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Judgment
Vinod K. Sharma, J.—The Petitioner prays for issuance of a writ, in the nature of certiorari, to quash the demand notice issued by the
Collector, Tirunelveli, asking the Petitioner to deposit a sum of Rs. 8,52,618/- [Rupees Eight Lakhs and Fifty Two thousand six hundred and
Eighteen only] representing the deficit of the stamp duty.
The reading of the order shows, that the basis of the demand is an audit objection, by the Accountant General.
It is not in dispute, that the lease deed in favour of the Petitioner was duly executed and registered by the Registrar. In case of deficit stamp
duty, the recovery can be effected only u/s 33(A) of the Indian Stamp Act, which reads as under:
33-A. Recovery of deficit stamp duty.- (1) Notwithstanding anything contained in Section 33 or in any other provisions of this Act, if, after the
registration of any instrument under the Registration Act, 1908 (Central Act XVI of 1908), it is found that the proper stamp duty payable under
this Act in respect of such instrument has not been paid or has been insufficiently paid, such duty or the deficit, as the case may be, may, on a
certificate from the Registrar of the district under the Registration Act, 1908 (Central Act XVI of 1908) be recovered from the person liable to pay
the duty, as an arrear of land revenue:
Provided that No. such certificate shall be granted unless due inquiry is made and such person is given an opportunity of being heard:
Provided further that No. such inquiry shall be commenced after the expiry of three hears from the date of registration of the instrument.
(2)The certificate of the Registrar of the district under subsection(1) shall, subject only to appeal under Sub-section (3), be final and shall not be
called in question in any court or before any authority.
(3)Any person aggrieved by a certificate of the Registrar of the district under Sub-section (1) may appeal to the Chief Controlling Revenue
Authority. Any such appeal shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed.
The impugned order, prima facie, is in violation of Section 33-A of the Act, as No. enquiry was conducted by the learned Collector, nor the
Petitioner was given an opportunity of hearing.
It is well settled law that when a power is given under a statute, it has to be exercised independently by statutory authority and not on
instructions of anybody else. The impugned order further shows that exercise of power was on the direction of the Audit Department, and not
independently.
In any case, the order being against the provision of Section 33(A) of the Indian Stamp Act, reproduced above, it cannot be sustained in law.
The writ petition is allowed, the impugned order is quashed. The liberty is given to the Respondents to pass fresh order in accordance with law,
if so permissible. No. costs.