JUDGMENT
S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. On 9.1.2007 the following order was passed by me on the order sheet:
learned Counsel for the petitioner states that in case cost of machinery is deleted from the valuation of the property on which petitioner is required to pay stamp duty then he will not have any objection to the valuation determined by the A.D.M. Learned Counsel further states that he got no objection to the order of the Board of Revenue directing payment of stamp duty on the power of attorney included in the deed in question as by virtue of Article 48 of Scheduled 1-B to Stamp Act maximum stamp payable thereupon is Rs. 54/-.
3. Petitioners purchased a cold storage spread over an area of 15.12 acres. The area of the constructed portion was either 2 acres i.e. 87120 Sq. ft or 30740 sq. ft. Both the figures i.e. 2 acres and 30740 sq.ft are mentioned in the impugned order. This matter was heard on several dates, however, it could not be clarified that on what basis A.D.M mentioned that area of constructed portion was 30740 square feet. For the clarification of the said point on 16.1.2007, I passed a detailed order on the order sheet directing the case to be listed for further hearing on 7.2.2007. However, on 7.2.2007 the position not be clarified. The sale deed was executed on 26.2.198b Sale consideration shown in the sale deed Annexure II was Rs. 13 Lacs. Stamp duty of Rs. 149500/- was paid on the sale deed. The sale deed was impounded under section 47-A Stamp Act and Stamp case No. 102 of 1986 was registered on the file of A.D.M (F & R) Shahjahanpur. Sale deed was registered on 21.5.1986. Report of Tehsildar was called for. Naib Tehsildar reported that valuation of the entire property could be Rs. 1364040/-. S.D.M was also directed to give report. He also reported that market value of the sold property was about Rs. 13 lacs. A.D.M decided the matter on 22.1.1987. A.D.M himself inspected the property and determined the valuation on the following basis.
4. Market value of 13.12 acres of land @ Rs. 25000/- per acre = Rs. 328000/- (probably 2 acres from the total area was deleted as there was construction in the said 2 acres). The cost of constructed area of 30740 square feet @ Rs. 70/- per square feet = Rs. 2151800/-. Cost of machinery is Rs. 3 lacs including generator etc. Pump house including motor and tank one lac. Facilities in Engineers residence Rs. 50000/-(total Rs. 2929800/-). Thereafter 30% reduction was granted on every item except land. Ultimately valuation was held to be Rs. 2149260/-. Deficiency in stamp duty was determined to be Rs. 97692.50/-. An equal amount of penalty was also imposed.
5. In the sale deed, the sold property was described as Bhumidhan land having an area of 15.12 acres alongwith dilapidated buildings of M/s Sri Durga Ice and Cold Storage. Most of the vendors were partners in M/s Sri Durga Ice and Cold Storage.
6. As far as machinery and tank is concerned, the case of the petitioners was that they did not purchase any machinery, and after purchasing the land and building they themselves planted their own machinery. This version was not accepted by the authorities below. In any case, as in the sale deed there is no mention of any machinery, hence, even if there was some machinery permanently fixed to the earth at the time of execution of sale deed, its ownership did not pass through the sale deed. In view of the this petitioners could not be held liable to pay stamp duty on machinery.
7. Against the order of A.D.M dated 22.1.1987, petitioners filed revision before Chief Controlling Revenue Authority/Board of Revenue Allahabad being Stamp Revision No. 458 (P) of 1986-87. Revisional court through order dated 24.10.1988 remanded the matter to A.D.M. Through this writ petition, both the aforesaid orders have been challenged. Revisional court held that while determining cost of construction rate of Rs. 70/- per Sq. feet applied by A.D.M was without any basis. However, as learned Counsel for the petitioner has agreed for payment of stamp duty on land and building in accordance with the order of the A.D.M, hence, there is no need for redtermination of market value of land and building.
8. Accordingly writ petition is disposed of with the direction that stamp duty shall be paid by the petitioner on Rs. 1869260/-. This figure has been arrived at by deducting Rs. 280000/- (70% of four lacs) which was the amount for machinery and tank added by A.D.M. I have already held in the earlier part of this judgment that the said items were not included in the sale deed, hence, ownership of the said item did not pass and stamp duty on the said items could not be charged. Apart from the above, petitioner shall also pay an additional amount of Rs. 54/- for power of attorney under Article 48 of Schedule of l-u to Stamp Act.
9. Writ petition is accordingly disposed of. Both the impugned orders are modified accordingly.