1995 (7) TMI 38

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....SYED SHAH MOHAMMED QUADRI J.--This reference is made under section 256(1) of the Income-tax Act, 1961, at the instance of the Revenue. The question referred to this court is as follows : " Whether, on the facts and in the circumstances of the case, the items in the agreement dated December 27, 1960, except 12 items mentioned in the Tribunal's order, can be considered as immovable properties and....

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....under section 41(2) in a sum of Rs. 37,066 and capital gain of Rs. 46,363. The assessee went in appeal before the Appellate Assistant Commissioner, but was unsuccessful. On appeal before the Appellate Tribunal, the Tribunal came to the conclusion that the items mentioned in the agreement dated December 27, 1960, though described as movables were in fact immovable properties and as the Appellate As....

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....pression "immovable property" is defined in section 3 of the Transfer of Property Act in the following terms: " 'immovable property' does not include standing timber, growing crops or grass." It is evident that the definition does no more-than exclude standing timber, growing crops or grass from the concept of immovable property. Here it would be useful to refer to the definition of that exp....

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....tached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached." A combined reading of the definitions of the expressions "immovable property" and "attached to earth" in the abovesaid enactments, leads to the conclusion that the benefits arising out of the land and things rooted in the earth as in the case of trees and shrubs or imbedded in the earth as in ....