TMI Blog2010 (7) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle could be sold in the market and could be removed for installation at other place. Therefore, the question No. (ii) does not survive at all. Appeal dismissed. - - - - - Dated:- 29-7-2010 - NIAL YADAV RM AND SUDHANDHU DHULIA , JJ. The judgment of the court was delivered by Mrs. NIRMAL YADAV J. In all the abovementioned trade tax revisions the common question involved is: (i) Whether the assessing authority was justified in imposing the tax on the air-conditioning and cold storage plant for the assessment years 1995-96, 1996-97, 1997-98 and 1998-99 under section 3F of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, the Act ) by holding that air-conditioning and cold storage plant is a movable property. (ii) Whether the learned Tax Tribunal was justified in equating the air-conditioning plant and cold storage plant of the hotel with the water pump by holding that plant is fixed only for the purpose of operational efficiency. All the trade tax revisions have been heard together and have been finally decided by this common judgment. However, for the sake of convenience and for the purpose of referring to the documents and pleadings, Trade Tax Revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that air-conditioning and cold storage plant is a movable property, therefore, the assessee is liable to be taxed on the basis of the lease rent under section 3F of the Act. Still aggrieved by the order of the learned Tribunal, the revisionist has filed the present revisions. Heard Mr. S.K. Posti, learned counsel for the revisionist, Mr. Sudhir Kumar, learned brief holder for the State and perused the material available on record. The learned counsel for the revisionist argued that the hotel of the revisionist is of international level and in order to make their hotel centrally air-conditioned, air-conditioning plant consisting of compressor and boilers are permanently fixed and embedded in the earth. The controlled air from the plant passes to different parts of the hotel through ducts casted in the hotel building. Therefore, it cannot be at any cost stated that airconditioning plant is a movable property. Cold storage plant is also fixed at one place of hotel and it cannot be detached or shifted from one place to another. It is further argued that learned Tribunal erred in equating the airconditioning plant with a water pump, which is attached to earth only for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditioning plant is a movable property. The lessor was apparently having the intention that the air-conditioning should be one of the fixed assets while leasing out the hotel building. He referred to the paragraph 3 of the MOU which reads as under: AND WHEREAS JIL has also provided in the hotel necessary moveable assets comprising sanitary fittings, electrical fittings, plant and machinery, kitchen equipment and air-conditioning plant, cold storage, lifts, furniture and fixtures and other miscellaneous items at its own cost except few moveable assets which have been provided by JHL at its own cost and for which JHL is entitled to receive a hire charge of Rs. 1.50 per month from JIL as per the mutual agreement between JIL and JHL described in Record Note of discussions held on January 21, 1995. He further referred to clause 4 of the MOU of assets which provides as under: The moveable assets of the hotel belonging to JIL shall be handed over to JHL on three years lease basis for which a detailed agreement shall be negotiated and executed separately by September 30, 1995. In view of clause 4 of the MOU a separate agreement, i.e., lease agreement No. JIL/02/95 was execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditioning plant and cold storage plant are moveable goods. The plant has been fixed to the earth only for operational efficiency and to avoid the vibration or wobbling of the plant. The Tribunal has further given the finding that the above-mentioned plant can be removed from the place where it is fixed and can be taken to the other place for installation and can also be sold. The learned counsel for the respondent relied upon a judgment, which has also been relied on by the Tribunal reported as Sirpur Paper Mills v. Collector of Central Excise, Hyderabad reported in AIR 1998 SC 1489. The apex court in the above case held as under: 5. Apart from this finding of fact made by the Tribunal, the point advanced on behalf of the appellant, that whatever is embedded in earth must be treated as immovable property is basically not sound. For example, a factory owner or a house-holder may purchase a water pump and fix it on a cement base for operational efficiency and also for security. That will not make the water pump an item of immovable property. Some of the components of water pump may even be assembled on site. That too will not make any difference to the principle. The te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also noticed by the court that the volume of the machine and the weight was enormous. In such circumstances, those equipments were not considered as movable goods within the meaning of the Excise Act and excisable to excise duty. It was also observed that such equipments are not usually shifted to one place to another nor it was practicable to do so frequently. The counsel, appearing in the said case, had submitted that once these machines were erected and assembled, they continued to operate from where they were positioned till such time they were worn out or discarded. The facts of the case in hand are quite similar to the case of Sirpur Paper Mills AIR 1998 SC 1489 cited by learned counsel for the respondent. From the finding of facts given by the Tribunal, it is clear that the air-conditioning plant can be removed from one place and shifted to the other place. Thus it cannot be treated as a part of the immovable property of the hotel building. Even from the MOU and agreement executed by the revisionist themselves their intention is indicated that the air-conditioning plant is one of the movable assets, which was leased out by the revisionist by a separate agreement ..... 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