TMI Blog2013 (3) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... p duty and additional registration charges. - W.P. Nos. 4434, 4435, 13652 & 13653 of 2009 - - - Dated:- 1-3-2013 - MR. VINOD K.SHARMA J. For Petitioners: Mr. A. Jenasenan For Respondents: Mr. R. Ravichandran Addl. Govt. Pleader COMMON ORDER This judgment shall dispose of W.P.Nos.4434, 4435, 13652 and 13653 of 2009, as common question of law and facts are involved in all these writ petitions. However, for the sake of brevity, the facts are being taken from W.P.No.4434 of 2009. 2. Sri Velayuthaswamy Spinning Mills Pvt. Ltd., a company registered under the Companies Act, has approached this Court with prayer for issuance of a writ in the nature of Certiorari to quash the order No.367/E3/2009 dated 23.1.2009, declining the request of petitioner for refund of excess stamp duty and registration charges paid by the petitioner under protest. 3. The petitioner company identified four windmills situated in Sinjuvadi and Koolanaickenpatti Villages, Pollachi Taluk, owned by M/s.Vishal Exports Overseas Limited. The petitioner accordingly negotiated with the aforesaid company for purchase of their windmills as also the land in which the mills were erected. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, was wholly irregular, as the petitioner had already become the owner of windmills prior to 13.08.2008, the date of purchase of land. 11. The petitioner accordingly preferred appeal to the 2nd respondent, pointing out that collection of stamp duty on the value of windmills, including additional duty demanded and collected was wholly without jurisdiction, and requested the first respondent to direct the refund of the stamp duty paid on the value of the windmills. It was pointed out that the sale deed related only to the immovable property, i.e., the land, therefore, the stamp duty was to be paid only for the value of the land and not windmills, being movable property. 12. The request of petitioner was rejected by respondent no.1. Though the petitioner has termed the request as appeal, in fact it was an application for refund of excess stamp duty and registration charges under Section 45 of the Indian Stamp Act. 13. The impugned orders have been challenged, on the ground that charging of stamp duty and registration charges on the value of windmills was totally erroneous, as the petitioner had become the owner of windmills on 31.07.2008. Therefore, sale of windmills could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores and Forty Lakhs only) as against the value of ₹ 4,00,00,000/- (Rupees Four Crores only) declared by the petitioner and the Vendor in the sale deed. The stamp duty and registration fees aggregating to ₹ 12,60,000/- (Rupees Twelve Lakhs and Sixty Thousand only) was paid by the petitioner for the difference in value of the machineries on 19.08.2008. 20. Subsequently, the petitioner has preferred a petition dated 25.12.2008 to the 1st respondent requesting him to refund the stamp duty and registration fees paid on the value of the Windmill and other machineries since they were movable properties. The 1st Respondent rejected the claim of the petitioner in the order dated 23.01.2009 made in No.367/C3/2009. 21. The stand of the respondents is that the windmills were embedded in the earth, when the rights, interest, title etc were transferred to the petitioner, therefore the windmill was to be construed as immovable property and not movable property as defined under Section 2(6) of the Registration Act, 1908. 22. It is further stand of respondents, that in the schedule of the property besides description of land, the details of windmills are also given, which sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls were installed thereon could not be treated to be part of sale of immovable property, as the reading of sale deed shows, that it was only the land, which was sold for sale consideration of ₹ 30,38,000/- (Rupees Thirty Lakhs and Thirty Eight Thousand only). 29. It was also vehemently contended, that under Section 45 of the Indian Stamp Act, it is the duty of respondent no.1 to refund the excess amount, but respondent no.1 has failed to exercise the statutory duty by refusing the refund of money, that too without following principle of natural justice. 30. Learned Additional Government Pleader on the other hand vehemently contended, that no case is made out for interference by this Court, as the respondents were bound to collect stamp duty and registration charges, by taking into consideration the document as drafted. The contention of learned Additional Government Pleader was that in this case, the reading of sale deed shows, that parties agreed to sell the schedule property attached to the sale deed, which included windmills, therefore, windmills being part of sale and having been sold under the sale deed, the stamp duty was rightly claimed and paid by petitioner. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April, 1970 was the only instrument to which the Board should have riveted its attention. It was not open to the Board to question the recitals in the release deed in the absence of any materials to the contrary. The same remark must apply to the Board's observation that the assignment by the Government of the adjacent property in favour of the respondent did not show that it was obtained for the benefit of the respondent and his wife jointly. We do not also subscribe to the view that the respondent's wife was merely in the position of a lender of moneys with reference to a portion of the consideration that went in for purchase of the property. We hold that the respondent's wife had acquired a joint interest along with him in the property, and the appropriate method by which the respondent could renounce his claim over the interest of his wife was by execution in her favour of a release, as had been done under the document, dated 29th April, 1970. 32. On consideration, I find that the stand of respondents cannot be accepted. The reading of sale deed shows, that the land was agreed to be sold for total sale consideration of ₹ 30,38,000/- (Rupees Thirty Lakhs an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Division Bench was considering whether pumping installation was not immovable property. The Division Bench, after distinguishing the Full Bench judgment above mentioned, observed as follows: We do not think that the Collector was correct in his view that the pumping installation could not have been acquired under the Act as it was not immovable property. Immovable property, both under the Transfer of Property Act and the General Clause Act, would include anything imbedded in the earth or attached to what is so imbedded. The fact it is capable of being removed does not render it any the less immovable property when it is fastened to earth in the manner in which high-power motors and a pumping installation as a whole are imbedded. It may, however, be that the competent authority acting under the provisions of the Requisitioning and Acquisition of Immovable Property Act, proceeded to acquire only the land, buildings, trees, wells etc., for, both the agreement with regard to the compensation and the award passed by the enquiring officer only covered these items. That does not mean that there could not have been a separate agreement with regard to the purchase of the pumping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh there may be an attachment by the earth, as contemplated by the first two aspects in the description of attached, still if the attachment is a necessary requisite and that is the manner by which the immovable property is or can be enjoyed or worked, it may be open to question whether because of its fixture, though permanently, in the qualified sense, it can ipso facto or ipso jure he regarded as immovable property. Board of Revenue Chepauk, Madras v. Venkataswami (1955-2M.L.J.215=AIR 1955 Mad 620 = 68 L.W.527 (F.B.) illustrates this. In that case which was under the Stamp Act, a lease of properties relating to a touring cinema (tent and machines), though collapsible and capable of being removed, but permanently fastened to the earth when in use, was held to be not chargeable to stamp duty under S.30(a)(4) of Schedule 1A of that Act, as in the nature of things such properties could not be immovable property. The learned Chief Justice, who spoke for the court, further observed that the poles of the tent and machinery were imbedded in the earth only temporarily and not permanently. It may be seen that a touring cinema, which is located in a place, is not shifted from place to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earth and the attachment lasts only as long as the engine is used. When it is not used, it can be detached and shifted to some other place. The attachment, in such a case, does not make the engine part of the land and as immovable property. Mohammed Ibrahim v. N.C.F.Trading Company Coconado (AIR 1944 Mad 492 = 27 L.W.438) was decided by a Division Bench of this Court under the provisions of the Registration Act, that was a case of machinery of a mill fixed to a cement platform and attached to ironpillars fixed in the ground. It was held that the movable property so attached should be regarded as immovable property. It seems to us that this case turned on the special facts and the nature of the fixture, including the intention derived from the physical features of the fixture, that the mill was to be a permanent attachment to the earth. A potter oil engine, as in this case, stands on a different footing and from the very nature of this type of machinery. We do not think that any useful purpose would be served by a reference to English Cases, because they have proceeded on basis of fixtures to realities, under the English law. Different considerations have been applied by Engli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th in movable or immovable property. The Division Bench observed as follows: Mulla in his book on Transfer of Property Act, 1966 (Sixth Edition) quoted with approval a decision of the Calcutta High Court in Janchand v.Kishore (AIR 1960 Calcutta 301) and stated: In a recent Calcutta case, it has been held, it is submitted, correctly, that the test is whether the annexation is with the object of the permanent beneficial enjoyment of the land or building: so machinery for metal-shaping and electroplating which was attached by bolts to special concrete bases and could not be easily moved, was held not to be a part of the structure housing it or the soil beneath it. The Court held that the machinery was not attached for the mere beneficial enjoyment of either the soil or the concrete; it was actually a case of the structure being built around the machinery to protect it . Thus, therefore, the principles in the Calcutta decision, cited above, squarely applies to the facts of this case. The machineries are attached by bolts to special concrete bases or studs, or platforms and no one interested in saying so, would say that they are so attached to earth, so as to make it app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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