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TMI Blog2018 (4) TMI 1951X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2. The respondent in the respective appeals (hereinafter referred to as "the respondents") are sister concerns based at Tirupur. The respondents purchased 4 Windmills erected by M/s. Vishal Export Overseas in various villages in Udumalpet Taluk, Coimbatore District. The respondents purchased the windmills along with the immovable property. The respondents made payment to the windmills and obtained receipt. The respondents prepared Sale Deeds relating to the respective immovable property indicating the land value. However, in the Schedule to the documents, windmills were also shown as the transferred property. Similarly, in the signed statement given under the Stamp Act, the respondents have indicated the value of windmills. The Sub-Registrar therefore directed the respondents to pay the Stamp Duty taking into account the total value of the transfer. The respondents paid the Stamp Duty and got the documents registered. Thereafter, the respondents submitted petitions for refund of the excess amount on the ground that windmill is only a movable property and therefore, there is no liability to pay Stamp duty for the value shown for the windmills. The petitions were rejected. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for registration. In the Sale Deed, the windmill was shown in the Schedule along with the immovable property. Similarly, in the valuation statement, the cost of windmill was included in the total value of the transaction. The respondents paid the Stamp Duty without protest. The documents were registered. The respondents filed petitions for refund before the Director General of Registration on the ground that windmill is only a movable property and as such, the Sub- Registrar illegally collected the Stamp Duty notwithstanding the protest. The petitions were rejected. 6. The Sale Deed relating to the immovable property contains a recital that it was sold with windmill machineries with right for transportation/movement of cranes and heavy machineries, vehicles etc., The value of the windmill was shown in the statement by the respondents. 7. It is the contention of the respondents that windmill is a movable property and therefore, there is no liability to pay Stamp Duty. The Statutory Provisions 8. Section 3 of the Transfer of Property Act contains the meaning for "attached to the earth". The provision reads thus: "attached to the earth" means- (a) rooted in the earth, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssect and analyse the definition given by the Registration Act for the purpose of giving it a wider scope than what is expressed in the definition contained in the Transfer of Property Act. The first part of the definition in S.2(9), Registration Act implies that what is really movable property may become immovable property by being directly attached to the earth. The second part indicates that though the attachment is not direct, still if the movable property is fastened to something which is directly attached to the earth, it will be immovable property for the purpose of the Registration Act. The Transfer of Property Act contains a definition of "things attached to the earth", but not of "things permanently fastened to anything which is attached to the earth". Clause (c) of the latter definition which refers to a mediate and not a direct attachment is substantially what is referred to in the second part of the definition in the Registration Act. Accordingly, for the purpose of determining whether a movable attached to immovable property is itself immovable property or not the inquiry should be not whether the attachment is direct or indirect but what is the nature of the attachme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owning the immovable property but causing such annexation of movable property, such as machinery etc., to be made to the premises as such, which is to the effect that such annexed property is movable property, because the tenant or a person having only a leasehold interest in the immovable property is often free to remove his movable property, such as, machinery etc. But, in the ultimate analysis, if the intention of either of the owner or the tenant in making such annexation of movable property to immovable property is to permanently fix it along with the earth or the said immovable property, then it becomes part and parcel of it. Cases may arise where an article or machinery may be very firmly fixed to the land, but, yet the surrounding circumstances may be such as to show that it was never intended to be a part of the land. Thus, it reduces itself to a question of fact and a matter of proof. The onus is on the person, who alleges that the particular article was always intended to retain the character of movable property. He has to establish it. It ultimately depends upon the intention of the parties. Such intention on the part of either the owner or the tenant, to treat such ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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