allowed a writ petition against orders levying deficiency of stamp duty on agricultural land purchased for commercial purposes. It held that stamp duty is determined by the land's revenue record status at the date of execution, rejecting findings of intended commercial use unsupported by evidence.

What did the court decide?

Orders of Additional Collector and Commissioner set aside; deposited amount with 7% interest directed to be refunded.

Basant Mahavidyalaya Tendui Sarai Inayat Allahabad Vs… — Land Acquisition | Allahabad HC (2019)

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Court No. - 54

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Case :- WRIT - C No. - 9553 of 2011

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Petitioner :- Basant Mahavidyalaya Tendui Sarai Inayat Allahabad Respondent :- State of U.P. and Others Counsel for Petitioner :- P.K. Dubey,Ajit Kumar Singh,Anil Kumar Singh,Dharampal Singh,Rahul Sahai,S. Niranjan

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Counsel for Respondent :- C.S.C.

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Hon'ble Saral Srivastava,J.

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Heard Sri Anil Kumar Singh, learned counsel for the petitioner and Sri Pankaj Kumar Rai, learned Standing Counsel for the respondents.

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The petitioner has assailed the order dated 12.08.2009 passed by the Additional Collector/Chief Revenue Officer, Allahabad, respondent no.3 in Case No.98 of 2008-09 determining insufficient stamp duty to the tune of Rs.9,29,900/- and imposing penalty of Rs.50,000/- with a further direction to the petitioner to pay interest at the rate of 1.5% per month on the insufficient amount of stamp duty from the date of execution of sale deed and the order dated 07.12.2010 passed by the Commissioner, Allahabad Division, Allahabad, respondent no.2 in Appeal No.368 of 2008-09, under Section 56 of Indian Stamp Act affirming the order of the respondent no.3.

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The petitioner has purchased plot no.269, area 0.2400 hectare, plot no.270, area 0.1655 hectare and plot no.558, area 0.4910 hectare, total 0.8965 hectare, situated in village Tendui, Pargana Jhusi, Tehisl Phoolpur, District Allahabad for a sale consideration of Rs.16 lacs.

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The aforesaid land is an agricultural land and accordingly, the petitioner paid stamp duty of Rs.1,45,900/- on the valuation of land treating it to be an agricultural land as fixed by the Collector, Allahabad under U.P. Stamp (Valuation of Properties) Rules, 1997.

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The respondent no.3 on receipt of a report dated 12.11.2008 submitted by the Tehsildar, Phoolpur in respect of the aforesaid plots initiated proceedings under Section 33/47 of Indian Stamp Act which was numbered as Case No.98 of 2008-09 on the ground that the stamp duty paid by the petitioner on the aforesaid land is insufficient inasmuch as the land has been purchased by the petitioner for commercial use and therefore, the petitioner should have paid the stamp duty fixed by the Revenue Authorities applicable to the commercial plots.

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The petitioner submitted objections to the aforesaid proceedings contending therein that the petitioner has purchased agricultural land and therefore the correct stamp duty has been paid by the petitioner. It is also stated by the petitioner that the aforesaid land has been recorded in the revenue record as agricultural land and further, for the purpose of payment of stamp duty the nature of user of land relatable to the date of purchase is relevant for the purpose of collection of stamp duty.

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The respondent no.3 vide order dated 12.08.2009 rejected the objections of the petitioner by recording a finding that the petitioner was liable to pay stamp duty as applicable to the commercial land inasmuch as the petitioner has purchased the aforesaid land for commercial purpose. By

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the said order, the respondent no.3 held Rs.9,29,900/- as deficient stamp duty and imposed penalty of Rs.50,000/ upon the petitioner and further directed the petitioner to pay interest at the rate of 1.5% from the date of execution of sale deed on the aforesaid amount.

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Feeling aggrieved by the order of the respondent no.3 dated 12.08.2009 the petitioner preferred statutory appeal under Section 56 of Indian Stamp Act before the respondent no.2 who vide order dated 07.12.2010 affirmed the deficiency of stamp duty determined by the respondent no.3 and also held liability for payment of interest upon the petitioner at the rate of 1.5 % per month on the said amount. However, he reduced the amount of penalty from Rs.50,000/- to Rs.10,000/-.

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Challenging the aforesaid two orders, learned counsel for the petitioner has contended that the petitioner has purchased the agricultural land inasmuch as the aforesaid land has been recorded in the revenue record as agricultural land and as per the settled proposition of law for the purpose of determining the stamp duty, the nature of land recorded in the revenue record is to be considered for the purposes of determination of stamp duty. Thus, the nature of land for the purposes of determination of stamp duty on the date of execution of sale deed as recorded in the revenue record is to be considered. In this regard, he has relied upon the judgement of the Apex Court in the case of State of U.P. Vs. Ambrish Tandon and another 2012 (5) SCC 566 and the judgement of this Court in the case of Gopi Cold Storage Pvt. Ltd. Vs. Chief Controlling Revenue Authority U.P. at Allahabad and

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others [2009 (108) RD 548] .

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Further submission of the learned counsel for the petitioner is that the finding of the respondent no.3 that the petitioner has purchased the land for the use of commercial purpose is based on no evidence on record and as such the order of Additional Collector, respondent no.3 is not sustainable, and accordingly, the order of the Commissioner, respondent no.2 is also not sustainable.

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Refuting the aforesaid submission, learned counsel for the respondents submits that the sufficient finding has been recorded by the respondent no.2 while holding the petitioner liable to pay stamp duty applicable for commercial land inasmuch as it is evident from the record that the petitioner is running a school which is a commercial activity.

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I have considered the submissions of the parties and perused the record.

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The record reflects that it is not in dispute that the land in dispute is recorded as agricultural land in the revenue record. A perusal of the order of respondent no.2 clearly shows that he has held the petitioner liable to pay stamp duty on the aforesaid amount applicable to the commercial plots only on the ground that the petitioner would use the aforesaid land for commercial purpose. The said finding is not corroborated by any evidence or material on record.

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Further the Apex Court as well as this Court relied upon by the petitioner has laid down that the potential use of land for the purposes of determining the stamp duty is to be considered on the date of execution of sale deed.

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Thus, in the present case, the contention of learned counsel for the petitioner has substance in view of the judgements relied upon by him. Accordingly, the orders of respondents no.2 and 3 dated 07.12.2010 and 12.08.2009 are not sustainable in law and set aside.

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It appears that the petitioner has already deposited the entire deficiency of court fee alongwith interest and penalty imposed by the orders of the Commissioner which is evident from the affidavit of compliance filed by the petitioner.

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Thus, the respondent no.3 is directed to refund the amount deposited by the petitioner in compliance of the order passed by the Commissioner within a period of three months from the date of production of certified copy of this order alongwith 7% simple interest on the aforesaid amount.

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The writ petition is allowed. There shall be order as to costs.

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Order Date :- 13.11.2019 S.Sharma

Basant Mahavidyalaya Tendui Sarai Inayat Allahabad v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Basant Mahavidyalaya Tendui Sarai Inayat Allahabad v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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