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2018 (4) TMI 1951 - HC - Indian LawsLevy of Stamp Duty - Immovable Property - wind mill sold as a running out along with the immovable property, where the Wind Electric Generators were erected and shown as an item of property in the registered sale deed - to be assessed to stamp duty, treating it as a Conveyance under Entry 23 of Schedule I of the Indian Stamp Act 1899 or not? - HELD THAT:- The question as to whether a movable property was permanently attached or annexed to the immovable property is essentially a question of fact. It is so because there is no definition given to the term movable property in the Transfer of Property Act. There is no fixed guideline to arrive at a conclusion whether a particular movable property if attached to the immovable property would become an immovable property - In case, the owner of the land for the beneficial enjoyment of the land erected a windmill and constructs a building to house the plant, it would certainly be an immovable property. The establishment of a windmill requires fixing the windmill machinery to the earth. The erection of windmill is through a process. Erection is not a temporary phenomena. There should be a small structure for the windmill station. The possibility of removing the windmill and the related machinery imbedded in the earth, later would be of no consequence. Such possible act is not a relevant factor to decide the issue. In MOHAMMED IBRAHIM VERSUS NORTHERN CIRCARS FIBRE TRADING CO. [1944 (4) TMI 9 - MADRAS HIGH COURT], a Division Bench of this Court held that if a thing is imbedded in the earth or attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached, then, it is part of the immovable property. In South Indian Bank Ltd., by its THE SOUTH INDIAN BANK LTD., BY ITS GENERAL MANAGER, M.G.P. NAMBIAR VERSUS V. KRISHNA CHETTIAR AND BROTHER BY ITS PARTNER V.K. PALANIAPPAN AND ORS. [1974 (12) TMI 80 - HIGH COURT OF MADRAS] the Division Bench indicated that the onus is on the person, who alleges that though the movable property is annexed to land, it was never intended to be the part of land. The recitals in the Sale Deeds clearly indicates that windmill machineries were erected by attaching it to the earth, and it was part of the immovable property. The respondents included the windmills as an item of transferred asset along with the immovable property. The respondents wanted a statutory recognition to the sale of windmills without paying required Stamp Duty. The windmill has no existence without the immovable property. The machineries for the windmill should be attached to the earth. It should be an attachment of a permanent nature as otherwise the machineries would be washed out by the wind - The sale in question was a composite one relating to an immovable property. The fact that the respondents valued the windmill and its machineries separately and paid the value also separately would not make any difference. It was a sale of immovable property which includes the land and windmill. The Sub-Registrar therefore correctly levied the stamp duty. The order passed by the learned single Judge is legally and factually unsustainable. The common order is therefore set aside. The writ petitions are dismissed.
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