R.R.Rastogi, J. - (1.) The questions referred to us for opinion under Section 57 of the Indian Stamp Act are:- 1. Whether an instrument of simple mortgage (Mortgage without possession of immovable property situated in an area to which the U. P. Town Improvement Act 1919 (VIII of 1919) as amended by the Local Self Government Laws (Amendment) Act, 1966 (XXIX of 1966) has been made applicable) is a deed of transfer of immovable property within the meaning of Section 67-H of the said Act? 2. Whether a public officer is barred from impounding (a document) under Section 33 and the Collector is barred from imposing any deficit duty and penalty under Section 40 and realising the same under Section 48 of the Stamp Act on a deed of transfer of immovable property situated in an area to which the U. P. Town Improvement Act, 1919 applied, on which stamp duty as payable under the Stamp Act only has been paid and the increased duty under Section 67-H of the Town Improvement Act has not been paid? On 7-4-1973 M/s. Electronic Industries of India 24 G. T. Road. Mohan Nagar, Ghaziabad executed a mortgage deed in favour of the U. P. Financial Corporation whereby the property of the borrower situated at Ghaziabad within the area to which the U. P. Town Improvement Act applied, was mortgaged to secure a loan of Rupees 6,36,000/-.
(2.) On 1st September, 1973 the Inspector of Stamps examined this document. Having found that the document was not properly stamped he impounded the same in his capacity as Collector, appointed under the U. P. Government Notification No. C-4138/X525 dated August 28, 1928. According to the Inspector, the stamp duty was deficient by Rs. 1,272.00. M/s. Electronic Industries of India paid deficiency demanded from it under protest and then submitted an application under Section 45 of the Stamp Act for its refund. The main ground on which the application had been filed was that the duty was not payable. This gave rise to two questions which have already been stated above.
(3.) For the sake of facility, we will take up question No. 2 first. The controversy involved is whether the Collector had any authority to impound the document and to impose penalty under Sections 33 and 40 respectively. The Indian Stamp Act, 1899 contains a comprehensive scheme about the levy, collection and realisation of stamp duty chargeable under it on the various instruments enumerated in various Articles of the Schedules appended to it. It is a self contained Code. Section 2 of the aforesaid Act deals with the definition of the various words used in the Act. Section 3 provides for the instruments which should be chargeable with duty. Sections 10, 11 and 12 deal with the mode of using stamps. Section 13 provides the manner in which instruments upon stamped paper with impressed stamps have to be written. Section 27 requires that the consideration and all other facts and circumstances, affecting the chargeability of any instrument with duty, or the amount of such duty, should be fully and truly set forth in the instrument. Chapter IV deals with instruments not duly stamped. Section 33 of this Chapter deals with the power of impounding the documents by an officer authorised to do so if he finds that an instrument is not duly stamped. Section 40 empowers the Collector impounding any instrument to impose penalty not exceeding ten times of the amount of deficiency in duty. Section 48 makes the provisions for the recovery of duties and penalties from whom the same are due. Section 64, with which we are also concerned in the present case, is a provision dealing with the imposition of penalty for omission to comply with the provisions of Section 27. Section 27, as we have already said above, requires full facts and circumstances affecting charge-ability of the duty to be set forth,;