Hon’ble Pankaj Mithal, J.—Petitioner by means of the sale-deed dated 19.7.2008 purchased unfinished 4th floor of the building situate over Plot No. 7/190 Swaroop Nagar, Kanpur. He paid stamp duty on the market value disclosed and the sale-deed was registered.

2. Subsequently, on the basis of the report sent alongwith letter dated 10.11.2006 proceedings for determination of the market value and the deficiency in payment stamp duty were initiated. The Collector, Kanpur vide order dated 18.5.2009 determined the market value of the 4th floor portion by treating it to be a commercial property and accordingly deficiency in stamp duty was directed to be paid/realised. A penalty of equal amount of the deficiency in stamp duty was also imposed.

3. The aforesaid order was challenged by the petitioner by filing an Appeal No. 83 of 2008-09. The appeal was dismissed but the penalty imposed was reduced to half vide order dated 30.7.2009.

4. The petitioner has challenged both the above orders by means of the present writ petition.

5. I have heard Sri Pradeep Kumar, learned counsel for the petitioner and Sri Nimai Das, learned Standing Counsel for the respondents. They agree for the final disposal of the writ petition on merits at the admission stage itself on the basis of the affidavits already exchanged.

6. The first submission of Sri Pradeep, learned counsel for the petitioner is that the 4th floor portion of the building which the petitioner has purchased is a residential portion and therefore, the authorities fell in error in determining its market value by treating it to be a commercial property.

7. On the other hand, the submission of learned Standing Counsel is that in the sale-deed itself the petitioner accepts that the building is commercial-cum-residential and in view of the fact that the first three floors are being used for commercial purpose, a logical inference can be drawn that the 4th floor is also for commercial purposes.

8. Section 27 of the Indian Stamp Act specifically provides that the facts and circumstances affecting the chargeability of any instrument with duty, shall fully and truly be set forth in the instrument. Uttar Pradesh (Valuation of Property) Rules 1997, which have been framed under the aforesaid Act in Rule 3 also provides that in respect of instruments relating to immovable property, the particulars concerning chargeability of stamp duty as mentioned in the Rule must be fully and truly stated in addition to the market value of the property.

9. The sale deed in question dated 19.7.08 executed by the builders is Annexure-2 to the writ petition. It discloses the sale consideration to be Rs. 20,00,000/- and at the same time market value to be Rs. 32,02000/-. The property has been fully and completely described. It states that under the sale deed the 4th floor of the building which is in the shape of unfinished structure with undivided share in the land in the proportion of 62.71 square meters only is being transferred. The covered area is only 185.8 square meters. The sale-deed clearly states that the nature of the building is commercial-cum-residential. The recital of the sale deed further in unequivocal terms contains that the 4th floor which is unfinished structure is being transferred for residential purposes for a sale consideration of Rs. 20,00,000/- only and the petitioner is entitled to get the structure completed and finished at his own cost.

10. Petitioner has brought on record the permission granted by the Kanpur Development Authority to the builders to construct a building on the aforesaid land. The said permission is dated 24.5.2004 and is Annexure-1 to the writ petition. The said permission clearly mentions the usage of land to be ‘residential’.

11. The aforesaid two documents establish beyond doubt that the land use of the land on which the building stand is residential and that the building had been constructed both for commercial and residential purposes but without specifying the part