TMI Blog1999 (12) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... as set aside and slightly modified the stamp duty levied by the Collector. Consequent to the order of the Revisional Authority, the appellant herein became liable to pay stamp duty on the said Deed of Conveyance amount to ₹ 36,68,08.887.50. This order of the Revisional Authority came to be challenged before the High Court in Civil Misc.Writ Petition No.9170/95 which came to be dismissed and as against this order of the High Court of Judicature at Allahabad dated 7.7.1997, the appellant has preferred the above civil appeal. Briefly stated, the facts leading to the controversy in question are as follows : ICI India Ltd., a company registered under the Companies Act, 1956 executed an agreement of sale dated 11.11.1993 wherein it agreed to transfer on an as is where is basis and as a going concern its fertilizer business of manufacturing, marketing, distribution and sale of urea fertilizer in favour of Chand Chhap Fertilizer and Chemicals Ltd. (hereinafter referred to as the CCFCL) also a company incorporated under the Companies Act, 1956 which company has since been renamed as M/s. Duncans Industries Limited, Fertilizer Division, Kanpur Nagar (the appellant herein) for a total s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Conveyance Deed for registration. The Sub- Registrar made a reference to the Collector under Section 47-A(2) of the Stamp Act, 1899 (hereinafter referred to as the Act) stating that in the document under reference all the details required under Section 27 of the Act had not been given by the parties, hence valuation and examination is essential and requested the Collector to determine the value as required under the Act and the Rules and to take action to realise the deficit stamp duty and penalty. Consequent upon this reference made by the Sub- Registrar, the Collector after necessary inquiry as per his order dated 20.2.1995 referred to above, levied stamp duty and penalty to which reference has already been made. Being aggrieved by the said order of the Collector, the appellant preferred a revision petition to the Chief Controlling Revenue Authority who, as already stated, by his order dated 9.6.1994 set aside the penalty and modified the duty payable to ₹ 36,68,08,887.50 which order came to be challenged before the High Court unsuccessfully. Before the High Court the appellant had challenged the authority of the Sub-Registrar to make a reference to the Collector on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fertilizer that is fertilizer business itself with a stipulation that the first stream, second stream and the third stream urea manufacturing plants as well as the Ammonia manufacturing plants would also be transferred as a part of the transfer of fertilizer business of the ICI as a going concern. He also contended that a reading of the document at Para 1(e)(i) which defines fertilizer business clearly shows that the intention of the vendor was to transfer all properties that comprised the fertiliser business. He also drew our attention to the observations of the High Court which had in specific terms noted that the learned counsel representing the appellant before it, had not seriously challenged the valuation made by the authorities, hence he contended that the challenge made to the valuation by the appellant before us should not be coutenanced. We have heard learned counsel for the parties and the question that arises for our consideration is : whether by the conveyance deed dated 9.6.1994, the plant and machinery were also transferred; and if so, whether the High Court was right in accepting the valuation as made by the authorities for the purpose of stamp duty payable ? Consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention that these machines should be treated as movables cannot be accepted. Nor can it be said that the plant and machinery could have been transferred by delivery of possession on any date prior to the date of conveyance of the title to the land. Mr. Verma, in support of his contention that the machineries in question are not immovable properties, relied on a judgment of this Court in Sirpur Paper Mills Ltd. v. Collector of Central Excise, Hyderabad (1998 1 SCC 400). In the said case, this Court while considering the leviability of excise duty on paper-making machines, based on the facts of that case, came to the conclusion that the machineries involved in that case did not constitute immovable property. As stated above, whether a machinery embedded in the earth can be treated as movable or immovable property depends upon the facts and circumstances of each case. The Court considering the said question will have to take into consideration the intention of the parties which embedded the machinery and also the intention of the parties who intend alienating those machinery. In the case cited by Mr. Verma, this Court in para 4 of the judgment had observed thus : In view of this findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer the possession of the plant and machinery separately and is contending now that this handing over possession of the machinery is de hors the conveyance deed. We are not convinced with this argument. Apart from the recitals in the agreement of sale, it is clear from the recitals in the conveyance deed itself that what is conveyed under the deed dated 9.6.1994 is not only the land but the entire fertilizer business including plant and machinery. A perusal of Clauses 10, 11 and 13 of the said deed shows that it is the fertilizer factory which the vendor had agreed to transfer along with its business as a going concern and to complete the same the conveyance deed in question was being executed. There is implicit reference to the sale of fertilizer factory as a going concern in the conveyance deed itself. That apart, the inclusion of Schedule III to the conveyance deed wherein a Plan delineating the various machineries comprising of the fertilizer factory is appended shows that it is the land with standing fertilizer factory which is being conveyed under the deed, though an attempt to camouflage this part of the property sold is made in the recitals, in our opinion, the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r finding out what actually is the property that is conveyed under the deed under consideration. It is again based on facts of that case that this Court came to the conclusion therein that the so called terms and conditions which were found in an earlier agreement were not intended to be incorporated in the subsequent document. This is clear from the following observations of this Court appearing in Para 10 of the said judgment : From the language used in the Assignment Deed, it is not possible to come to the conclusion that the terms and conditions of the earlier transaction have been made a part of that Deed. Further barring one particular agreement, other agreements were not before the Court. Therefore, it is not possible to know what the terms and conditions of those agreements were. Before the terms and conditions of an agreement can be said to have been incorporated into another document, the same must clearly show that the parties thereto intended to incorporate them. No such intention is available in this case. Hence we are of the opinion that this judgment also does not help the appellant in his attempt to convince us that we should not take into consideration the recit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyed under the Deed. In this process, the Collector has every authority in law to take assistance from such source as is available, even if it amounts to constituting or reconstituting more than one Committee. That apart, the appellant has not been able to establish any prejudice that is caused to it by reconstitution of the Expert/Enquiry Committee. We have perused that part of the report of the Collector in which he has discussed in extenso the various materials that were available before the Committee and also the report of the valuers appointed for the purpose of finding out the value of the plant and machinery. These valuers are technical persons who have while valuing the plant and machinery taken into consideration all aspects of valuation including the life of the plant and machinery. The valuations made both by the Enquiry Committee as well as the valuers are mostly based on the documents produced by the appellant itself. Hence, we cannot accept the argument that the valuation accepted by the Collector and confirmed by the revisional authority is either not based on any material or a finding arrived at arbitrarily. Once we are convinced that the method adopted by the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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