Wednesday 18 June 2014

UNDER VALUATION


The word under valuation is most frequently used in transfer of property, which is linked to stamp duty and registration charges. It is necessary to understand, the constitutional provisions of stamp duty before embarking on under valuation. Articles 246,265,268,269(I) are relevant to stamp duty. The Article 246 refers to the powers of parliament and state legislature to make laws.The constitution has union list, state list, and concurrent list. The parliament has powers to make laws in case of union list and state  legislature  has powers to make laws in case of state list and both have powers to make laws in case of concurrent list.The article 265 makes it very clear that no tax shall be levied or collected except under authority of law. Stamp duties are listed in all three lists with clear demarcations.

Stamp duty registration charges are a source of major income to the states. The department of registration and stamp duty of Karnataka is ranked among the top five revenue earners to the state. The revenue so earned from different sources is utilized for development, administrative expenses of the state. Thus every state aims at increasing its revenue and also to plug any leakage.

Ceiling on Stamp Duty 

The stamp duty and registration charges are payable on advolerem basis, that is based on the value. There are no maximum stipulations. They increase with the amount of consideration of conveyance of property, higher the consideration, more the stamp duty and registration charges. These charges are to be met by the purchaser unless there is a contract to the contrary. Apart from purchase price, stamp duty, registration charges, the purchaser has to expend to get revenue records mutated his name,and for transfer of power and water connections to his name. All these expenses work out to about 15% of purchase price. To avoid such heavy expenditure, the parties to deal, disclose value of the property less than its actual market value, thus pay less stamp duty and registration charges. But the purchaser will pay the actual market value to the seller. This process is called under valuation. This modus operandi has two implications:

  1. Loss of revenue to the state.
  2. The circulation of unaccounted money.
Both have adverse effects on the National Economy. In order to avoid under valuation, The State Government has come out with legislation. In fact Karnataka Stamp Act 1957 has certain sections dealing with under valuation. The Section 45-A was inserted into the Karnataka Stamp Act 1957, during 1975 and 45-B was brought in during 1991.

Pending Registration
The Section 45-A deals with the procedure to be adopted for dealing with documents, where the properties are undervalued. The parties producing documents for registration have to file the market value of property calculated in prescribed form I. If registering officer has reasons to believe that the market value of the property in the document, which is produced for registration is not truly mentioned, he may arrive at the market   value of such property and inform the parties to pay the stamp duty and registration charges according to the market value arrived by him. He may proceed with the registration, If the party pays the stamp duty/registration as arrived by him.

If not he may  keep the process of registration pending  and refer the matter to the Deputy Commissioner along with a copy of the document for determination of the market value of property and proper stamp duty payable there on. For arriving at the market value, the registering officer will use the guidance value published by the committee constituted for estimation of market value under Section 45-B. the registering authority informs the market value as arrived by him in form 1-A.This gives options to the parties to contest the valuation done by the registering authority, or to agree or to withdraw the document from registration.

The deputy commissioner after hearing the objections of the parties during the course of enquiry shall determine the correct stamp duty payable.The parties have to pay the difference amount.

Suo-Moto Action

Many times the parties agree to pay the stamp duty based on the market value as determined by the registering officer and get the document registered.Inspite of this the parties receive notice to pay the increased stamp duty.The Deputy Commissioner has some special power called suo-moto powers, this means on his own. Here the deputy commissioner acts without any reference to him. The time limit is two years from the date of registration. Within two years he may examine any document, and has reasons to believe that the correct market value of the property is not set forth in the document, he may determine the correct market value; call the parties to pay the proper stamp duty.That is how the party’s gets notice even after registration process is completed.

Appeal to Divisional Commissioner
In case, the parties are not satisfied by the market value and the proper stamp duty, as determined by the deputy commissioner, they may appeal to the divisional commissioner, but has to deposit 50% of the difference amount of the stamp duty as determined by the deputy commissioner. In the appeal to the divisional commissioner if the stamp duty already paid by the parties is found to be correct, excess amount deposited (50%) will be refunded.If the determined market value is found to be higher and the stamp duty paid is less, the parties have to pay the difference amount with 12% interest from the date of execution of document.The Karnataka Stamp (prevention of under valuation of Instruments)Rules 1977 deals with the procedure to determine the market value of the property, and the procedure to be adopted for conducting enquiries.

The Karnataka Stamp (prevention of under valuation of instruments) 1977 provides guidelines to deputy commissioner, divisional commissioner to arrive at the correct market value. The guidance values are general in nature and are for guidance only.The deputy commissioner/divisional commissioner have to determine the market value of particular property.They may call for information or records from any public office, officer, authority under government or local authority, examine and record statements from public, officer, authority under government or local authority.They may inspect the property in question after due notice to the party.Rules provide definite parameters to arrive at the market value, depending upon the nature of property, land house sites, buildings, and other properties.

In case of lands, the nature of land, such as dry, garden, wet, nature of soil, revenue assessment, other factors which influence the value of the property, value of the adjacent lands, annual yield for five consecutive years and nature of crops raised on the land are considered. In case of house sites, general value of house sites in the area,, proximity  to the railway, bus  route , road market, shops,amenities available,developmental and industrial improvements in the vicinity, property tax  valuation, any other  features influencing the value of site, and special features of the case as represented by the parties are guiding factors. In case of buildings, area of the land, plinth area, built up area, age of the building,materials used, locality, amenities provided, depreciation, property tax, how the building is used, rents received are examined. The appeal should contain, original or certified copy of the order against which appeal is made, original or certified copy of the document in question and memo of grounds of appeal.

The parties may after exhausting the appeal to the divisional commission, may prefer appeal in civil court.

Guidance Value 
The Government constitutes committees to prescribe certain guidance values for the properties located in different areas. These committees are called committees for estimation of property. The values published by the committee are guidance values for registering offices to determine the market values. They are the average values also. If the value of the property purchased is lower than the guidance value. The stamp duty and registration charges are payable on the basis of guidance value. If the market value of the property is more than the guidance value, the stamp duty is payable on market value.


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