# Harbhajan Singh v. The Commissioner Moradabad Division, Moradabad & Anr

- **Citation:** (2022) 4 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-29
- **Case number:** Writ C No. 46272 of 2017
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harbhajan-singh-v-the-commissioner-moradabad-division-moradabad-anr-48342
- **Pages:** 13

## Headnote

Civil Law - Constitution of India,1950 -
Article 226 - Indian Stamp Act, - Sections
33, 33(1), 33(4), 33(5), 35, 47, 47(a), 48
& 56(1), Registration Act, Section - 69 -
An agreement to sell - complaint with a
photocopy of document only - report
submitted & issue notices by the Assistant
Collector (Stamp) - Petitioner raised
written objection - whether a photocopy
of an instrument could be impounded
without seen original & notices beyond
limitation period - not considered - relying
only
on
a
photo
copy
-
authority
determined deficiency of stamp duty with
interest & penalty - Revision dismissed -
writ petition partly allowed - impugned
order impounding the photocopy of the
instrument is quashed. (Para - 9, 36, 37,
40, 42)

Writ Petition is partly allowed. (E-11)

List of Cases cited: -

## Text

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4 All. Harbhajan Singh Vs. The Commissioner Moradabad Division, Moradabad & Anr.
489
facts and considering the effect of the
provisions in the light of the ration in
Jagdish Chandra Gupta's case, another
Bench of this Court to which one of us
(K.Ramaswamy, J.) was a member had held
in Smt Prem Lata's case that Section 20
stands attracted to make an application for
reference. Later, ratio clearly applies to the
facts in this case."

40. Thus it comes out absolutely
clear that suit in the present case was not
hit by Section 69 of Indian Partnership
Act, 1932. So far as the argument
regarding merit of the claim raised in the
suit as decreed by the courts below is
concerned, I do not find any substantial
issue to be involved in the concurrent
findings of fact that have come to be
returned by the courts below, and which,
in my considered view, require any
further interference in exercise of power
under Article 227 of the Constitution of
India.

41. This petition accordingly fails and
is dismissed with no order as to cost.
----------
(2022)04ILR A489
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ C No. 46272 of 2017

Harbhajan Singh ...Petitioner
Versus
The Commissioner Moradabad Division,
Moradabad & Anr. ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Sinha, Sri Ajay Kumar
Singh Yadav, Sri Divyansh
Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 226 - Indian Stamp Act, - Sections
33, 33(1), 33(4), 33(5), 35, 47, 47(a), 48
& 56(1), Registration Act, Section - 69 -
An agreement to sell - complaint with a
photocopy of document only - report
submitted & issue notices by the Assistant
Collector (Stamp) - Petitioner raised
written objection - whether a photocopy
of an instrument could be impounded
without seen original & notices beyond
limitation period - not considered - relying
only
on
a
photo
copy
-
authority
determined deficiency of stamp duty with
interest & penalty - Revision dismissed -
writ petition partly allowed - impugned
order impounding the photocopy of the
instrument is quashed. (Para - 9, 36, 37,
40, 42)

Writ Petition is partly allowed. (E-11)

List of Cases cited: -

1. Hariom Agrawal Vs Prakash Chandra Malviya
- (2007 vol - 8 SCC - 514)

2. Som Dutt Builders Ltd. Vs St. of U.P.- (AIR
2005 All. 234)

3. Smt. Prabha Juglani Vs St. of U.P. through
Secretary (Stamps and Registration) & ors.-
(2019 vol- 2 ADJ 860)

4. Jupudi Kesava Rao Vs Pulavarthi Venkata
Subbarao - (AIR 1971 SC 1070)

5. Girjesh Kumar Srivastava & anr. Vs St. of U.P.
& ors.-(AIR 1998 All. 237)

6. Kanhaiya Prasad Vs Asst. Collector, First
Class/S.D.M. Banda & Another, (1999 vol. 90
RD 107)

7. Tata Teleservices Ltd. Vs St. of U.P. & ors.,
(2008 vol. 6 All. L.J. 748)

8. Aegis BPO Service Ltd. Vs St. of U.P. & ors.,
(2010 vol. 9 ADJ 237)
490 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Heard Shri Pramod Kumar Sinha,
learned counsel for the petitioner and Shri
Sanjay Goswami, learned Additional Chief
Standing Counsel along with Shri Dinesh
Kumar Gupta, learned Additional Chief
Standing Counsel, for the revenue.

2. Present writ petition has been filed
to challenge the order dated 27.7.2017
passed
by
Commissioner,
Moradabad
Division, Moradabad, in Revision No.C
20171300423 filed by the petitioner, under
Section 56(1) of the Indian Stamp Act 1899
(hereinafter referred to as the Act), against
the order of the Collector, Rampur, dated
30.12.2016 passed in proceedings under
Section 33/47 of the Act (State vs.
Harbhajan Singh). The Revision Authority
has dismissed the aforesaid Revision and
confirmed the deficiency of stamp duty
determined together with interest and,
penalty imposed by the Collector, Rampur,
vide his order dated 30.12.2016. Thus,
deficiency of stamp duty Rs. 12,36,800/-
and interest liability @ 1.5% per month
together with registration fee Rs. 100/- and
penalty
Rs.
12,36,700/-
has
been
confirmed, on a photocopy of the document
dated 12.11.2013, described as agreement
to sell.

3. The undisputed facts of the case
are, the aforesaid proceedings under
Section 33/47 of the Act arose against the
petitioner on a complaint received by the
Collector, Rampur, from one Khalid
Hussain Khan and Sohail Khan, dated
28.5.2014. Therein, it was alleged, the
complainants had executed an agreement to
sell dated 12.11.2013 in favour of the
present petitioner, for Arazi Nos. 352, 354,
admeasuring 2.1450 Hectare and 0.575
Hectare respectively, for a sum of Rs.
6,17,40,000/-.

4. Acting on that complaint and a
photocopy
of
the
document
dated
12.11.2013, a report dated 05.7.2014 was
submitted by the Assistant Collector Stamp.
On that, the Collector, Rampur issued
notice (to the petitioner), dated 15.5.2015
requiring him to produce the original of the
document/instrument
dated
12.11.2013
before the said authority, on or before
3.6.2015. The petitioner did not produce
the document but raised written objection
dated 18.2.2015. Copy of the same is
annexed as Annexure no.1 to the writ
petition.

5. By means of that objection, the
petitioner objected - the proceedings
initiated by the Collector, Rampur, were
without jurisdiction. He relied on the
provisions of Section 33(1) of the Act and
stated that the photocopy of the alleged
agreement to sell dated 12.11.2013, had not
been received in evidence by any Court or
authority. Also, the same had not been
produced and it had not come into
possession of any government authority, in
performance of its function.

6. By means of paragraph 6 of those
objections, the petitioner further objected,
the alleged photocopy of the document
dated 12.11.2013 bore photocopies of
signatures of only two persons out of five
who may have executed/signed the original
deed, if any. Therefore, there was neither
any agreement to sell nor any agreement
had been executed. In paragraph 6 of the
objection, the petitioner further disputed
that the agreement to sell had not been
executed nor proven in evidence nor
presented for registration. Photocopy of
such incomplete document was not an
4 All. Harbhajan Singh Vs. The Commissioner Moradabad Division, Moradabad & Anr.
491
instrument. Therefore, the proceedings be
dropped.

7. At the same time, in paragraph 8 of
the objections, the petitioner further stated,
he was a victim of fraud. He had lodged a
FIR against the complainants who had
misled the government authorities to issue
the impugned notice to the petitioner, based
on a photocopy of the document allegedly
dated 12.11.2013. In that, the petitioner
further submitted that the complainants had
been paid Rs. 30,00,000/- by the petitioner,
though no transfer of property took place.

8. The Collector, Rampur, rejected the
objections and determined deficiency of
stamp
duty
(together
with
interest),
registration fee and imposed penalty, as
noted
above.
That
order
has
been
confirmed in Revision.

9. Learned counsel for the petitioner
would submit, undisputedly, no document
had been filed by any party in any judicial
proceedings. Such document had also not
come to the hands of any competent
authority in the performance of his
functions. Therefore, under Section 33(1)
of the Act, no jurisdiction ever arose to the
Collector, Rampur, to determine deficiency
of stamp duty against the petitioner. The
proceedings
were
wholly
without
jurisdiction and non est.

10. He has placed reliance on a
decision of the three-Judge bench decision
of the Supreme Court in Hariom Agrawal
vs. Prakash Chandra Malviya, (2007) 8
SCC 514. Reliance has also been placed on
a single-Judge decision of this Court in
Som Dutt Builders Limited vs. State of
Uttar Pradesh, AIR (2005) All 234 and,
another decision of a learned single-Judge
of this Court in Smt. Prabha Juglani vs
State of U.P. Thru' Secy. (Stamps &
Registration) & Ors., (2019) 2 ADJ 860.
Last, reliance has been placed on another
decision of the Supreme Court in Jupudi
Kesava Rao vs Pulavarthi Venkata
Subbarao, AIR 1971 SC 1070.

11. Second, it has been submitted,
photocopy of a document could never be
described as an instrument under Section
2(d) of the Act. For any document to
qualify as an instrument, it must necessarily
be the original - that creates any right or
liability, or both. A photocopy of a
document can never create or confer any
right or liability and it may never be read as
evidence in any judicial proceeding, to
assert a right or to create a liability. The
entire proceedings were a nullity.

12. Third, he has also placed reliance
on Uttar Pradesh (Photostat Pratiyon Ke
Saath
Dastavejon
Ka
Registrikaran)
Niyamavali, 1989 (hereinafter referred to
as the Rules) to submit, the copies 'of any
instrument' contemplated under Section
33(4) of the Act would be copies tendered
with the original document for the purpose
of obtaining registration and not any other
photocopy. In that regard, he would further
submit, unless interpreted in that manner,
every person may be subjected to duty
liability though the document may not be in
existence.

13. Last, it has been submitted, no
demand of penalty may have been raised in
absence of any finding recorded by the
Collector, Rampur, of any attempt to avoid
payment of stamp duty.

14. The above submissions have been
met by the learned Additional Chief
Standing Counsel by placing heavy reliance
on the provisions of Section 33(4) and (5)
492 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Act. He would submit, the provisions
of Section 33(1) of the Act are wholly
distinct and different from Section 33(4) of
the Act. Both operate in different fact
situations. While one may lead to the
impounding of a document and then impost
of stamp duty, the second may or may not
lead to impounding of the document but it
may necessarily lead to recovery of stamp
duty. As to the precedent relied by learned
counsel for the petitioner, the same are
stated to be distinguishable on facts. In
Hariom Agrawal Vs Prakash Chand
Malviya (supra), the issue involved was
formulated by the Supreme Court in
paragraph no.6 of the report. It reads as
below:

"Whether the court can impound
the photocopy of the instrument (document)
of improper description exercising its
power under the provisions of the Stamp
Act, 1899?"

15. Therefore, the binding ratio of that
decision
emerges
as
to
whether
a
photocopy of an instrument could be
impounded. That question was answered in
the negative. However, with reference to
the duty chargeability on such photocopy of
a document, the learned Additional Chief
Standing Counsel would refer to paragraph
nos.14 and 15 of the report to submit, in the
said case as well, the Supreme Court
recognized
the
power
of
the
State
authorities to levy stamp duty based on a
photocopy
of
a
document/instrument.
Parallel provision exists in the shape of
Section 33(4) and (5) of the Act, as
applicable in the State of U.P.

16. As to the decision of this Court in
Som Dutt Builders (supra), though
specific question was framed as to whether
the stamp authorities had jurisdiction to
initiate proceedings on a photocopy of a
document and that question was answered
against the revenue, however, the said
decision is based on a reading of Section
33(1) of the Act only. No plea was raised
by the State, in that case, relying on the
provision of Section 33(4) and (5) of the
Act. That question was not examined or
dealt with by the Court. Thus, the binding
ratio emerging from the said decision is
only to the effect that no deficiency of
stamp duty may be determined beyond the
period of limitation prescribed.

17. Then, to the other decision of
another learned Single Judge of this Court
in Smt. Prabha Juglani (supra), it has
been submitted, the provisions of Sections
33(4) and (5) of the Act were not raised and
not considered in the said decision.

18. Insofar as the decision of the
Supreme Court in Jupudi Kesava Rao
(supra)
is
concerned,
it
has
been
submitted, in that case again, the issue dealt
with and decided was whether a photocopy of a document could be read as
secondary evidence. The said issue was
answered by the Supreme Court in the
negative. While dealing with that issue, it
was opined- Section 35 of the Stamp Act
deals with only original instruments and
not their copies as may allow such copies
to be read as secondary evidence.

19. As to the reliance on the Rules, it
has been submitted that they have no
application to proceedings under the Act.
Further, the transaction being concealed,
penalty was validly imposed, upon its
detection.

20. Having heard learned counsel for
the parties and having perused the record,
in the first place, reference may be made on
4 All. Harbhajan Singh Vs. The Commissioner Moradabad Division, Moradabad & Anr.
493
the provision of Section 33 of the Act. It
reads as below:

"33.
Examination
and
impounding of instruments.-- (1) Every
person having by law or consent of parties,
authority to receive evidence, and every
person in charge of a public office, except
an officer of police, before whom any
instrument, chargeable, in his opinion, with
duty, is produced or comes in the
performance of his functions, shall, if it
appears to him that such instrument is not
duly stamped, impound the same.

(2) For that purpose every such
person shall examine every instrument so
chargeable and so produced or coming
before him, in order to ascertain whether it
is stamped with a stamp of the value and
description required by the law in force in
[India] when such instrument was executed
or first executed: Provided that-

(a) nothing herein contained shall
be deemed to require any Magistrate or
Judge of a Criminal Court to examine or
impound, if he does not think fit so to do,
any instrument coming before him in the
course of any proceeding other than a
proceeding under Chapter XII or Chapter
XXXVI of the Code of Criminal Procedure,
1898 (5 of 1898);

(b) in the case of a Judge of a
High Court, the duty of examining and
impounding any instrument under this
section may be delegated to such officer as
the Court appoints in this behalf.

(3) For the purposes of this
section, the State Government may in cases
of doubt, determine what offices shall be
deemed to be public offices and who shall
be deemed to be persons in charge of
public offices.

(4) Where deficiency in stamp
duty paid is noticed from the copy of any
instrument, the Collector may suo motu or
on a reference from any Court or from the
Commissioner of Stamps or an Additional
Commissioner of Stamps or a Deputy
Commissioner of Stamps or an Assistant
Commissioner of Stamps or any officer
authorised by the Board of Revenue in that
behalf, call for the original instrument for
the purpose of satisfying himself as to the
adequacy of the duty paid thereon, and the
instrument
so
produced
before
the
Collector shall be deemed to have been
produced or come before him in the
performance of his functions.

(5) In case the instrument is de
produced with in the period specified by the
Collector, he may require payment of deficit
stamp duty, if any, together with penalty
under section 40 on the copy of the
instrument: Provided that no action under
sub-section (4) or sub-section (5) shall be
taken after a period of four years from the
date of execution of the instrument:

[Provided that no action under
sub-section (4) or sub-section (5) shall be
taken after a period of four years from the
date of execution of the instrument.

[Provided further that with the
prior permission of the State Government
an action under sub-section (4) or subsection (5) may be taken after a period of
four years but before a period of eight
years from the date of execution of the
instrument.]"

21. Plainly, the provisions of Section
33(1) of the Act and Section 33(4) of the
Act contemplate different fact situations.
Also,
they
provide
for
different
consequences and procedure regarding
determination of deficient stamp duty and
impounding of a document. Under Section
33(1) of the Act the proceedings for
determination of deficient stamp duty may
arise only upon the document being
received in evidence by a person in charge
494 INDIAN LAW REPORTS ALLAHABAD SERIES
of public office (except police officer), or
which comes before such authority in
performance of its functions, if it appears
(to such authority), that the instrument is
not duly stamped. In that event, he may
impound the document. Only after such
document
is
thus
impounded,
an
authenticated copy of the same may be sent
to the Collector for levy of stamp duty and
penalty. Thus, unless the procedure to
impound a document is undertaken first
and till such document is produced and
impounded, no proceeding may arise to
determine deficiency of stamp duty or
penalty etc.

22. On the other hand, under Section
33(4) of the Act, if it comes to the notice of
the Collector from a copy of instrument
either suo motu or on a reference from any
Court or Commissioner of Stamp or
Additional Commissioner of Stamp or
Deputy
Commissioner
of
Stamp
or
Assistant Commissioner of Stamp or any
officer authorized by the Board on that
behalf that the original of such copy is not
adequately duty paid, the Collector may
require the concerned to produce the
original document before him. If the
document is produced, the procedure of
Section 33(1) would apply.

23. However, if the document is not
produced, then by virtue of sub-section (5)
of Section 33 of the Act, a further power is
vested to the Collector to proceed to
recover deficiency of stamp duty together
with penalty on the copy of the instrument
itself.

24. Second, under section 33(1) of the
Act, the original document must first be
impounded where after the deficiency of
stamp duty may be determined on such
document upon its authenticated copy,
under Section 38 of the Act. However, no
such action is required when the Collector
proceeds under Section 33(4) read with
Section 34(5) of the Act.

25. In that event, the pre-condition for
recovery of deficient stamp duty and
penalty is the notice requiring the person
concerned
to
produce
the
original
document. If the person produces the
original document, the proceedings would
arise on the authenticated copy of the
original document. However, by virtue of
Section 33(5) of the Act, the Collector is
empowered to act on the photocopy of the
instrument in his possession, in the event,
the concerned refuses or fails to produce
the original document.

26. The only other difference that
exists in the powers vested under Section
33(1) of the Act and 33(4) of the Act iswhile power under Section 33(4) of the
Act, may be exercised both, upon reference
or suo motu, by the Collector, upon coming
into possession of a photocopy of an
instrument, in contrast, under Section 33(1)
of the Act, the Collector may act only upon
the authenticated copy of the document
impounded being sent to him by the
competent authority (after impounding the
original), and not in any other manner.

27. In Girjesh Kumar Srivastava &
Anr. vs. State of U.P. & Ors., AIR (1998)
All 237, a Special Bench of three Judges of
this Court made the following discussion
while dealing with cases of limitation and if
penalty could be imposed in proceedings
under Section 47-A of the Act, upon
satisfaction of value of property being not
truly set-forth:

"Section 40 gives power of the
Collector-regarding the instrument which
4 All. Harbhajan Singh Vs. The Commissioner Moradabad Division, Moradabad & Anr.
495
have been impounded. It provides that if he
is of the opinion that the instrument is duly
stamped or is not chargeable with duty he
shall certify the same by making an
appropriate endorsement to that effect.
However if he is of the opinion that such
instrument is chargeable with duty and is
not duly stamped, he shall require the
payment of proper duty or the amount
required to make up the same, together with
a penalty of five rupees or if he thinks fit a
amount not exceeding ten times of the
amount of proper duty or of the deficient
portion thereof, Sub-sections (4) and (5) of
Section 33 lay down that if deficiency in
stamp duty is noticed from the copy of any
instrument, the Collector may suo motu or
on a reference from any Court or from any
one of the authorities mentioned in subsection, call for the original instrument for
the purposes of satisfying himself as to the
adequacy of the duty paid thereon and if
the instrument is not produced he may
require payment of deficit stamp duty
together with penalty under Section 40 on
the copy of instrument. The sections
referred to above would show that the
Legislature has made a specific provision
for payment of penalty in addition to
deficiency in stamp duty wherever such a
deficiency is noticed from the instrument
itself or a copy thereof. "

(emphasis supplied)

28. Then, a division bench of this
Court in Kanhaiya Prasad vs. Assistant
Collector, First Class/S.D.M. Banda &
Anr., (1999) 90 RD 107 considered the
Special Bench decision in Girjesh Kumar
Srivastava (supra) and observed as below:

"Sub-sections (4) and (5) of
Section 33 lay down that if deficiency in
stamp duty is noticed from the copy of any
instrument, the Collector may suo motu or
on a reference from Court or from any one
of the authorities mentioned in sub-section,
call for the original instrument for the
purpose of satisfying himself as to the
adequacy of the duty paid thereon and if
the instrument is not produced, he may
require payment of deficit stamp duty
together with penalty under Section 40 on
the copy of the instrument. The sections
referred to above would show that the
Legislature has made a specific provision
for payment of penalty in addition to
deficiency in stamp duty where such a
deficiency is noticed from the instrument
itself or a copy thereof. Apparently the
Assistant I.G. Registration informed the
facts to the Collector which he came to
know during his inspection of municipal
records and thereafter the Collector issued
notice to the petitioner."

(emphasis supplied)

29. In Tata Teleservices Limited vs.
State of Uttar Pradesh & Ors., (2008) 6
All LJ 748, while dealing with the question
of validity of Section 33(4) & (5) of the
Act, a learned Single Judge of this Court
made the following discussion as to the
scope of power Section 33(4) and 33(5) of
the Act:

"Sub-sections(4) and(5) of Section
33 of the Stamp Act introduced by the U.P.
Amendment do not contain any such power
as was contained in Section 73 of the Andhra
Pradesh Act. The machinery of Sub-section
and (5) of Section 33 is triggered of when the
deficiency in stamp duty is noticed from a
copy of the instrument. There is nothing in
these provisions to indicate that the Collector
can compel the production of the copy or of
the original instrument. The situation in
which the Collector can call for the
production of the original instrument is
specifically provided for under sub-section
496 INDIAN LAW REPORTS ALLAHABAD SERIES
(4). It is when the deficiency in stamp duty
paid is noticed from the copy of an
instrument. The power thus can be exercised
only when the deficiency of stamp duty in the
original instrument is noticed from its copy.
The purpose for which the instrument is being
called for has also been specifically provided
for in Subsection (4) as satisfaction of the
Collector as to the adequacy of the duty paid.
It is evident from Sub-section (5) that the
Collector has to provide time to the party
concerned to produce the instrument and it is
only on the non-production of the original
instrument within the time granted by the
Collector that he can take the copy of the
instrument as the basis for determining the
stamp duty and requiring its payment. The
two provisos of Subsection also provide a
time limit within which the action under
Section 33(4) and 33(5) can be taken. Subsections (4) and (5) of Section 33 do not
contain any such drastic power empowering
the Collector to seize or search any
document. The reasons given by the Apex
Court for holding the amended Section 73 as
applicable to Andhra Pradesh as ultra vires
the Constitution do not apply to the U.P.
Amendment contained in Sub-section (4) and
(5) of Section 33. In District Registrar v.
Canara Bank: ((2005) 1 SCC 496 : AIR 2005
SC 186) the Apex Court had found that the
drasticity and stringency of the power under
Section 73-A of the Andhra Amendment was
not proportional to the purpose to be
achieved. The Apex Court has specifically
noticed this aspect in paragraphs 43, 55 and
58 of the Reports quoted above. The Apex
Court also found that the production of
documents envisaged in Sections 31 and 33
of the Indian Stamp Act is voluntary and
unless the party concerned had itself
produced the document in the case of Section
31 for obtaining opinion of the Collector as
to chargeability of the instrument to duty
and its quantum and in the case of Section
33 for the purpose of being tendered in
evidence or its coming in the hands of the
authority in the course of performance of
his duty the Collector could not impose any
duty by compelling the production of the
document. The impact of the Andhra
Amendment was noticed in contrast to
these provisions and it was found that the
power of inspection contained therein was
drastic and such drasticity was not
proportional to the purpose which it could
be expected to achieve. Section 33 however
has been amended in U.P. and it has been
provided that if as a consequence of a
direction by the Collector to produce the
original instrument the instrument is so
produced, the same shall be deemed to
have come in the hands of the Collector in
the performance of his duty. The U.P.
Amendment introducing Sub-sections(4)
and (5) of Section 33 does not give any
power to compel the production of the copy
of
the
instrument
or
the
original
instrument. Sub-sections(4) and (5) of
Section 33 do not invade the right to
privacy. Section 73 of the Indian Stamp Act
has also been amended and the new
provisions of Section 73-A introduced in the
State of U.P. do not suffer from the vice of
drasticity from which the Andhra Pradesh
Amendment suffered. Indeed the petitioner
has not challenged the validity of Section
73-A substituted in the State of U.P. The
U.P. Amendment has provided safeguards
against the arbitrary exercise of the powers
of search and seizure and such power can
be exercised only in a situation where the
Collector has reason to believe that any
instrument chargeable with duty has not
been charged at all or has been incorrectly
charged. It is, however, not necessary to
examine the validity of Section 73-A as the
same has not been challenged.

I have already held that subsections (4) and (5) of Section 33 relate to
4 All. Harbhajan Singh Vs. The Commissioner Moradabad Division, Moradabad & Anr.
497
the recovery of deficient stamp duty upon
the original instrument and that stamp duty
is merely paid upon the copy for the reason
that the original not being available the
copy is made the basis for calculation of
duty. The cases cited above therefore have
no application. I have already held that the
provisions of sub-sections (4) and (5) of
Section 33 are supplementary to the other
provisions. There does not appear to be any
merit in the petitioner's contention that
Sections 33(4) and (5) are unworkable for
the reason that these provisions do not
determine the person who would be liable
to pay stamp duty on the copy. The
determination of person who is liable to
pay duty is governed by Section 29 of the
Act.
The
said
provision
would
be
applicable even where the provisions of
Sections (4) and (5) of Section 33 are
invoked because the duty which is being
sought to be recovered under these
provisions is the deficient duty on the
original instrument."

(emphasis supplied)

30. Last, in Aegis BPO Service Ltd.
vs. State of U.P. & Ors., (2010) 9 ADJ
237, another learned single-Judge of this
Court
made
the
following
pertinent
discussion as to the powers under Section
33(4) and 33(5) of the Act:

"The aforesaid provisions enable
the Collector on noticing deficiency in
stamp duty from the copy of the instrument
to take suo-motu action or on a reference
from any Court or from Commissioner,
Additional
Commissioner,
Deputy
Commissioner
or
any
other
officer
authorized by the Board of Revenue and to
call for the original instrument for the
purposes of satisfying himself as to the
adequacy of the stamp duty paid and in
case the instrument is not produced to
proceed
to
determine
the
deficiency
together with penalty on the copy of the
instrument.

In the case at hand, there is no
dispute that the copy of the instrument was
on
record
of
the
U.P.
Trade
Tax
Department. It was examined by the
Assistant
Commissioner
(Stamps)
in
exercise of powers under Section 73 of the
Act and thereupon on being satisfied that
proper stamp duty has not been paid on it,
he had made a reference to the Collector
under Section 33(4) whereupon Collector
had called upon the petitioner to submit the
original instrument. The petitioner having
failed to produce the original, the Collector
proceeded to determine the deficiency on
the basis of the copy of the instrument as
provided under Section 33(5) of the Act. In
such a situation, no error of jurisdiction
has been committed by the Collector in
passing the impugned order."

(emphasis supplied)

31. Looked in that light, the decisions
cited by learned counsel for the petitioner are
of no help. In Hariom Agrawal (supra),
plainly, the issue was entirely different and
confined to the power of the stamp authorities
to impound a photocopy of an instrument. To
the extent, the only submission that may find
acceptance here is, the stamp authorities have
erred in impounding the photocopy of the
instrument, as no such power exists under the
Act. Other than that, the said decision is of no
help to the petitioner. Rather, the reasoning
contained in paragraph nos.18 and 19 of the
said report runs contrary to the case being set
up by the petitioner. Relevant to our
discussion, paragraph nos.18 and 19 of the
said report are extracted below:

"18. Section 48-B is a provision
applicable in the State of Madhya Pradesh
which was inserted by the Stamp (M.P.
498 INDIAN LAW REPORTS ALLAHABAD SERIES
Amendment) Act, 1990 (24 of 1990) in
Chapter IV under heading "Instrument not
duly stamped" of the Act. This section reads
as under:

"48-B. Original instrument to be
produced before the Collector in case of
deficiency.--Where the deficiency of stamp
duty is noticed from a copy of any
instrument, the Collector may, by order,
require
the
production
of
original
instrument from a person in possession or
in custody of the original instrument for the
purpose of satisfying himself as to the
adequacy of amount of duty paid thereon. If
the original instrument is not produced
before him within the period specified in
the order, it shall be presumed that the
original document is not duly stamped and
the Collector may proceed in the manner
provided in this Chapter:

Provided that no action under
this section shall be taken after a period of
five years from the date of execution of
such instrument."

19. On a plain reading of Section
48-B, we do not find that the submission of
the learned counsel for the appellant that
by virtue of this provision the Collector has
been authorised to impound even copy of
the instrument, is correct. Under this
section where the deficiency of stamp duty
is noticed from the copy of any instrument,
the Collector may call for the original
document for inspection, and on failure to
produce the original instrument could
presume that proper stamp duty was not
paid on the original instrument and, thus,
recover
the
same
from
the
person
concerned. Section 48-B does not relate to
the instrument i.e. the original document to
be presented before any person who is
authorised to receive the document in
evidence to be impounded on inadequacy of
stamp duty found. The section uses the
phraseology "where the deficiency of stamp
duty is noticed from a copy of any
instrument". Therefore, when the deficiency
of stamp duty from a copy of the instrument
is noticed by the Collector, the Collector is
authorised to act under this section. On
deficiency of stamp duty being noticed from
the copy of the instrument, the Collector
would
order
production
of
original
instrument from a person in possession or
in custody of the original instrument.
Production is required by the Collector for
the purpose of satisfying himself whether
adequate stamp duty had been paid on the
original instrument or not. In the notice
given to person in possession or in custody
of original instrument, the Collector shall
provide for time within which the original
document is required to be produced before
him. If, in spite of the notice, the original is
not produced before the Collector, the
Collector would draw a presumption that
original document is not duly stamped and
thereafter may proceed in the manner
provided in Chapter IV. By virtue of the
proviso, the step for recovery of adequate
stamp duty on the original instrument on
insufficiency of the stamp duty paid being
noticed from the copy of the instrument,
can only be taken within five years from the
date of execution of such instrument. The
words "the Collector may proceed in the
manner provided in this Chapter" have
reference to Section 48 of the Act. Under
this section, all duties, penalties and other
sums required to be paid under Chapter IV,
which includes stamp duty, would be
recovered by the Collector by distress and
sale of the movable property of the person
who has been called upon to pay the
adequate stamp duty or he can implement
the method of recovery of arrears of land
revenue for the dues of stamp duty. By
virtue of proviso to Section 48-B, the
Collector's power to adjudicate upon the
adequacy of stamp duty on the original
4 All. Harbhajan Singh Vs. The Commissioner Moradabad Division, Moradabad & Anr.
499
instrument on the basis of copy of the
instrument is restricted to the period of five
years from the date of execution of the
original instrument. This section only
authorises the Collector to recover the
adequate stamp duty which has been
avoided at the time of execution of the
original instrument. This section does not
authorise the Collector to impound the
copy of the instrument."

(emphasis supplied)

32. Insofar as two decisions, both of
single-Judge bench strength - in the case of
Som Dutt Builders (supra) and Smt.
Prabha Juglani (supra) are concerned, their
ratio are distinguishable. The issue involved
was different. In Som Dutt Builders (supra),
the issue involved dealt with by a learned
single- Judge bench of this Court were -
whether proceeding under Section 33(1) of
the Act could arise without impounding the
original
document
and
whether
such
proceeding initiated (in that case) were time
barred. Those issues do not arise in this case.

33. The decision in the case of Smt.
Prabha Juglani (supra) arose upon different
facts. In that case, the petitioner was not
visited with any prior notice under Section
33(4) of the Act, requiring her to produce the
original of any particular document. Later, the
stamp duty liability was imposed on the
photocopy of a document purportedly
executed by her. The later discussion in that
judgement arises without reference to either
Girjesh Kumar Srivastava (supra) or Tata
Teleservices Limited (supra) or Aegis BPO
Service Ltd. (supra) or Som Dutt Builders
(supra). Therefore, that decision would
remain confined to the facts of that case.

34. Insofar as the Jupudi Kesava
Rao (supra) is concerned, the said decision
was with respect to admissibility of
photocopy of an instrument as secondary
evidence in a suit proceeding. Referring to
provisions of Section 35 and 36 of the Act,
the Supreme Court opined in the negative.
That ratio is plainly inapplicable to the
present case.

35. In face of the law that appears
clearly laid down by the Supreme Court,
Special Bench, Division Bench and as
applied by another learned single-Judge
bench, in Aegis BPO Service Ltd. (supra),
I find myself bound to apply the same. No
reference to a larger Bench is required as it
is the law laid down by the Supreme Court
and larger bench strength of this Court that
are binding and not any inconsistent
decision by a bench of lesser bench
strength, of this Court.

36. As to the submission of learned
counsel for the petitioner relying on the
Rules, the same cannot be accepted.
Undisputedly, the Rules have been framed
under Section 69 of the Registration Act,
1908 and not under the Act. The Act is a
complete code in itself to provide for
levies, assessment and recoveries of stamp
duty on various instruments. It choses to
use the word 'copy' under Section 33(4) of
the Act specifically for the purpose of
recovery of deficient stamp duty if the
original is not produced in compliance of
notice issued under Section 33(4) of the
Act.

37. To accept the contention of
learned counsel for the petitioner by either
relying on the Rules or the situations
contemplated under Section 6A of the Act,
to confine the recovery of stamp duty to
cases pertaining to true copies of the
original
document
submitted
for
the
purpose of registration etc. only, would be
to unreasonably restrict the area of
500 INDIAN LAW REPORTS ALLAHABAD SERIES
operation of Section 33(4) read with
Section 33(5) of the Act. The recovery
under those provisions arises upon adverse
inference drawn due to non-production of
the original. The Act allows the taxing
authority to assume the existence of nonduty paid, original document (in face of
refusal
or
failure
on
part
of
the
assessee/person-chargeable-to-duty
to
produce original of such document) and
realise the full duty and penalty imposable
on the original instrument had it been
produced. That being the plain import of
deeming fiction of law, created solely for
the purpose of recovering the deficient
stamp duty and penalty, there is no warrant
to curb or ignore it.

38. In the present case, the petitioner
confined his objection (before the stamp
authorities) to the provisions of Section
33(1) of the Act. However, on plain
perusal, the proceedings arose under
Section 33(4) read with Section 33(5) of
the Act. Mere wrong section description
may never be enough to annul the recovery.
It is not a jurisdictional error. The
procedure
prescribed
under
the
enabling/correct law is not shown to have
been violated. The order of the Collector
clearly recites - upon receipt of a report
dated 5.7.2014 submitted by the Assistant
Collector Stamp, a show cause notice was
issued to the petitioner on 15.5.2015 to
produce the original of the photocopy of
the
agreement
dated
12.11.2013,
by
03.6.2015. Undisputedly, the petitioner did
not produce the same.

39. Therefore, there is no error in
assumption of jurisdiction under Section
33(5) read with Section 40 of the Act. The
petitioner was given an opportunity to reply
to the show cause notice. That he did.
However, in that reply, he confined his
defence to the provisions of Section 33(1)
of the Act. Insofar as the proceedings are
not traceable to the provisions of Section
33(1) of the Act, the objection raised by the
petitioner, to that extent, was of no avail.

40. To the other challenge, it is seen,
the photocopy of the instrument, copy of
which has been annexed to the affidavit of
the State filed on 29.11.2018 refers to a
transaction in the nature of an agreement to
sell. It bears photocopy of the signatures of
the persons described as vendors and
vendee/petitioner. Also, photocopies of
signatures of witnesses appear to exist on
the same.