TaxTMI 
TaxTMI 
2013 (3) TMI 681
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.... 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 windmills were agreed to be sold for the sale consideration of Rs. 1,00,00,000/- (Rupees One Crore only) per windmill. This sale stood concluded on receipt of sale consideration and giving of possession of windmill, by taking it to be movable property. 5. It was agreed, that after purchase of the windmill, the petitioner could also purchase the land on which the windmills were installed for sale consideration of Rs. 30,38,000/- (Rupees Thirty Lakhs and Thirty Eight Thousand only). 6. In pursuance to the agreement entered into between the parties, the petitioner paid the sale consideration for the windmill and sale invoices for the windmills along with receipts for the consideration was passed on to the petitioner on 01.08.2008. M/s.Vishal Exports Overseas Limited issued a letter dated 01.08.2008, confirming the sale of four windmills in favour of petitioner and also acknowledged the delivery of windmills with the full description of the movables sold to the petition....
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....tamp 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 not be treated as part of sale deed. 14. That the action of respondent no.1 in rejecting the request of petitioner for refund of stamp duty, though termed as appeal, to be bad in law, as no opportunity of hearing was given to the petitioner before passing the impugned orders rejecting the request of petitioners for refund of additional stamp duty and registration charges. 15. That the impugned orders are also challenged, being outcome of non application of mind, as the respondents failed to follow the circular dated 19.11.2008, issued by the 1st respondent, laying down that windmill was movable property, which could be sold by receiving consideration and by delivery. 16. It is the case of petitioner, that there was proof on record, i.e., letter issued by the State Bank of India, showing completion of sale much prior to registration of sale of land, which proved, that the ownership of windmills had passed on to the petitioner before presentation of sale deed for registration. 17. It is thus submi....
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....is further stand of respondents, that in the schedule of the property besides description of land, the details of windmills are also given, which show that the intention of parties was that sale of land was along with windmills embedded thereon and the stand taken by petitioners now is an after thought. 23. The contention of learned counsel for the petitioners, that sale of windmills was completed prior to registration of sale deed, is denied on the ground, that in that event, there was no necessity to mention about windmills in the schedule to the sale deed. 24. The contention of petitioner, that no opportunity of hearing was given to petitioner, was denied, on the ground that sale deed in question was self explanatory, showing transfer of windmills under the sale deed, therefore, there was no necessity to give opportunity of hearing to the petitioner. 25. The grounds raised by the petitioners were denied and reliance was also placed on the Full Bench judgment of this Court in Chief Controlling Revenue Authority vs. Dr.Manjunatha Rao, (1976) 2 MLJ 279, to contend, that revenue authority cannot ignore the terms of document placed before them for adjudication. Reliance was also p....
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....ndmills being part of sale and having been sold under the sale deed, the stamp duty was rightly claimed and paid by petitioner. The application of petitioners were therefore rightly rejected. 31. In support of this contention, learned Additional Government Pleader placed reliance on the Full Bench judgment of this Court in The Chief Controlling Revenue Authority, Board of Revenue, Madras vs. Dr.K.Manjunatha (supra), wherein it was held as under: "14. For holding that the document in question is a conveyance the Board of Revenue did not rely so much on the recitals which that document contained. The Board embarked, instead, on an examination of the original sale deed, dated 14th March, 1947 under which the respondent purchased the whole extent of 27 grounds in Mount Road. According to the Board, this document, dated 14th March, 1947 did not say that the consideration for the purchase of the property was, in part, provided by the wife. The Board expected that such a recital ought to have been put in the purchase document, if the intention had been that the purchase was to be for the joint benefit of both husband and wife. From this the Board purported to draw the inference that the....
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....ed shows, that the land was agreed to be sold for total sale consideration of Rs. 30,38,000/- (Rupees Thirty Lakhs and Thirty Eight Thousand only) and mention of windmills was merely description of the land sold and the windmills could not be said to have been sold under the sale deed, specially in view of proved facts on record, that sale with regard to windmills was completed on 01.08.2008. Whereas the sale deed for land was presented for registration only on 13.08.2008 and was actually registered on 19.08.2008. The stand of petitioners could not be an after thought, as the sale consideration for purchase of windmills was paid to State Bank of India, with whom the windmills were hypothecated by taking it to be movable property. 33. Furthermore, windmills were to be treated as movable property and not immovable property in view of circular dated 19.11.2008 of the 1st respondent, clearly stipulating that windmills have to be treated as movable property. This circular was binding on respondent no.1. 34. There was no justification with the respondent no.1 to refuse refund of stamp duty by ignoring its own circular. 35. The view, that no stamp duty would be payable on the windmills....
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....t mean that there could not have been a separate agreement with regard to the purchase of the pumping installation. The Division Bench further observed as follows: "A pumping installation necessarily involves a more permanent fixture to the earth, than a touring cinema does. 10. In A.I.R.1969 Madras 346 = 81 L.W.19 (S.N.) (supra), another Division Bench had occasion to consider whether the oil engine attached to the earth would be movable or immovable property. The Division Bench, after considering various earlier decisions including the Full Bench judgment, observed as follows: "The question whether when a chattel is attached to the earth or a building, it is immovable property, is a mixed question of law and fact, and has to be decided in the light of particular facts in each case. Obvious cases may not call for tests. Where doubt arises, certain tests have been formulated in particular contexts, which, if literally applied, may not yield always a proper and correct result. While general tests pointed out by judicial decisions in the light of specific facts, may be borne in mind, eventually the decision on the question should depend upon how the Court, looking at the facts as....
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....en that a touring cinema, which is located in a place, is not shifted from place to place but continues to function for fairly a long period. Permanence of the fixture, in the context is, therefore, of a relative character. For a chattel to become part of immovable property and to be regarded as such property, we should think it must become attached to the immovable property as permanently as building or a tree is attached to the earth. If, in the nature of things, the property is a movable property and for its beneficial use or enjoyment, it is necessary to imbed it or fix it on earth though permanently that is, when it is in use, it should not be regarded as immovable property for that reason. That, as we understand, is the ratio of 1955-2-M.L.J.215=AIR 1955 Mad 620 = 68 L.W.527) (F.B) Subramanian Firm v. Chidambaram Servai resembles the principles of 1955-2-M.L.J.215 - AIR 1955 Mad 620 FB = 68 L.W.527). Certain tenants installed an oil engine as part of a cinema in a certain leasehold land, with the object of utilizing the machinery for their profit. Wadsworth, J., held that a security bond pledging the oil engine could not be deemed to be a transaction relating to immovable pr....
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....under the English law. Different considerations have been applied by English Courts in deciding whether given things amounted to fixtures in the sense in which the term is understood in the law relating to real property. Nevertheless, reference may be made to two of those English cases. In Leigh v. Taylor (1902 A.C.157), the House of Lords held that valuable tapestries affixed by a tenant for life to the walls of a house for the purpose of ornament and the better enjoyment of them, were not fixtures and therefore, did not pass with the freehold to the remainderman. The House of Lords thought that the tapstries formed part of the personal estate of the tenant for life. The speech of Lord Halsbury shows that questions like this cannot always be answered, in the nature of things, with arithmetical accuracy, but certain discernible tests, as aids in deciding the question, are well established, as for instance, if something is made part of the house, it must necessarily go to the heir, because the house goes to the heir and it is part of the house. So, where something is attached in some form to the walls of a house, nevertheless, having regard to the nature of the thing itself, and the....
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....that they are so attached to earth, so as to make it appear that such acticles have been so imbedded for the permanent beneficial enjoyment of the mill premises itself. We accept the evidence of P.W.2 in the absence of any contrary materials before us, to say that the imbedding is as urged by Mr.Venkatrama Iyter From the conduct of the borrowers and from the intrinsic value of the recitals in Exhibit A24 which is the hypothecation deed we are unable to resist the reasonable conclusion which flows from the surrounding circumstances and the facts of this case, that the parties intended that the machineries delineated in Exhibit A29 were to be understood and meant as movable property rather than as immovable property in the sense that they become imbedded to earth so permanently as without it, the mill premises cannot be beneficially enjoyed." 11. Bearing the principles laid down in the various cases citex above, I am of the view that except the observations in 1968 II M.L.J.596 = 81 L.W.570 (supra), the other cases strongly support the contention of the learned counsel for the respondent-Bank. In fact, the Division Bench in A.I.R.1969 Madras 346 81 L.W.19 S.N. (supra) has observed t....