- (1.) VINEET Saran, J. The petitioner purchased a property constructed on land measuring 61. 34 square meters, sale-deed of which was executed on 19-7-2000. Rs. 19,100/- was paid as stamp duty on valuation of Rs. 1,91,000/ -. On a complaint filed by the Respondent No. 3, brother-in-law of the petitioner, notice under Section 47- A of the Indian Stamp Act was issued to the petitioner, to which the petitioner filed her objections. The Tahsildar was required to submit his report, which was done so by him on 23-8-2002. Thereafter vide order dated 16-11-2002 the District Stamp Officer assessed the valuation of the property at Rs. 8,58,760/- and accordingly found that there was deficiency of stamp duty of Rs. 66,800/- plus Rs. 1,180/- of registration fee and further imposed a penalty of Rs. 37,408/-, all to be paid alongwith interest. Challenging the said order the petitioner filed an appeal, which had been decided by the Commissioner, Bareilly Division, Bareilly by order dated 30-7-2004, whereby the penalty imposed by the District Stamp Officer had been withdrawn, but the order regarding deficiency of stamp duty and registration fee alongwith interest had been upheld. Aggrieved by the aforesaid orders dated 16-11-2002 and 30-7-2004 of the District Stamp Officer and the Commissioner, Bareilly Division, Bareilly respectively, the petitioner has filed this writ petition.
(2.) I have heard Sri Siddharth, learned Counsel for the petitioner, as well as learned Standing Counsel appearing for the respondents. Pleadings have been exchanged and with consent of the learned Counsel for the parties, this writ petition is being disposed of at this stage. The enhancement in the valuation of the property in question has been made primarily on the ground that the property, which consists of five rooms, has collectively been treated as five independent shops on the ground that the same have the potential to be used for commercial purpose. Thus, after calculating the value of the land and the estimated rental value of the building in question, the valuation had been assessed at Rs. 8,58,760/-, on which the stamp duty payable had been determined. The Tahsildar, vide his report dated 23-8-2002 prepared after inspection of the property, had clearly stated that the property in question was not being used for commercial purposes as no commercial activity was being carried on there; that the property was away from the main road; that the building was more than 30 years old; that the property consisted of 5 rooms (total measuring 12 feet x 55 feet) which had been built in a row and there was only one common entrance and that the first room of the property opening on the road could be used, in future, as a shop. Treating the first room of the property as a shop, on the basis that it could be used as such in future, and treating the remaining four rooms of the property for residential use, the Tahsildar assessed the valuation of the property at Rs. 2,13,507/ -.
(3.) IN the orders of the authorities below, the report of the Tehsildar has been discarded without assigning any reason. Even the exemplar filed by the petitioner, which was a sale-deed dated 2-5-2002 of a property in the vicinity, measuring about 62 sq. meters, which was sold for Rs. 1,68,000/-, has not been considered, although the said sale-deed was executed two years subsequent to the sale-deed of the petitioner and was for approximately the same area but for a lesser valuation and had been accepted for registration without complaint. Further, there is no evidence to show that the five rooms were being used as shops. Even otherwise, it is not possible that a building with five rooms constructed in a row, with only one entrance from the first room and exit from the fifth room into a lane, can be used for commercial purposes as five separate shops. Even the Tahsildar in his report had only opined that the first shop in the row, which has an opening on the road, could be used as a shop in future. After calculating the valuation of the first room (measuring 5. 19 meters) as a commercial property and the remaining rooms as residential, the valuation, as per the Tahsildar's report, comes to Rs. 2,13,507/ -. Admittedly, even as per the said report of the Tahsildar, the first room of the property in question was also not being used as a shop, but could only be used for such purpose in future. The valuation of a property for the purposes of payment of stamp duty, is not to be determined on the basis of the potential which it may have, but on the value for which it has been sold. The valuation for purposes of payment of stamp duty can be reassessed as a commercial property only if it is being used as such, and in the absence of there being any evidence that the property in question was actually being used as five different shops, only on the basis of presumption that it has the potential of being used for commercial purpose, the valuation of the same for the purpose of payment of stamp duty, cannot be increased.;