- (1.) Whether the transfer of plants and machineries fastened to earth reported to be in a removable condition by a transferor who had no right or title to the land and the transferee having not acquired any interest in the land by reason of such transfer could be defined as immovable property for the purpose of imposing Stamp Duty on a document regarding such transfer sought to be registered under the Indian Registration Act is an interesting question which arises in the present writ petition.
(2.) Plot Nos. D-17 and B-14, Industrial Estate, Orai was developed by the U. P. State Industrial Development Corporation, hereinafter referred to as 'UPSIDC' a State Government Undertaking. The UPSIDC allotted the said two plots in favour of M/S Bhatinda Chemicals for setting up an Oil Factory on a premium of Rs. 4,82,372.00 on an average annual rent of Rs. 831.35. M/s Bhatinda Chemicals, in order to establish the Factory, had installed plants and machineries in the said plot. But ultimately it was unable to continue and had surrendered the lease on 2/06/1990 to the U.P.S.I.D. On account of such surrender, the said Bhatinda Chemicals had no interest or title to the land except its right to remove the said plants and machineries which were transferred for valuable consideration by Bhatinda Chemicals on 16/09/1991, in favour of M/S Orai Oil Chemicals Pvt. Ltd., the petitioner herein. Though no registered document is necessary, for effecting the transfer and the transfer was effected by delivery of possession in consideration of the value paid and the property in the case stood transferred to the petitioner, but only in order to create a proof of such transfer, a document regarding such transfer was sought to be registered under the Indian Registration Act on 16/09/1991 itself. According to the petitioner, the agreement for sale of the said plants and machineries was executed on 12/12/1989 together with another agreement on 13/05/1990 which culminated in the transfer, on 16/09/1991. By reason of such transfer, according to the petitioner, it had acquired only a right to remove those plants and machineries. In the meantime, the petitioner obtained lease of same plots from UPSIDC on 7th of September 1990. Now the said document was sought to be impounded while charging additional Stamp Duty and penalty from the petitioner on the ground that the said plants and machineries are immovable properties and are chargeable for Stamp Duty as such. On a reference being made to the Collector, the Collector had decided in favour of the petitioner. By order dated 11/04/1993, the Collector, in exercise of power under Section 47-A(2) (4) and Section 33 of the Stamp Act read with Rule 350 of the same Rules held that the document did not purport to a transfer of any right to immovable property and, therefore, the Stamp Duty on the document was sufficient and accordingly he issued a certificate as provided in Rule 350 read with Sections 40 and 42 of the said Act which is Annexure '3' to the writ petition. The State of U. P. filed a revision under Section 36(1) of the said Act before the Chief Controlling Revenue Authority, U.P. The petitioner's objection to the maintainability of the revision was rejected by the Chief Controlling Revenue Authority U. P. by order dated 10/06/1993 being Annexure '5' to the writ petition and thereafter by order dated 6/06/1995, he had held that the said document purports to transfer immovable property and, as such, stamp duty as payable on account of transfer of immovable properties is chargeable on the said document and, therefore, had directed payment of additional Stamp Duty together with penalty. The said order dated 6/06/1995 is Annexure "6'' to the writ petition. It is against these two orders dated 10/06/1993 and 6/06/1995 being Annexures '5' and '6' respectively, the present writ petition has been moved.
(3.) The learned counsel for the petitioner Mr. Budhwar appearing with Mr. Arun Tandon submits that for the purpose of imposing Stamp Duty, it is not the property but the nature of the property that is to be determined on the basis of the transfer made on the date and not on the basis of a subsequent transaction. Secondly he contends that it is what is described in the deed that would govern the transaction and nothing can be incorporated or included therein for determining the character of the property transferred. His third contention was that Section 56 of the Indian Stamp Act does not confer power of revision in Chief Controlling Revenue Authority and that no revision is maintainable when the Collector exercised power under Section 47-A (4) having held that the document is correctly stamped. His fourth contention is that the nature of the property cannot be determined under Section 47-A of the said Act. The power derived by the Collector under Section 47-A is altogether different inasmuch as the said section deals with the determination of market value and not the nature of the property. His fifth contention was that after the lease was surrendered, the transferor had only the right to remove the machineries and he had no right in the land and in such cases the machineries cannot be termed to be immovable since he can not transfer any interest in the land and the transferee acquires only an interest in the machineries with the right to remove the same, when on the facts it is proved on inspection directed by the Collector that machineries were lying in the shed in removable condition. His last contention was that Annexure '3' shows that the properties were lying unattached to the earth and, therefore, by no stretch of imagination, the machineries could be treated to be immoveable properties for the purpose of Stamp Duty.;