Section 40

Chapter VIII: SUPPLEMENTAL PROVISIONS 73. Books, etc. to be open to inspection.— Every public officer having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may tend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorised 'in writing by the Collector to inspect for such purpose the registers, books, papers, documents and proceedings, and to take such notes and extracts as they may deem necessary, without fee or charge. 74. Power to make rules relating to sale of stamps.—The State Government may make rules for regulating— (a) the supply and sale of stamps and stamped papers, (b) the persons by whom alone such sale is to be conducted, and (c) the duties and remuneration of such persons: Provided that such rules shall not restrict the sale of ten naye paise or five naye paise adhesive stamps. {S.O. 1367 dated the 11th October, 1982— In exercise of the powers conferred by clause (a) of sub-section (1) of Section 9 and Section 74 of the Indian Stamp Act, 1899 (Act no. 2 of 1899). the Governor of Bihar is ploased to make rules that the duties of Stamp vendors and duties of Katibs (Deed writers) must not be performed by the same individual, 2. In view of the cleanliness of the Administration and for checking forgery and defaications it is highly desirable that the duties of a stamp vendor and that of deed writer should not be performed by the same person or individual, 3. This notification will come in force at once. [There is another notification also | Section 40: (a) 40. (a) If accompanied by Articles of Association under section 17 of the Indian Companies Act, 1913 (VII of 1913) (b) If not accompanied as above Exemption: Memorandum of any assoication not formed for profit and registered under section 26 of The Indian Companies Act, 1913 (VI of 1© 3) Mortgage Deed, not being an Agreement relating to deposit of Title deeds, Pawn or Pledge (No.56) Bond (No.15), Mortgage of a Crop (No.41), Respondentia Bond (No.56), or Security Bond (No.57) (a) When possession of the property or any part of the property comprised in such deed is given by the mortgagor or agree to be given (b) When possession is not given or agreed to be given as aforesaid. Explanation: A mortgagor who gives to the mortgagee a power of attorney to collect rents or a lease of the 1/2% (half per cent) of the amount of rent payable for the total period for which such House/flat or Building has lent on rent." Rs. 300/-(Three hundred) Rs. 500/-(Five hundred) Rs. 1000/-(One thousand) (a) Rs. 2/-(Two) for every one hundred rupees, '[on the amount secured] by such deed. , ?[(b) Rs. 1.00 (Rs. one rupee) for every 100/-(one hundred) rupees, based on the amount secured by such deed. | & fo Words "based on the consideration or market value equal to the amount secured* by subs. S.0. 1E/-480/2002-2065 dt. 18.12.2003. Subs. by ibid. ins by So. 1/M1-131-2005-1700 at 30.6.2008 136] { Schedule 1A ——., 41. 42. Chapter IV: INSTRUMENTS NOT DULY STAMPED 33. Examination and impounding of instruments.—(1) Every person having, by law or consent of parties, authority to receive evidence, and every person in charge of public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duly is produced or comes in the performance of his functions, shall if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether itis stamped with a stamp of the value and descriptidn required by the law in force in India, when such instruments was executed or first executed: Provided that — (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898); (b) in the case of a Judge of a High Court, the duty of the examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt— (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices. Comments and Case-law [An arbitration award is required to be made on stamped paper by Article 12. This defect in the arbitration award is curable under section 33 and it cannot be said that section 35 of the Stamp Act imposes a permanent bar on the powers of the court to make such an arbitration award a rule of the court, even if the defect 1. Ins.by Bihar Act 6 of 1937 (from 14,1938) 2. See now the Code of Criminal Procedure, 1973 (2 of 1974) | Section 40: Collector's power to stamp instrument impounded 40. Collector's power to stamp instrument impounded.—(1) When the Collector iimpounds, any instrument under section 33, or receives any instrument sent to him under section 38, sub-section (2), not being an Instrument chargeable with a duly not exceeding ten naye paise only or a bill of exchange or promissory note, he shall adopt the following procedure— (a) if he is of opinion that such instrument is duly stamped, or is not chargeable with duty, he shall cerlily by endorsement thereon that itis duly stamped, or that tt is Nol So Chargeable as the case may be; Chapter IV: INSTRUMENTS NOT DULY STAMPED 33. Examination and impounding of instruments.—(1) Every person having, by law or consent of parties, authority to receive evidence, and every person in charge of public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duly is produced or comes in the performance of his functions, shall if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether itis stamped with a stamp of the value and descriptidn required by the law in force in India, when such instruments was executed or first executed: Provided that — (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898); (b) in the case of a Judge of a High Court, the duty of the examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt— (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices. Comments and Case-law [An arbitration award is required to be made on stamped paper by Article 12. This defect in the arbitration award is curable under section 33 and it cannot be said that section 35 of the Stamp Act imposes a permanent bar on the powers of the court to make such an arbitration award a rule of the court, even if the defect 1. Ins.by Bihar Act 6 of 1937 (from 14,1938) 2. See now the Code of Criminal Procedure, 1973 (2 of 1974) | Section 40: Collector's power to stamp instrument impounded Secs. 41-42 ] Indian Stamp Act, 1899 [99 (b) if he is of opinion that such instrument is char i geable with duty and is not duly siainpee he shall require the payment of the proper duty or the aici required to make up the same, together with a penalty of five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees: Provided that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section. (2) Every certificate under clause (b) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein. _ (3) Where an instrument has been sent to the Collector under section 38, sub- section (2) the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer. Comments & case-law _ [Sections 27, 40, 47A and 64—penalty imposed by the Collector for under— valuing the property under registration—assailed on the ground that already a penal provision u/s 64 is provided under the Act—Section 64 of the Act relates to criminal intention of a person who is producing document to the authority for its registration— even if the provisions of Section 64 of the Act are made applicable, a person who under values a document, can not escape the provision of Section 40(1)(b) and Section 47A of the Act—if a person wants to defraud the State Government by not giving proper valuation of the property them he may not be allowed to say that he is liable to pay a fine of Rs. 5000/- only and should be made scot free—Sections 64 and 474 of the Act are not mutually destructive but are supplemental to each other. M/s Nasco Steel Pvt. Ltd. vs. State of Bihar, 2004(4) PLUR 470.] 41. Instruments unduly stamped by accident.—If any instrument chargeable with duty and not duly stamped, not being an instrument chargeable with a duty not exceeding ten naye paise only ora bill of exchange or promissory note, is produced by any person on his own motion before the Collector within one year from the date of its execution or first execution and such person brings to the notice of the Collector the fact that such instrument is not duly stamped and offers to pay to the Collector the amount of the proper duty, or the amount required to make up the same, and the Collector is satisfied that omission to duly stamp such instrument has been occasioned by accident, mistake or urgent necessity, he may, instead of proceeding under sections 33 and 40, receive such amount and proceed as next hereinafter prescribed.