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OM PRAKASH GOEL versus COMMISSIONER & OTHERS

High Court of Judicature at Allahabad

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Om Prakash Goel v. Commissioner & Others - WRIT - C No. 51364 of 2002 [2005] RD-AH 6423 (25 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                       Court No.38

Civil Misc. Writ Petition No. 51364 of 2002

Om Prakash Goel            Vs.           Addl. District Magistrate & others

Hon'ble Vineet Saran, J

After the Gorakhpur Vikas Mandal Nigam, an undertaking of the U.P. Government, was proposed to be wound up, the Modern Rice Mill, Kaptanganj, which was owned by Gorakhpur Vikas Mandal Nigam, was put up for sale. Tenders were invited in which the highest offer was that of the petitioner which was for Rs. 16.11 lacs. However, on 3.11.1998, after negotiation with the Chairman of the Nigam (who was the Commissioner of the Division), the price set up for the sale of the Modern Rice Mill was fixed at Rs. 16.51 lacs. An instrument of sale was executed by the Commissioner/Chairman of the Nigam on 1.5.1999, on which stamp duty at the rate of 8% was paid on the negotiated sale price of Rs. 16.51 lacs which came to Rs.1,32,201/-. The Sub Registrar made a reference under section 47-A of the Indian Stamp Act stating that although as per the report of the Lekhpal the stamp duty paid on the valuation shown in the document is sufficient but calculating the market value of the land at the circle rate fixed for the area, the price of the land would be much higher. Thus in the reference made to the Additional District Magistrate, the Sub Registrar stated that in the aforesaid facts, if a case for deficiency of stamp duty is made out, then the case may be registered or else the document may be returned back to him for appropriate action. The Additional District Magistrate thereafter, vide order dated 6.1.2000, held that there was deficiency of stamp duty of Rs. 74,179/- as the stamp duty ought to have been determined under Article 18 of Schedule 1-B of the Indian Stamp Act requiring payment of stamp duty at the rate of 12.5%, and not under Article 23 where stamp duty of only 8% is required (as per the Notification no. KSB-5-3706/II-98 dated 31.8.1998). The petitioner thereafter filed a revision before the Chief Controlling Revenue Authority (Commissioner), Gorakhpur Division, Gorakhpur which was dismissed vide order dated 28.8.2002. Aggrieved by the aforesaid orders dated 6.1.2002 and 28.8.2002 passed by Respondent nos. 2 and 1 respectively the petitioner has filed this writ petition.

I have heard Sri Prabodh Gaur, learned counsel for the petitioner as well as learned Standing counsel appearing on behalf of the Respondents. Counter and rejoinder affidavits have been exchanged between the parties.

Article 18 of Schedule 1-B of the Indian Stamp Act relates to imposition of stamp duty in the case of a certificate of sale granted to a purchaser of any property sold by public auction. Article 23 relates to imposition of stamp duty on a conveyance deed. For the purposes of determining the nature of the document, it is the document which has to be looked into. The deed by which the transfer of the property in question is sought to be registered is in the nature of  conveyance as the sale price is said to have been fixed after negotiations. It cannot be said to be a certificate of sale granted to the purchaser of any property sold by public auction.  The finalization of the process was not through auction but by private negotiations as has been mentioned in the deed itself. Thus the reason for enhancing the stamp duty on the basis that the document in question would be covered by Article 18, and not by Article 23, is wholly baseless. In the facts and circumstances of this case the document in question would be covered by Article 23 of Schedule 1-B of the Indian Stamp Act and the stamp duty already paid, which was in accordance with the Notification issued by the State Government, would be sufficient.

For the foregoing reasons, the impugned orders dated 1.6.2000 and 28.8.2002 passed by the Additional District Magistrate and the Commissioner respectively deserve to be quashed and are hereby set aside. The document presented shall be registered on the stamp duty already paid. Any amount deposited by the petitioner under the interim order granted by this Court shall be refunded to him.

This writ petition stands allowed. No order as to cost.

Dt/- 25.11.2005

dps


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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