PRASAD, J. - (1.) ALL these revision petitions circle around a principal question, whether the plant and machinery given on lease by a Co-operative society is a movable property or an immovable property ?
(2.) A judgment of the Rajasthan Tax Board is under challenge wherein, it has been held that plant and machinery given on lease is immovable property. Aggrieved by the same, the present revision petitions have been preferred by the assessing authority. For the purposes of facts, revision petition No. 207/2003 is taken. Respondent-assessee has given his land, building, plant and machinery on lease for the year 1993-94. He received a lease money of Rs. 6,21,000/- lease included plant, machinery, land and building of the assessee. The Assessing Officer gave rebate as per the Rules of P. W. D. at the rate of 8. 5% on land and building. The other amount on account of lease on plant and machinery was subjected to tax treating it to be movable property. The assessee preferred an appeal before the Dy. Commissioner (Appeals), Bikaner. On appeal, the appellate authority waived the penalty holding that the assessee being a co-operative society had no personal interest, and therefore, there being no malafide intention, is not liable to be penalised by putting penalty. The liability of tax was however, maintained. A second appeal was preferred before the Rajasthan Tax Board, Ajmer. By the order impugned, the Tax Board has held that the plant and machinery imbedded to earth are covered by the connotation "immovable property" and therefore, they are not liable to be taxed. Aggrieved by the judgment of the Rajasthan Tax Board, the assessing officer has preferred the present revision petition. It has been contended on behalf of the assessing officer that the plant and machinery used for ginning and pressing cotton, cannot be treated as to be immovable property. They are not imbedded in earth in such a fashion so as to give them a character of immovable property. The General Clauses Act, 1897 (Central) [hereinafter referred to as "general Clauses Act'] defines "immovable property" to be one which include land, benefits to arise out of land, and things attached to the earth. Section 3 (26) of the General Clauses Act is quoted hereinbelow for ready reference :- 3 (26) "immovable Property' shall include land, benefits of arise of land and things attached to the earth or permanently fastened to anything attached to the earth. "
(3.) IT has further been contended on behalf of the revisionist that definition of "immovable property" as given in Registration Act, 1908 [hereinafter referred to as "the Registration Act'] is also exhaustive. For ready reference, relevant portion of Section 3 of the Transfer of Property Act, 1882 [hereinafter referred to as `act of 1882'] is quoted hereinbelow for ready reference :- " 3. In this Act, unless there is something repugnant in the subject or context, "immovable property" does not include standing timber, growing crops or grass; " attested", in relation to an instrument, means. . . . . . . " registered" means. . . . . . . . . " attached to earth" means -- (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached; " actionable claim" means. . . . . . . . . . . . . . . . . . . . . According to the learned counsel for the petitioner, to give a particular property a character of immovable property, the plant and machinery should be so imbedded for the permanent beneficial enjoyment of that to which it is attached. For explaining its stand, the petitioner has stated that the degree, manner, extent and strength of attachment of the chattel to the earth or building, are main features to be regarded. According to the petitioner, three aspects narrated hereinabove show that the attachment should be such as to partake the character of the attachment of the trees or shrubs rooted to the earth, or walls or building imbedded in that sense. Further, whether, such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. The petitioner has further averred that attachment of oil engine to earth though it is a fixture, is for the beneficial enjoyment of the engine itself and in order to use engine, it has to be attached to the earth and the attachment lasts only so long as the engine is used. While not in use, it can be detached and shifted to some other place. The inference which is sought to be drawn from above is that no case is made out to make the engine part of the land as immovable property and therefore, it cannot be treated to be immovable property. ;