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TMI Blog2014 (3) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... arket value of entire property under transaction, as Rs. 118 lacs, whereupon the stamp duty chargeable comes to Rs. 17,11,000/-, hence deficiency of Rs. 13,74,600/- has been determined and demanded from the petitioner. Penalty of Rs. 13,74,500/- has also been imposed upon petitioner. 3. Against aforesaid order, the petitioner preferred revision which has been dismissed by Chief Controlling Revenue Authority, U.P., Allahabad, vide order dated 06.12.2001. 4. Learned counsel for the petitioner submitted that the value of plant and machinery ought not to have been included in the sale consideration and the Revenue Authorities have committed a patent error of law in including the value of plant and machinery and other item as the same were liable to be treated as "movable property". It is however not in dispute that the entire industrial unit was purchased alongwith its land, building, plant, machinery etc. for a total consideration of Rs. 118 lacs but the stamp duty was paid on partial sale consideration of Rs. 23,20,000/-, treating it to be the value of land and building only. 5. The only question up for consideration is, "whether plant and machinery, in the present case, have righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner argued that "plant and machinery" even if attached to earth, but since it is/was removable, therefore, it is/was a moveable property, and not chargeable for stamp duty for the purpose of the document in question. 10. In my view the orders impugned in this writ petition are perfectly valid and just, except to the extent of penalty, which has been imposed upon petitioner though no such power vested in the authorities at that time. 11. Now coming to first part of the matter, whether sale consideration of plant and machinery etc. is chargeable alongwith building and land, I find that it is not disputed that plant and machinery in the case in hand is the one which is affixed to earth or to the things embedded to earth. Now the only question which is to be considered is, whether these items can be termed as "moveable property" or "immoveable property". 12. The term "immoveable property" has been defined in General Clauses Act (Central), 1897 and reads as under: "'immovable property' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth." 13. Under Section 3 of the Transfer of Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and taking into consideration the nature of machineries involved clearly shows that the machineries which have been embedded in the earth to constitute a fertiliser plant in the instant case, are definitely embedded permanently with a view to utilise the same as a fertiliser plant. The description of the machines as seen in the Schedule attached to the deed of conveyance also shows without any doubt that they were set up permanently in the land in question with a view to operate a fertilizer plant and the same was not embedded to dismantle and remove the same for the purpose of sale as machinery at any point of time. The facts as could be found also show that the purpose for which these machines were embedded was to use the plant as a factory for the manufacture of fertiliser at various stages of its production. Hence, the contention 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 the date of conveyance of the title to the land." 16. The decision in Sirpur Paper Mills Vs. Collector of Central Excise Hyderabad, AIR 1998 SC 1489 was distingui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on lease. A lease of entire establishment was necessary for beneficial enjoyment of rights under the lease. If from the lease, plant and machinery is excluded, the land could not have been used for any purposes designed to be fulfilled by lease. The machinery and plant embedded to earth to give it a character of immovable property for beneficial use of land facilitated the lease otherwise, the lessee would not take the premises on lease and land could only be used if the plant and machinery was attached to earth. Thus, according to the definition of "plant and machinery" as contained in General Clauses Act, makes it a immovable property." 18. In the present case it is not disputed that besides plants and machinery, entire land and building was sold and there was no provision/agreement that plants and machinery shall be severed or removed from earth. In fact, the industrial unit has been leased out for the purpose of running. Removal of plants and machinery would not have allowed the factory to run. There is no agreement between parties that plants and machinery shall be severed or removed from earth. 19. Even according to definition of 'goods' under Sale of Goods Act, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t presented for registration is not true market value of the entire value and there is a deficiency of stamp duty. Such a provision has been brought in statute book by amendment made in U.P. vide Act No. 38 of 2001. This amendment is not retrospective. The law before aforesaid amendment was clear that no penalty could have been imposed and, therefore, imposition of penalty in the present case is without jurisdiction. A Full Bench decision of this Court in Girish Kumar Srivastava Vs. State of U.P and others, 1998 (1) All.C.J. 199, has held that in the absence of any provision authorizing the Collector to impose penalty, the same cannot be imposed. 23. The Full Bench, referred to above, approved earlier Division Bench judgment of this Court in Kaka Singh Vs. Additional Collector and District Magistrate, (Finance and Revenue) Bulandshahr, AIR 1986 All 107. This has been reiterated in a recent Full Bench judgment in Ramesh Chandra Srivastava vs. State of U.P., AIR 2007 Alld. 39. 24. In view thereof, the writ petition is partly allowed. The impugned orders dated 30.01.1996 and 06.12.2001, in so far as penalty of Rs. 13,74,500/- has been imposed upon petitioner, being wholly without ju ..... 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