The classification of land for stamp duty purposes is determined by actual use and prior transactions, not merely by the absence of construction.

JUDGMENT :

SUBHASH VIDYARTHI, J.

1. Heard Sri Rajiv Kumar Bajpai, the learned counsel for the petitioner, Sri Hemant Kumar Pandey, the learned Standing Counsel for the respondents no. 1 to 3 and perused the records.

2. By means of the instant writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged validity of an order dated 22.03.2024 passed by the Assistant Commissioner (Stamp)-First, Lucknow in Case No. 2810 of 2023, under Section 47-A of the Indian Stamp Act, 1899, whereby a deficiency of Rs. 3,76,950/- in payment of stamp duty has been imposed upon the petitioner besides imposing penalty of Rs. 2,000/- registration fee amounting to Rs. 75,760/- as also fixing the liability to pay interest at the rate of 1.5% per month. The petitioner has also challenged validity of the judgment and order dated 07.08.2024 passed by the Deputy Commissioner (Stamp), Lucknow in Case No. 1836 of 2024, under Section 56(1-A) of the Indian Stamp Act, 1899, whereby the aforesaid order dated 22.03.2024 has been affirmed.

3. It is recorded in the order dated 22.03.2024 that the aforesaid case was registered on the basis of an inspection report dated 26.11.2022 submitted by the Sub-Registrar, Malihabad, Lucknow. The petitioner had filed objections stating that he has purchased agricultural land and has paid stamp duty accordingly. The land in question was agricultural land at the time of execution of the sale deed as well as at the time of filing of the objections. No declaration regarding change of user of land had been made under Section 143 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

4. An inspection of the land in question was carried out in presence of the petitioner. In the report dated 19.06.2023, the Sub-Registrar, Malihabad has stated that the constructions existed on the land bearing Khasra No. 56(Sa). A photograph of the land was also annexed with the report which shows existence of building on the land in question. A site plan was prepared by the Sub-Registrar wherein it is mentioned that the land was being used for residential purposes and plots had been carved out from the land.

5. The petitioner filed objections against the aforesaid report and on his request, a second inspection was carried out wherein it is stated that no construction exists on the land purchased by the petitioner. However, the land falls within the radius of 50 metres from other lands on which residential activities are being carried out and constructions exist.

6. The Assistant Commissioner (Stamp) has mentioned in the impugned order dated 22.03.2024 that documents bearing Nos. 7600/22, 3550/2023, 2654/2023 and 4369/23 have been executed in respect of other portions of the land bearing khasra No. 56(Sa) and stamp duty has been paid on all those sale deeds at non-agricultural rates from which it appears that the entire land is of residential nature. Accordingly, the Assistant Commissioner held that the land in question is liable to payment of stamp duty treating the same to be residential.

7. In revision, the order passed by the Assistant commissioner (Stamp) has been affirmed.

8. The learned counsel for the petitioner has submitted that when it is specifically mentioned in the second inspection report that the land in question is lying vacant and no construction exists thereon, the Assistant Commissioner has committed an error in fixing liability of payment of stamp duty treating a land to be residential.

9. Per contra, the Shri Hemant Kumar Pandey, the learned Standing Counsel has submitted that when other portions of khasra no. 56(Sa) have been sold as residential plots of land and constructions exist on other portion of the land bearing khasra No. 56(Sa), the authorities have not committed any error in treating the portion of land bearing khasra no. 56(Sa), which has been purchased by the petitioner, not to be residential land. He has further submitted that in none of the inspections, it was found that any