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created Jan 25th, 05:03 by Shivani shorthand



462 words
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Shri Sanjay Agrawal, learned senior counsel appearing for the petitioner has contended that the impugned order has been assailed on two counts- firstly, that the same has been issued in violation of principles of natural justice as no opportunity of hearing was provided to the petitioner before passing the order. Although according to him, in the order it is shown that notice was issued and served upon the petitioner despite that, he did not appear before the authority and as such, ex parte order was passed. According to Shri Agrawal, copy of notice has been obtained through RTI over which no acknowledgment of receipt of notice is available and as such, it is clear that no notice has ever been served upon the petitioner and secondly that the agreement which is the subject matter of the impugned order was executed between petitioner and respondent no.2 on 18.03.2011 does not fall within the ambit of ‘instrument’ referred in clause 5(d) of Schedule I-A appended with the Act, 1899. Counsel for the petitioner submits that the order has also been assailed on the ground of competency saying that the authority, after a period of five years from the date of execution of the agreement, has no jurisdiction to pass any order in view of provisions of Section 48-B of the Act, 1899.
5. In rebuttal, the respondent no.1 has filed its reply justifying the order passed by the authority stating that notice has duly issued and served upon the petitioner. In support whereof, respondent no.1 has also filed the documents showing dispatch of notice upon the petitioner. It is also stated in the reply that petitioner has an alternative remedy of appeal and the impugned order is appelable and without availing the statutory remedy of appeal, the petition is not maintainable. It is also stated in the reply that Section 5(d) of Schedule I-A deals with an agreement which is the impugned agreement dated 18.03.2011 and recital of the same makes it clear that the it falls within the respective provision and, therefore, 2% stamp duty was required to be paid over the market value of the land but that was not done and, as such, the authority has rightly inflicted the penalty and also directed the petitioner to deposit the same along with deficit stamp duty. However, there is no submission with regard to the fact as to how the authority can exercise the power and inflict the penalty over the ‘instrument’ after a period of five years from the date of its execution because there is a clear embargo as per Section 48-B of the Act, 1899 upon the authority restricting them not to pass any order over the instrument with regard to deficit stamp duty after five years of its execution.

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