2013 (3) TMI 681 - HC - Indian Laws

Registration of transfer of immovable property - Refund of excess stamp duty and registration charges on Windmills - Inclusion of value of Windmills into the value of Property - Windmills are movable or immovable property? HELD THAT - That windmills are movable property, which stood sold to the petitioners prior to registration of sale deed. Mulla in his book on Transfer of Property Act, 1966 (Sixth Edition) quoted with approval a decision of the Calcutta High Court in Janchand v.Kishore (AIR 1960 Calcutta 301) held that the machinery was not attached for the mere beneficial enjoyment of either the soil or the concrete; it was actually a case of the structure being built around the machinery to protect it . Therefore,Windmills were also installed on the cemented platform on the land for running of windmills and not for the benefit of the land. Hence,No stamp duty was payable on the value of windmills and the petitioner is entitled to refund of stamp duty and additional registration charges.

Issues Involved:
1. Whether the windmills should be considered movable or immovable property.
2. Whether the petitioner is entitled to a refund of the excess stamp duty and registration charges paid under protest.
3. Whether the respondents' actions in demanding stamp duty for the windmills were justified.
4. Whether the respondents followed the principles of natural justice in rejecting the petitioner's request for a refund.
5. Whether the circular issued by the first respondent regarding windmills being movable property was binding.

Issue-wise Detailed Analysis:

1. Whether the windmills should be considered movable or immovable property:
The core issue revolves around the classification of windmills as either movable or immovable property. The petitioner argued that the windmills were movable property, having been sold and possession transferred before the land sale deed's registration. This stance was supported by a circular dated 19.11.2008 from the first respondent, which classified windmills as movable property. The respondents, however, contended that the windmills, being embedded in the earth, should be considered immovable property under Section 2(6) of the Registration Act, 1908. The court, citing previous judgments and the circular, concluded that the windmills were indeed movable property, installed on cemented platforms for their operation rather than for the land's benefit.

2. Whether the petitioner is entitled to a refund of the excess stamp duty and registration charges paid under protest:
The petitioner sought a refund of the excess stamp duty and registration charges paid under protest, arguing that the stamp duty should only apply to the land's value, not the windmills. The court agreed with the petitioner, noting that the sale of the windmills was completed before the land sale deed's registration. The court emphasized that the windmills were sold as movable property, and thus, no stamp duty was payable on them. Consequently, the petitioner was entitled to a refund of the excess stamp duty and registration charges.

3. Whether the respondents' actions in demanding stamp duty for the windmills were justified:
The respondents demanded stamp duty on the windmills, treating them as part of the immovable property conveyed in the sale deed. The court found this action unjustified, as the windmills were sold and possession transferred before the land sale deed's registration. The court highlighted that the mention of windmills in the sale deed was merely a description of the land and did not imply their inclusion in the sale of immovable property. The court ruled that the respondents' demand for stamp duty on the windmills was erroneous.

4. Whether the respondents followed the principles of natural justice in rejecting the petitioner's request for a refund:
The petitioner argued that the respondents' rejection of the refund request violated the principles of natural justice, as no opportunity for a hearing was provided. The respondents countered that the sale deed was self-explanatory, negating the need for a hearing. The court sided with the petitioner, stating that the respondents failed to consider the circular and the facts proving the windmills' sale as movable property. The court emphasized the importance of adhering to natural justice principles and found the respondents' actions lacking in this regard.

5. Whether the circular issued by the first respondent regarding windmills being movable property was binding:
The petitioner relied on a circular issued by the first respondent, which classified windmills as movable property. The court affirmed the circular's binding nature, criticizing the respondents for ignoring it. The court reiterated that the circular clearly stipulated windmills as movable property, and the respondents had no justification for refusing the refund of stamp duty by disregarding their own circular.

Conclusion:
The court allowed the writ petitions, quashing the impugned orders and directing the respondents to refund the excess stamp duty and registration charges paid by the petitioners. The judgment underscored that windmills are movable property and that the petitioners were entitled to a refund as the respondents' actions were unjustified and contrary to the principles of natural justice. The court also closed the connected miscellaneous petitions without costs.

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