HELD in the nature of the transaction, and what was actually sold by the Official Liquidator, plant and machinery, such as would answer the description of immovable property, must also be found part of the property for the purpose of the stamp duty and other charges as per law.

“D. WHEREAS the Official Liquidator has put the properties of the Company for sale in terms of orders of the Hon’ble High Court and whereas the Hon’ble High Court of Andhra Pradesh, Hyderabad by an order dated 04-022004 made in C.A.No.736/2003 in R.C.C.No. 10/2001 (copy enclosed) was pleased to confirm the sale of the assets pf the Company such as land, building, plant and machinery and other assets in favour of Messrs SMC Marketing Pvt. Ltd., having its office at Room No.617, 6th floor, P 41, Princep Street, Kolkatta – 700 072, represented by its authorized representative Sri Amar Chand. Choudhary for a total sale consideration of Rs.8.35 crores.

E. WHEREAS the Hon’ble High Court of Andhra Pradesh, Hyderabad passed by an order dated 15-06-2004 made in C.A. No. 1202/2004 was pleased to direct the Official Liquidator to execute necessary conveyance deeds for the land sold in auction in favour of the vendee here in who is the nominee of the said highest bidder Messrs SMC Marketing Pvt. Ltd. A copy of which is enclosed herewith.”

“H. WHEREAS the Vendee has paid the full consideration to the vendor within the time stipulated by the Hon’ble High Court of Andhra Pradesh, Hyderabad and as per the terms and conditions of the sale, properties have been sold by the Vendor to the Vendee on ‘as is where is whatever there is basis’. Vendor hereby admits and acknowledges that he has received the full consideration from the Vendee and there is no balance payable by him. Further the Vendor has already given possession of the Schedule property to the Yendee under due acknowledgement. The Vendor hereby conveys, transfers and assigns all the rights, title interest together with all the liberties, advantages, held and enjoyed by Messrs Midwest Iron & Steel Co. Ltd., to the Vendee, who shall hereinafter enjoy the same with full and absolute rights without any dispute or objection from any source as owner.

AND WHEREAS the total sale consideration is Rs.8.35 crores for the entire assets of the company comprising of land, building, Civil works, plant & machinery and current assets, etc”

An amount of Rs.1,01,05,000/- is taken as the value of the land, building and civil works basing on the offer received by the official liquidator when the assets were put for sale individually and the purchaser has agreed to pay the stamp duty / registration fees /transfer fees as per the-value derived by the sub registrar.

WHEREAS the land to an extent of Acres 46.7167 cents situated in Dusi Village as per details given below is now registered in favour of the VENDEE through this document, hereinafter referred to as the ‘SCHEDULED PROPERTY’ for brevity, which is fully described in the schedule of property and clearly delineated in red colour in the plan annexed hereto.

“NOW THE VENDOR HEREBY ASSURES AND COVENANTS THE VENDEE AS UNDER:

In consideration of the said amount paid by the Vendee, the Vendors here.by scll, transfer, convey, alienate, assign unto and to the use of the Vendee absolutely and forever all that the scheduled property along with all the rights, easements, interests etc., the rights which ordinarily pass on through such sale on and over the said land in favour of the Vendee to hold and to enjoy the same as absolute owner.”

“All that piece and parcel of the property admeasuring acres of 46.7167 cents situated at Dusi Village, Srikakulam District, within the limits of Sub-Registrar, Amudalavalasa, belonging to M/s. Midwest Iron & Steel Co. Ltd. in the above R.S. Numbers sold by the Vendor to Vendee is bounded by…” The boundaries are hereafter set out.

“Application under Section of the Companies Act, 1956 R/W Rule 9 of the Companies (Court) Rule, 1959, praying that this High Court may be pleased to direct the Official Liquidator to execute the sale deed in respect of the land and building and civil works belonging to the company in liquidation fora consideration of Rs. 40,13,000/- in favour of the Applicant’s nominees-M/s. Dankun.l Steels Lim.1ted.

b) Direct the Official Liquidator to execute a sale certificate in favour of the Applicant’s nominees. M/s. Dankuni Steels Limited, in respect of the plant and machinery for a consideration Rs. 751.27 Lakhs and in respect of the current assets and furniture and fixtures in the sum of Rs. 43,60,000/-.

c) Direct the Official Liquidator to obtain all the original documents of title deposited by company in liquidation with financial institutions viz., ICICI Bank Limited, IDBI, Canara Bank, United Western bank Limited, IFCI, IIBI and State Bank of India, and deliver the same to the Applicant’s nominees, M/s. Dankuni Steels Limited.

This Application coming on for orders upon reading the Judge’s Summons and the affidavit dated: 23-4-2004 and filed by Mr. Amar Chand Choudary, authorized Representative of the Application in support of this Application and upon hearing the arguments of Mr. Anil Kumar counsel for The Official Liquidator and of Mr. S. Ravi, Advocate for the applicant and of Mr. M. Anil Kumar, Counsel for the Official Liquidator on behalf of the respondent”

” … The learned counsel also placed before me Form No.32 issued by the Office of Registrar of Companies, Calcutta, showing that Sri Amit Ganguly, S/o late B.N. Ganguly, who is the Director of applicant company in M/s. Dankuni Steels Limited. A certificate issued by the Director of the applicant company placed before the Court would show that the applicant company holds 9,000 (Nine thousand only) shares of Rs.10/- each of M/ s. Dankuni Steels Limited. .”

“… Insofar as the relationship between the applicant company and M/ s. Dankuni Steels Limited, this Court is satisfied that the applicant is justified in taking sale deed in favour of M/s. Dankuni Steels Limited. Insofar as the relief in the application to direct the Official Liquidator to execute the sale deed in favour of M/s Dunkuni Steels Limited for a consideration of Rs.40, 13,000/- (Rupees forty lakh and thirteen thousand only) is confirmed in the auction conducted by this Court, as the land, building and machinery of the company in liquidation was sold to the applicant company at a price of Rs.8,35,00,000/- (Rupees eight crore thirty five lakh only) , it would be better if the issue as to the value of the property in respect of which a conveyance deed has to be executed is decided by the Registration Authorities. It is needless to observe that at the time of completion of this exercise, Official Liquidator will hand over all the original documents in respect of the property.

The application is, accordingly, ordered.” (emphasis supplied)

“GOVERNMENT OF ANDHRA PRADESH ABSTRACT

Indian Stamp Act, 1899 – 50/o Exemption from payment of Stamp Duty and Registration Fee on the instruments of leases, lease-cum-sales and sales executed in favour of Industrial Units in the State for the purposes of selling up or expansion or development of Industries – Orders – Issued.

REVENUE (REGISTRATION.II) DEPARTMENT

1. Letter from the Chairman and Managing D1rector, A.P.I.I.C. No.SIPC/APIIC/M(Pig)/97, dt.11.5.2000.

2. From the Commissioner and Inspector General of Registration and Stamps Letter No.Sl/10783/2000, dt.28.9.2000 and even No., dt.17.11.2000.

3. G.O.Ms.No.9, Industries & Commerce Department, dt.5.1.2001.

ORDER:-

In pursuance of the decisions of the SIPD, orders were issued in G.O.Ms.No.9, Industries & Commerce Department, dt.5.1.2001, enunciating a New Industrial Policy for 20002005. Among various other decisions, exemption of 50% Stamp Duty, Registration Fee and Transfer Duty was allowed on lands meant for Industrial use. Exemption of Stamp Duty and Registration Fee ‘for loan agreements, credit deeds, mortgages and hypothecation deeds executed by the Industries in favour of banks or financial institutions has also been included in the Policy. New Industrial Units ether than listed as ‘ineligible’ in the Government order cited third above, would be eligible for the concession in stamp duty and registration fees as notified below.

Basing on the above decision, the following Notifications will be published in the next issue of the Andhra Pradesh Gazette:-

In exercise of the powers conferred by clause (a) of sub-section -(1) of section 9 of the Indian Stamp Act, 1899 (Central Act II of 1899), the Government of Andhra Pradesh hereby reduces the stamp duty by 50 percent on the instruments of leases, lease-cum-sales and sales executed in favour of Industrial units and also remits Stamp Duty in full on laan agreements, credit deeds, mortgages and hypothecation deeds executed by such Industrial units in favour of banks or financial institutions for the purposes of setting up or expansion or development of Industries.

In exercise of the powers conferred under Section 78 of the Registration Act, 1908 (Central Act XVI of 1908), the Governor of Andhra Pradesh hereby makes the following amendment to the “Table of Fees” – issued in G.O. MS. N0.1637, Revenue Department, dated the 3rd September, 1958 and published at pages 2250 to 2253 of Part I of the Andhra Pradesh Gazette, Dated:ll.09.1993 is subsequently amended from time to time.

In the said “Table of Fees” in article l(a), after clause “K (XCXXIV)”, the following clause shall be added, namely :-

“K (XCXXV): The Registration Fee leviable under this Article on the instructions of leases, lease cum sales and sales executed in favour of industrial units shall be reduced by 50 percent and no registration fee shall be leviable on loan agreements, credit deeds, mortgages and hypothecation deeds executed by such industrial units in favour of banks or financial institutions for the purposes of setting up or expansion or development of industries”.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) K.C.MISRA PRINCIPAL SECRETARY TO GOVERNMENT”

(1) The chargeable value as per the contents of the documents was assessed to be Rs.8.35 crores whereas respondents 1 and 2 had stated that only the land and buildings were being transferred for Rs.1,01,05,000/-.

(2) Since 50% exemption was being claimed, the G.O. had to be verified thoroughly.

(3) The land in some of the Survey Nos. were found to be Government land.

“5. Though the Company Court initially directed . auction of the assets of the Company in three lots, having felt that the bids received for the lots are inadequate, the learned Judge directed sale of all the three lots i.e. (i) Land, Buildings and Civil Works; (ii) Plant and Machinery; and cJii) Current Assets and Swaraj Mazda vehicle, as one lot only. Therefore, the fact that the Company Court originally directed sale of the assets of the Company in three lots has no relevance for deciding these petitions because second petitioner, admittedly, purchased the assets of the company as one lot only, in the open auction held by the Company Court, but not as three different lots .

6. It is no doubt true, as per the proviso to Section 47A(6) of the, Stamp Act, instruments executed by or on behalf .of the Central Government or the State Government or any authority or body incorporated by or under any law for the time being in force and wholly owned by Central/State Government, the market value of the property shall be the value shown in such instrument. This provision, far from helping the petitioners, would go against their contention that sale deed can be executed for Lot l only, inasmuch as assets of the company were advertised for sale in three lots, because all the three assets of the company were purchased by the second petitioner only as one lot, but not in three different lots, and since there is nothing in the sale deed in question to show the exact value of the Land, Building and Civil works. The file produced by the official liquidator shows that there was correspondence between him and the petitioners with regard to the contents etc. of the sale deed to be executed by him i.e. official liquidator. Here, I am constrained to observe that the official liquidator does not seem to have acted fairly while executing the sale deed in question, and seems to have made an attempt to favour the petitioners by suppressing certain fact: and incorporating the undermentioned highlighted portion in page 3 of the sale deed in question reading –

“AND WHEREAS the total sale consideration is Rs.8.35 crores for the entire assets of the company comprising of land, building, Civil works, plant & machinery and current assets, etc., An amount of Rs.1,01,05,000/- is taken as the value of the land, building and civil works basing on the offer received by the official liquidator when the assets were put for sale individually and the purchaser has agreed to pay the stamp duty/registration fees/transfer fees as per the value derived by the sub registrar.” obviously that statement, mentioning the value of the building etc. as Rs.1,01,05,000/- is made on the basis of the offers received by him (official liquidator) on 04-12-2003 whereat M/s.Bhagya Nagar Metals Ltd., offered Rs 101.05 lakhs for Lot No.1 and Rs.301.00 lakhs for Lot No.2, and M/s.Mahavir Ghantakaram Enterprises offered Rs.29.50 lakhs for Lot No.3. So, it is clear that the total value of the offers for the three lot received by the official liquidator, on 04-12-2003, was Rs.431.55 lakhs. But, on 30-12-2003, M/s.Concast Ispat Ltd., which (as per the letter dated 13-082004 of the Genera! Manager, District Industries Centre, Srikakulam, addressed to the fourth respondent, relied on by the petitioners, produced as a material document along with the petition) seems to be a group company of the petitioners, gave a consolidated offer for Rs.576.00 lakhs for the three lots put together, and the bid ultimately was knocked down in favour of the second petitioner for Rs.835.00 lakhs, for all the three lots put together, in the court auction held on 04-02-2004. Thus, official liquidator knows, and if he were to say that he does not know, should be imputed with knowledge that this offer dated 04-12-2003 for the Land, Buildings and Civil works for Rs.101.05 lakhs does not truly and correctly represent the value of the Land, Buildings and Civil works. In fact, in his letter bearing No.OL/AP/RCC.10/ 2001/AR/2004 dated 04-02-2004 addressed to the second petitioner, official liquidator stated:

“With reference to the open auction held on 4-2-2004 before the Hon’ble High Court of Andhra Pradesh, Hyderabad in the matter of sale of entire assets of the subject company I am to inform you that the Hon’ble High Court vide their order dt.4-2-2004 made in C.A.No. 736/2003 accepted your offer for the purchase of entire assets of the company as one Lot i.e., Land & Buildings & Civil Works, Plant and Machinery and Current Assets, Furniture & Fixtures including Swaraj Mazda Vehicle lying at Dusi Village, Srikakulam District for a total sale consideration. of Rs.8,35,00,000/-. The Hon’ble High Court was pleased to grant three months from the date of confirmation i.e., 4-2-2004 for making balance sale consideration of Rs.6.28 Crores as follows:

Yet, the official liquidator, for reasons known to him only, mentioned the non-existing ‘offer value’ of Rs.101.05 lakhs as the value of the Land, Buildings and Civil works, in the sale deed.

“8. In R.C.C.No.10/2001/ AR/2004 dated 05-8- 2004 sent by him, in reply to the memo impugned in W.P.No.16104 of 2004 issued by the third respondent, official liquidator stated as follows. “In pursuance of the orders of the Hon’ble High Court of Andhra Pradesh, Hyderabad in the reference cited, I have executed a sale deed dated 05-08-2004, in favour of M/s.Dankuni Steels Limited, Kolkatta transferring the assets of the company M/s.Midwest Iron and Steel Limited, Dusi Village, Srikakulam District which is in liquidation for Rs.1,01,05,000/- and signed all the connected statements of the said document.

“the Commissioner of Industries, Andhra Pradesh, Hyderabad informed that M/s. Concast Ferro Inc, Dusi Village, Amadalavalasa Mandal, Srikakulam District who have obtained IEM No. 2284/SIA/IMO/2004 dt.25.06.2004 for establishing unit for the line of activity (1) Pig Iron (2) Granualated slag and (3) Coke Fines by acquiring the sick unit through official liquidator, High Court of Andhra Pradesh as a new Entrepreneur is entitled for availing 50% Exemption Duty exclusive under NIP 2000-2005 scheme.

Therefore I request you kindly allow 50% stamp duty, Registration fee and transfer for loan agreements, credit deeds, mortgages and hypothecation deeds executed by the Industrial Unit in favour of banks or financial institutions on lands meant for industrial units after fulfilling the formalities in terms of G.O.Ms.No.103 Revenue (Registration) Department dated 07.02.2001.”

“From a combined reading of Section 3 of Transfer of Property Act, Section 2(6) of Registration Act and Section 3(26) of General Clauses Act, it is clear that plant and machinery of the company, purchased by second petitioner in court auction, also are immovable properties forming part of the land and buildings in or on which they are located. In my considered opinion, petitioners claiming benefit under G.O.Ms.No.103 dated 07.02.2001, while contending that the sale deed in question is for Land, Buildings and Civil works only, but not plant and machinery, would be incongruous, because the intention of the Government in passing the above G.O., obviously, is to give benefit to ‘industrial units’. It does not enable an owner of an ‘industrial unit’ purchasing vacant land, claiming benefit of the G.O., just to sell it away as plots and make money. The intention of the government obviously is that ‘industrial unit’ should be established in the land and that the land should itself be used, for running an ‘industrial unit’ by the purchaser. So, it is clear that the above extracted G.O. is meant to encourage establishment and running of industrial units only. Since petitioners are claiming benefit of the above extracted G.O. and since they also obtained permission from the Court to clean and over haul the machinery, it is clear that the sale deed in question covers not only Land, Buildings and Civil works but plant and machinery also.”

“When we asked the learned Government Pleader as to how the petitioner could be forced to register even the plant and machinery when they only seek registration of the land and buildings, Learned Government Pleader would submit that the value of the land and buildings would be required to be determined by the Sub-Registrar; and the petitioner’s claim that its value was only Rs.1,01,05,000/- could not be accepted. As the petitioner only seeks registration of land and buildings, and would run the risk of the plant and machinery not being registered, the Sub-Registrar cannot force them to pay stamp duty on the value of plant and machinery when they do not seek its registration. The question whether the value of these lands and buildings, on the date of presentation of the document, was Rs.1,01,05,000/- or not is a matter which the Sub-Registrar is required to consider; and it is on the value of the land and buildings, as determined by. him, that stamp duty and registration charges would be required to be paid subject, of course, to the petitioner’s right to question the order of the SubRegistrar before the appellant authority under the Act. As the petitioner has given up their claim for 50% exemption and Sri S. Ravi, learned Senior Counsel, would fairly state that, if a part of the land sought to be registered is found to be Government land it. may be excluded from registration subject to the petitioner’s right to avail their legal remedies, against any such action, being left open, we consider it appropriate to dispose of both the Writ Appeals directing the Sub-Registrar to consider the petitioner’s request for registration of the lands and buildings of the company under liquidation, purchased by them in the auction conducted by the Official Liquidator; determine its value on the date of presentation of the document for registration; collect the stamp duty and registration fees thereupon; and, thereafter, consider registration of the sale deed effecting transfer of the lands and buildings, of the company under liquidation, to the petitioner herein, in accordance with law. The entire exercise shall be completed at the earliest preferably within three 1 months from the date of receipt of a copy of this order. Both the appeals are disposed of accordingly. There shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.

a. Whether there is a comprehensive sale of all the assets and, in a single transaction, is it permissible to draw up a conveyance for only a part of such transaction for seeking registration?

b. Second issue, according to him, is whether the Registration Authorities are empowered to go behind an ostensible instrument and ascertain the stamp duty payable on the actual transaction?

A. Land and Building – which is immovable property.

B. Plant and Machinery that may be permanently embedded to the earth and answering the description of immovable property as defined.

C. Plant and Machinery and other effects which may not come under the description of immovable property and hence constitute movable property.

D. Current Assets and Motor Vehicle which are movable property.

Section 2(14) of the Act as under:

“(14) “instrument” includes–

(a) every document, by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded;

(b) a document, electronic or otherwise, created for a transaction in a stock exchange or depository by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded; and

(c) any other document mentioned in Schedule I,

but does not include such instruments as may be specified by the Government, by notification in the Official Gazette.”

“3. Instruments chargeable with duty. – Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore respectively, that is to say-

(a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in India on or after the first day of July, 1899;

(b) every bill of exchange payable otherwise than on demand] or promissory note drawn or made out of India on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred otherwise negotiated, in India; and

c) every instrument (other than a bill exchange, or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of India on or after that day, relates to any property situate, or to any matter or thing done or to be done, in India and is received in India:

Provided that no duty shall be chargeable in respect of-

(1) any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument;

(2) any instrument for the sale, transfer or other disposition, either absolutely or by way of mortgage or otherwise, of any ship or vessel, or any part, interest, share or property of or in any ship or vessel registered under the Merchant Shipping Act 1894, Act No. 57 & 58 Vict. c. 60 or under Act XIX of 1838 Act No. or the Indian Registration of Ships Act, 1841, (CX of 1841) as amended by subsequent Acts.

4. Several instruments used in single transaction of sale, mortgage or settlement. – (1) Where, in the case of any sale, mortgage or settlement, several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule I, for the conveyance, mortgage or settlement, and each of the other instruments shall be chargeable with a duty of one rupee instead of the duty (if any) prescribed for it in that Schedule.

(2) The parties may determine for themselves which of the instrument so employed shall, for the purposes of sub-section (1), be deemed to be the principal instrument:

Provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments employed.

5. Instruments relating to several distinct matters. – Any instrument comprising or relating to several distinct matters shall be chargeable with the aggregate amount of the duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under this Act.”

“27. Facts affecting duty to be set forth in instrument. -The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it its chargeable, shall be fully and truly set forth therein.”

“Provided that a registering officer appointed under the Registration Act, 1908 or any other officer authorised in this behalf, may inspect the property, which is the subject matter of such instrument, make necessary local enquiries, call for and examine all the connected records and satisfy that the provisions of this section are complied with.”

“47-A. Instruments of conveyance, etc., under-vaulted how to the dealt with: – (1) where the registering officer appointed under the Registration Act, 1908, (Central Act 16 of 1908), while registering any instrument of conveyance, exchange, gift partition, settlement, release , agreement relating to construction, development or sale of any immovable property or power of attorney given for sale, development of immovable property, has reason to believe that the market value of the property which is the subject matter or such instrument has not been truly setforth in the instrument, or that the value arrived at by him as per the guidelines prepared adopted by the parties, he may keep pending such instrument, and refer the matter to the Collector for determination of the market value of the property and the proper duty payable thereon:

Provided that no reference shall be made by the registering officer unless an amount equal to fifty percent of the deficit duty arrived at by him is deposited by the party concerned.

(2) On receipt of a reference under sub section (1), the Collector shall after giving the parties an opportunity of making their representation and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject matter of such instrument and the duty as aforesaid:

Provided that no appeal shall be preferred unless and until the difference, if any, in the amount of duty is paid by the person liable to pay the same, after deducting the amount already deposited by him. Provided further that where after the determination of market value by the Collector, if the stamp duty borne by the instrument is found sufficient the amount deposited shall be returned to the person concerned without interest.

(3) the Collector may suo motu within two year from the date of registration of such instrument, not already referred to him under sub section (1), call for an examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject matter of such instrument and the duty payable thereon and if, after such examination, he has reason to believe that market value of such property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in subsection (2). The difference, if any in the amount of duty, shall be payable by the person liable to pay the duty: Provided that noting in this subsection shall apply to any instrument registered before the date of commencement of the India Stamp (Andhra Pradesh Amendment) act, 1971.

(3-A) (i) The Inspector General may suo motu, call for and examine the record of any order passed or proceeding recorded by the Collector under subSection (3), and if such order or proceeding recorded is found leading to loss of legitimate revenue due to disregard of market value by the Collector, based on mistake, omission, or failure to take any factual evidence effecting the market value of the property, may make such enquiry or cause such enquiry and inspection of the property to be made and subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order in reference thereto as he thinks fit determining the market value and corresponding deficit stamp duty: Provided that the powers conferred under this clause shall be invoked within a period of six months from the date of the order or proceeding issued by the Collector under subsection (3);

(ii) The power under clause (I) shall not be exercised by the authority specified therein in respect of any issue or question which is the subject matter of an appeal before, or which was decided on appeal by the appellate authority under sub-section (5);

(iii) no order shall be passed under Clause (I) enhancing any duty unless an opportunity has been given to the party to show cause against the proposed revision of market value and deficit stamp duty;

(iv) where any action under this sub-section has been deferred on account of any stay order granted by the Court in any case, or by reason of the fact that another proceeding is pending before the Court involving a question of law having a direct bearing on the order or proceeding in question, the period during which the stay order was in force or each proceeding was pending shall be excluded in computing the period of six months specified in the proviso to clause (I) of this section for the purposes of exercising the power under this sub-section.

(4) Any person aggrieved by an order of the Collector under sub-section (2) or subsection (3) may appeal to the appellate authority specified in sub-section (5). All such appeals shall be preferred within such time and shall be heard and disposed of in such manner, as may be prescribed by rules made under this Act.

(4A) Any person aggrieved by the order of the Inspector General under subsection (3A) may appeal to the High Court within a period of two months from the date of receipt of such order.

(5) The appellate authority shall be—

(i) in the cities of Hyderabad and Secunderabad, the City Civil Court,

(ii) elsewhere- (a) the Subordinate Judge or if there are more than one Subordinate Judge, the Principal Subordinate Judge, having jurisdiction over the area in which the property concerned is situated; or

(b) if there is no such Subordinate Judge, the District Judge having jurisdiction over the area aforesaid.

(6) For the purpose of this Act, market value of any property shall be estimated to be the price which in the opinion of the Collector or the appellate authority, as the case may be, such property would have fetched or would fetch if sold in the open market on the date of execution of any instrument referred to in sub-section (1);

Provided that in respect of instruments executed by or on behalf of the Central Government or the State Government or any authority or body incorporate by or under any law for the time being in force and wholly owned by Central/state Government, the market value of any property shall be the value shown in such instrument.”

“In the Registration Act, 1908, the definition is;

“1(6) “Immovable Property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass;

In the General Clauses Act, 1897 it reads:

“3(26) “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth;

Transfer of Property Act, 1882

3. …

“immoveable property” does not include standing timber, growing crops or grass; “instrument”, means a non-testamentary instrument;

Section 8 of Transfer of Property Act, 1882

“8. Operation of transfer.-Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accured before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.”

“4. We are unable to accept the contention that the word “matter” in Section 5 was intended to convey the same meaning as the word “description” in Section 6. In its popular sense, the expression “distinct matters” would connote something different from distinct “categories”. Two transactions might be of the same description, but all the same, they might be distinct. If A sells Black-acre to X and mortgages White-acre to Y, the transactions fall under different categories, and they are also distinct matters. But if A mortgages Black-acre to X and mortgages White-acre to Y, the two transactions fall under the same category, but they would certainly be distinct matters. If the intention of the legislature was that the expression distinct matters in Section 5 should be understood not in its popular sense but narrowly as meaning different categories in the Schedule, nothing would have been easier than to say so. When two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense, and the conclusion must follow that the expression “distinct matters” in Section 5 and “descriptions” in Section 6 have different connotations.

7. The error in this argument lies in thinking that the object and scope of Sections 4 to 6 are the same, which in fact they are not. Section 4 deals with a single transaction completed in several instruments, and Section 6 with a single transaction which might be viewed as falling under more than one category, whereas Section 5 applies only when the instrument comprises more than one transaction, and it is immaterial for this purpose whether those transactions are of the same category or of different categories. The topics dealt with in the three sections being thus different, no useful purpose will be served by referring to Section 4 or Section 6 for determining the scope of Section 5 or for construing its terms. It is not without significance that the legislature has used three different words in relation to the three sections, “transaction” in Section 4, “matter” in Section 5, and “description” in Section 6.”

“11. It was urged that in view of Section 27 of the Stamp Act, it was permissible for the Revenue to look into the terms and conditions of the agreements entered into by Uttamchand with the various persons to whom he had assigned flats, offices and shops, particularly in view of the fact that the impounded document makes reference to those agreement. We are not able to accept that contention. Section 27 prescribes that “The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable shall be fully and truly set forth therein”. It is true that in view of this provision, the parties to a document are required to set forth in the document fully and truly the consideration (if any) and all other facts and circumstances affecting the chargeability of that document with the duty or the amount of the duty with which it is chargeable. But a failure to comply with the requirements of that section is merely punishable under Section 64 of the Stamp Act. No provision in the Stamp Act empowers the Revenue to make an independent inquiry of the value of the property conveyed for determining the duty chargeable. Article 23 is the article that governs the charging of stamp duty on “conveyance”. That article to the extent relevant for our present purpose reads:

“23. Conveyance as defined by Section 2(10) not being a transfer charge or exempted under Section 52. Where the amount or value of the consideration for such conveyance as set forth therein… . ” (emphasis supplied)

“8. … The question whether a machinery which is embedded in the earth is moveable property or an immovable property, depends upon the facts and circumstances of each case. Primarily, the court will have to take into consideration the intention of the parties (sic party) when it decided to embed the machinery, whether such embedment was intended to be temporary or permanent. A careful perusal of the agreement of sale and the conveyance deed along with the attendant circumstances and taking into consideration the nature of machineries involved clearly shows that the machineries which have been embedded in the earth to constitute a fertilizer plant in the instant case, are definitely embedded permanently with a view to utilise the same as a fertilizer plant. The description of the machines as seen in the schedule attached to the deed of conveyance also shows without any doubt that they were set up permanently in the land in question with a view to operate a fertilizer plant and the same was not embedded to dismantle and remove the same for the purpose of sale as machinery at any point of time. The facts as could be found also show that the purpose for which these machines were embedded was to use the plant as a factory for the manufacture of fertilizer at various stages of its production…

“10. The next question for consideration is whether the vendor did transfer the title of the plant and machinery in the instant case by the conveyance deed dated 9-6-1994. Here again, it is imperative to ascertain the intention of the parties from the material available on record. While ascertaining the intention of the parties, we cannot preclude the contents of the agreement pursuant to which the conveyance deed in question has come into existence. We have noticed that as per the agreement it is clear that what was agreed to be sold is the entire business of fertilizer on an “as is where is” basis including the land, building thereon, plant and machinery relating to fertilizer business – description of which is found in the definition of the term “fertilizer business” in the agreement itself which has been extracted by us hereinabove. It is not the case of the appellant when it contends that the possession of plant and machinery was handed over separately to the appellant by the vendor, that these machineries were dismantled and given to the appellant, nor is it possible to visualise from the nature of the plant that is involved in the instant case that such a possession dehors the land could be given by the vendor to the appellant. It is obviously to reduce the market value of the property the document in question is attempted to be drafted as a conveyance deed regarding the land only. The appellant had embarked upon a methodology by which it purported to transfer the possession of the plant and machinery separately and is contending now that this handing over possession of the machinery is dehors the conveyance deed. We are not convinced with this argument. Apart from the recitals in the agreement of sale, it is clear from the recitals in the conveyance deed itself that what is conveyed under the deed dated 9-61994 is not only the land but the entire fertilizer business including plant and machinery. A perusal of clauses 10, 11 and 13 of the said deed shows that it is the fertilizer factory which the vendor had agreed to transfer along with its business as a going concern and to complete the same the conveyance deed in question was being executed. There is implicit reference to the sale of fertilizer factory as a going concern in the conveyance deed itself…. “

11. Learned counsel for the appellant has placed for our consideration a judgment of this Court in the case of Himalaya House Co. Ltd. v. Chief Controlling Revenue Authority [ (1972) 1 SCC 726] to contend that a mere reference to an earlier agreement does not amount to incorporation of the terms and conditions of an earlier transaction or the intention of the parties. We have carefully considered the said judgment and, in our opinion, that judgment does not in any manner lay down the law in absolute terms that a court cannot look into prior agreements while considering the intention of the parties for finding out what actually is the property that is conveyed under the deed under consideration. It is again based on facts of that case that this Court came to the conclusion therein that the so-called terms and conditions which were found in an earlier agreement were not intended to be incorporated in the subsequent document..

13. For the reasons stated above, we are of the considered opinion that the vendor as per the conveyance deed dated 9-6-1994 has conveyed the title it had not only in regard to the land in question but also to the entire fertilizer business on “as is where is” condition including the plant and machinery standing on the said land. Therefore, the authorities below were totally justified in taking into consideration the value of these plant and machineries along with the value of the land for the purpose of the Act.” (Emphasis supplied)