- (1.) P. K. Jain, J. Heard Sri H. N. Sharma, learned counsel for the petitioner and the learned standing counsel representing the State.
(2.) BY the present writ petition, the petitioner challenges the order of the Collector (Annexure-5 to the writ petition) and the order of the revisional Court (Annexure-6 to the writ petition ). Brief question raised for considera tion is whether while acting under Section 47-A of the Indian Stamp Act, 1899 on the report of the Registering authority the Col lector can impose penalty as envisaged in Section 40 of the Indian Stamp Act 1899 (hereinafter called as the Act) Admitted facts ace that the petitioner presented before the Sub-Registrar, Bindki, district Fatehpur a Waqfnama which is said to have been ex ecuted by one Mukhlal in favour of Banumanii Maharaj Virajman, Mandir. In the said Waqfnama valuation of the property was not mentioned. The Sub- Registrar, therefore, referred the matter to the Collec tor, Fatehpur under Section 47-A of the Act for determination of the market value of the property involved in the said deed so that proper stamp fee payable by the petitioner may be determined. The Collector on such a reference fixed the market value at Rs. 46,475 and deficiency in the stamp duty at Rs. 1745. 75 paise and further imposed penalty of Rs. 8178. 75 paise, being five times of the stamp duty evaded by the petitioner. The revisional authority upheld the order of the Collector observing that penalty could be imposed under Section 40 of the Indian Stamp Act.
(3.) DURING arguments learned counsel for the petitioner conceded that he was ready to pay the amount of duty fixed by the authorities below but he seriously challen ges the orders of the authorities below im posing penalty. His main contention is that in a case referred under Section 47-A to the Collector he has no authority to impose any penalty. In support of his contention the learned counsel for the petitioner has referred to a Division Bench case of this Court reported in AIR 1986 Allahabad-107, Kaka Singh v. The Additional Collector and District Magistrate (Finance and Revenue Bulandshahar and another In paragraph 17 the Division Bench of this Court held as follows: "we find force also in the argument of the petitioner's learned counsel that since Section 47a does not empower the Collector to impose penalty in the event of his finding that the market value was not truly set forth in the instrument, such an order imposing the same would be beyond Section 47-A. For imposing penalty in a case like the present, power was specifically to be con ferred. In the absence of a specific provision made in that respect, it is not possible to uphold the contention of the Standing Counsel that penalty could be imposed whenever and wherever the Collector under Section 47-A finds that the value set forth was not true. While enacting Section 47-A, the legislature, although empowered the Collector to determine the market value of the property, which is the subject of conveyance and the duty payable thereon, it did not make any provision empowering the Collector to impose penalty. " 6, A plain reading of Section 47-A of the Act amended by U. P. Amendment Act No. 11 of 1992 would show that the powers under Section 47-A to the Collector are restricted to determining the market value of the property and the proper duty payable thereon. There is nothing in Section 47-A of the Act which empowers the Collector to impose any penalty in such cases. The revisional Court in its order dated 9-7-79 observed that under Section 40 of the Act the Collector was empowered to impose a penalty not exceeding ten times the amount of the duty or of the deficient portion of the duty. The view taken by the revisional Court does not appear to be correct. It is well settled that Section 40 of the Act can applies only whenever instrument is impounded under Section 33 or it is sent to the Collec tor by an authority receiving the said instru ment in original as evidence under Section 38 (2) of the Act. None of these conditions are satisfied in the present case and, there fore, the view taken by the revisional authority that the penalty could be imposed under Section 40 of the Act can not be upheld. 7. In view of the foregoing discussions the petition deserves to be partly allowed and is hereby partly allowed. The orders of the authorities below imposing penalty of Rs. 8178. 75 paise hereby quashed. 8. The stay order dated 14-9-79 is hereby vacated. Petition partly allowed. .;