# Smt. Asha Kapoor v. Addl. Collector, Ghaziabad and others

- **Citation:** (2008) 2 ILRA 429
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-19
- **Case number:** Civil Misc. Writ Petition No.14481 of 2008
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-asha-kapoor-v-addl-collector-ghaziabad-and-others-41070
- **Pages:** 3

## Headnote

Indian Stamp Act 1899-Section 56 (1-A)-
Penalty-In
insufficient
of
stamp-No
guide
line
regarding
imposition
of
penalty-government to frame proper
rule-so
long
the
allegation
of
concealment of valuation of property-or
specific finding recorded-penalty can not
be imposed.

Held: Para 7

The penalty can be imposed, if there is
an attempt to evade the stamp duty. The
penalty presupposes culpability and an
intention to conceal or to play fraud with
the authorities. Whereas there is any
reasonable
doubt
with
regard
to
valuation of the property, and nothing
material is found to have been concealed
by the petitioner in execution of the
document, the authorities will loose their
discretion
to
impose
penalty.
The
enhancement of the valuation on the
basis of the finding that the property has
a
potential
user
as
residential
or
industrial purposes, is subject to appeal.
Before imposing penalty, the authorities
must record findings based on relevant
material that the purchaser or the
person liable to pay stamp duty had
concealed the relevant facts in execution
of sale deed, and had intension to evade
the payment of stamp duty. These
powers cannot be mechanically used in
every case.

## Text

2 All] Smt. Asha Kapoor V. Addl. Collector, Ghaziabad and others
429
12. With these observations, this
application is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2008

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No.14481 of 2008

Smt. Asha Kapoor

...Petitioner
Versus
Addl. Collector, Ghaziabad and others

...Respondents

Counsel for the Petitioner:
Sri V. Singh
Sri K.K. Pandey

Counsel for the Respondents:
S.C.

Indian Stamp Act 1899-Section 56 (1-A)-
Penalty-In
insufficient
of
stamp-No
guide
line
regarding
imposition
of
penalty-government to frame proper
rule-so
long
the
allegation
of
concealment of valuation of property-or
specific finding recorded-penalty can not
be imposed.

Held: Para 7

The penalty can be imposed, if there is
an attempt to evade the stamp duty. The
penalty presupposes culpability and an
intention to conceal or to play fraud with
the authorities. Whereas there is any
reasonable
doubt
with
regard
to
valuation of the property, and nothing
material is found to have been concealed
by the petitioner in execution of the
document, the authorities will loose their
discretion
to
impose
penalty.
The
enhancement of the valuation on the
basis of the finding that the property has
a
potential
user
as
residential
or
industrial purposes, is subject to appeal.
Before imposing penalty, the authorities
must record findings based on relevant
material that the purchaser or the
person liable to pay stamp duty had
concealed the relevant facts in execution
of sale deed, and had intension to evade
the payment of stamp duty. These
powers cannot be mechanically used in
every case.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard learned counsel for the
petitioner and learned standing counsel
for all the respondents. With the consent
of parties, the matter was heard and is
finally disposed of at the admission stage.

2. The petitioner preferred an appeal
No. 53 of 2007-08 against an order dated
10.12.2007 passed by the Additional
Collector
(Finance
&
Revenue)
Ghaziabad, by which in a Stamp Case No.
426/2006-07 under Section 47 A of Indian
Stamp Act in respect of sale of Khasra
No. 2049 Gha area 0.0942 hectares situate
in village & Pargana Dasna, District
Ghaziabad
by
document
No.
8223/9.10.2006, it was found that the
market value of the property was much
higher and while assessing the market
value at the residential rates the petitioner
was required to pay Rs.1,36,900/- as
deficiency in stamp duty and Rs.73,100/-
as penalty (total Rs. 2 lacs) with 1.5%
interest per month. The Commissioner,
Meerut Division, Meerut has, by his order
dated 16.1.2008, while admitting the
appeal and summoning the records,
directed the petitioner to deposit one-half
of the disputed amount as a precondition
for stay for a period of two months.

3. It is contended that the condition
of deposit is highly onerous and that the
order was not considered on merit before
430 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
directing the parties to deposit one-half of
the amount. It is further contended that
the deposit of one-half of the amount is
against the statutory requirement of
deposit of one-third of the disputed
amount under the proviso to Section 5 (1A) of Indian Stamp Act, 1899 (in short
the Act) as amended by UP Act No.
38/2001.

4.

Learned
standing
counsel
contends that the appellate authority has
exercised the discretion in accordance
with the law, and that the deposit of one
half of the amount includes one third of
the disputed amount for the purposes for
grant of stay of the remaining amount.

5. The order would show that the
appellate authority has considered a
limitation imposed by law by proviso to
Section
56
(I-A)
of the Act for
considering the stay application. The
Chief Controlling Revenue Authority may
admit an appeal but he should not have
allowed his discretion to consider the stay
application until one third of the disputed
amount was deposited and which includes
deficiency in stamp duty, registration
amount and penalty. The deposit of one
third is a precondition for consideration of
stay application. The object to deposit
atleast one third before the discretion to
grant interim order is considered appears
to collect at least one third of disputed
amount by the revenue as the appeal may
remain pending indefinitely.

6. The High Court had earlier held
that the assessing authority does not have
power to impose penalty. The Act was
amended by state amendment vide UP
Act No. 38 of 2001 by which the powers
to impose penalty upto the extent of four
times
was
given
to
the
assessing
authority. Sub section (4) of Section 47 A
of the Act, as amended by UP Act No. 38
2001 is quoted as below:-

"47-A (4) If on enquiry under subsection (2) and examination under subsection (3), the Collector finds the market
value of the property-
(i) truly set forth and the instrument
duly
tamped,
he
shall
certify
by
endorsement that it is duly stamped and
return it to the person who made the
reference;
(ii) not truly set forth and the instrument
not duly stamped, he shall require the
payment of proper duty or the amount
required to make up the deficiency in the
same, together with a penalty of an
amount not exceeding four times the
amount of the proper duty or the
deficient portion thereof. "

7. The penalty can be imposed, if
there is an attempt to evade the stamp
duty. The penalty presupposes culpability
and an intention to conceal or to play
fraud with the authorities. Whereas there
is any reasonable doubt with regard to
valuation of the property, and nothing
material is found to have been concealed
by the petitioner in execution of the
document, the authorities will loose their
discretion
to
impose
penalty.
The
enhancement of the valuation on the basis
of the finding that the property has a
potential user as residential or industrial
purposes is subject to appeal. Before
imposing penalty, the authorities must
record findings based on relevant material
that the purchaser or the person liable to
pay stamp duty had concealed the relevant
facts in execution of sale deed, and had
intension to evade the payment of stamp
duty.
These
powers
cannot
be
mechanically used in every case.
2 All] Suresh Prasad Gautam V. State of U.P. and others
431
8. The conferment of discretion of
award of four times penalty in the hands
of executive authorities exercising quasijudicial powers should be provided with
sufficient guidelines by the legislature. In
the present case the act and rules do not
provide for any guidelines for imposing
penalty which may exceed to four times
of the amount of the proper duty or
deficient portion thereof. The State
Government should legislate to provide
sufficient guidelines in this regard, to
check the misuse of powers by the
authorities constituted under the Act.

9.

In
the
present
case
the
Commissioner has not insisted upon
deposit of third amount of deficiency and
penalty before he considered the stay
application.

10. The order as such cannot be
sustained. At the same time it may be
pointed out that the provisions of deposit
of one third amount, including the penalty
for which no reason have been given,
appear too highly onerous to be conceded.

11. The writ petition is allowed. The
order
dated
16.1.2008
passed
by
Commissioner, Meerut Division, Meerut
is set aside. The petitioner will deposit
one third of the amount of deficiency and
penalty
for
consideration
of
stay
application. The Commissioner will pass
fresh order on stay application only if
petitioner deposits one third amount of the
disputed amount.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition 59584 of 2007
Connected with-
Civil Misc. Writ Petitions Nos. 59057 of
2007, 63423 of 2007, 12130 of 2008, 828
of 2008, 3992 of 2008, 372 of 2008, 370
of 2008, 521 of 2008, 3539 of 2008, 2739
of 2008, 5135 of 2008, 1630 of 2008

Suresh Prasad Gautam
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Udayan Nandan

Counsel for the Respondents:
Sri K.K. Chand
S.C.

Constitution of India, Art. 226-Selection
for Special B.T.C. course-under 10%
quota those Shiksha Mitra completed 36
months-working
on
the
date
of
application-held can be considered-but
who were selected for the current
session but running on leave can not be
denied.

Held: Para 7

Having considered the submissions of
the counsel for the parties, this Court
holds that a candidate who wants to
apply in the Shiksha Mitra category for
the Special B.T.C. Training Course 2007
must have the requisite qualifications as
per
the
Government
Order
dated
10.7.2007, namely, a graduation degree
and
a
B.Ed.
degree.
Further,
the
candidate should have an experience
certificate of three academic sessions
and should also be working in the