THE SUB REGISTRAR, AMUDALAVALASA & ANR. versus M/S DANKUNI STEELS LTD. & ORS. on 26 April 2023

[2023] 8 S.C.R.

ATHE SUB REGISTRAR, AMUDALAVALASA & ANR.

v.

M/S DANKUNI STEELS LTD. & ORS.

(Civil Appeal No(s). 3134-3135 of 2023)

B

APRIL 26, 2023

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Stamp Act, 1899 – s.27– Andhra Pradesh Act (8 of 1988) –Proviso to s.27 added – Andhra Pradesh (Amendment) Act, 1971 –Cs.47A – Transfer of Property Act, 1882 – s.8 – ‘immovable property’–Exigibility of the plant and machinery to stamp duty under the Act –Second respondent auction purchased the property, at a bid ofRs.8.35 crores, consisting of land, building, civil works, plant &machinery and other assets – On the basis of direction given inC.A. No. 1203 of 2004 at the instance of the second respondent,Dthe Official Liquidator was accorded permission to execute the saledeed in favour of the first respondent (nominee of the secondrespondent) – Sale deed executed in favour of the first respondent– Respondents 1 & 2 applied for registration of the sale deed onthe basis that the land and building had to be registered with theEvalue thereof being shown as Rs.1,01,05,000/ – First appellantinformed the first respondent that due to some reasons registrationwas kept pending – Respondents 1 and 2 challenged the saidcommunication – Second appellant-District Registrar directed thefirst respondent and the Official Liquidator to deposit stamp dutybesides penalty – Writ petition filed by Respondents 1 & 2, SingleFJudge of High Court remitted the matter to the second appellant –Division Bench inter alia directed the Sub-Registrar to consider therespondents’ request for registration of the lands and buildingspurchased by them and determine its value on the date ofpresentation of the document for registration, collect the stamp dutyGand registration fees thereupon – Held: From a reading of the RecitalClause in conjunction with s.8, Transfer of Property Act, theintention of the parties become self-evident that the vendor intendedto convey, all things, which inter alia stood attached to the earth –Mere fact that there is no express reference to plant and machineryin the Recital Clause cannot mean that the interest in the plant andH

machinery which stood attached to the land, which was scheduled,was not conveyed to the first respondent – Sum of Rs.8.35 croreswas unambiguously indicated as the total sale consideration forthe asset sold to the first respondent, comprising of land, building,civil works, plant and machinery and current assets, etc – However,first respondent took out the value of the land, building and civilworks and shown it at Rs.10105000/-, indicating only the saidamount as value – This was to tide over the liability to stamp dutyfor what was actually, in law, conveyed to the first respondent –Effort of respondents 1 & 2 was to avoid payment of the stamp dutyas due in law – Division Bench erred in not noticing the true purportof the sale deed in conjunction with s.8, 1882 Act and definition ofthe word ‘immovable property – The sale deed operated to conveythe rights over the plant and machinery as well, which was comprisedin the land scheduled in the sale deed – In the nature of thetransaction, and what was actually sold by the Official Liquidator,plant and machinery, such as would answer the description ofimmovable property, must also be found part of the property for thepurpose of the stamp duty and other charges as per law – Firstrespondent is liable in law as vendee to pay the stamp duty –Impugned judgment set aside – Judgment of the Single Judgerestored subject to the modification that the direction to the secondappellant to give the benefit of GoMS dtd.07.02.2001 is set aside –Second appellant will ascertain the value of plant and machinery –It will also go into the question, whether the first respondent wouldbe entitled to the benefit of the exemption of stamp duty, etc., asclaimed and make available the exemption, if entitled in law –Registration Act, 1908 – General Clauses Act, 1897.

Conclusion

Andhra Pradesh Amending Act (8 of 1988) – Proviso addedto s.27, Stamp Act, 1899; s.47A – Held: Proviso to s.27 does empowerthe Officer to inspect the property, make local inquiries in the facts,call for connected records, examine them and satisfy that theprovisions of s.27 are complied with – s.27 provides that theconsideration, if any,and the other facts and circumstances,affecting the chargeability of any instrument or the amount of duty,must be fully and correctly set forth – Equally, s.47A, empowers theRegistering Officer to deal with undervalued instruments.

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ATransfer of Property Act, 1882 – s.8 – Held: s.8 declares thatin the absence of an express or implied indication, a transfer ofproperty passes to the transferee all the interests, which the transferorwas capable of passing in the property and in the legal incidentsthereof – Such incidents includes, inter alia, where the property island, all things attached to the earth – When the property isBmachinery attached to the earth, the movable parts thereof also arecomprehended in the transfer.

Disposing of the appeals, the Court

HELD: 1.1 The second respondent was, undoubtedly, theCauction purchaser. The auction sale related to the assets of thecompany, which included the land, the building, the plant andmachinery and other assets. The vendee, who under the saledeed is the first respondent, being the nominee of the secondrespondent. It has 49 been recited in Clause (H) that the vendeehas paid the full consideration. More significantly, it is statedDtherein also that as per the terms of the sale properties havebeen sold by the vendor to the vendee on ‘as is where is whateverthere is basis’. The total sale consideration, it is clear again fromthe sale deed itself, is Rs.8.35 crores, for the land, building, civilworks, plant and machinery and current assets, etc. However,Ewhat had been done is an amount of Rs.10105000/- has been takenas the value of the land, building and civil works based on theoffer received by the Liquidator, when the assets were put up forsale individually. It is further stated that the purchaser has agreedto pay the stamp duty/registration fees/transfer fees as per theFvalue derived by the Sub-Registrar. This last statement istraceable to order dated 15.06.2004 passed in civil Appeal 1202of 2004 which we have referred to in paragraph 6. A copy of thesaid order is enclosed with the sale deed. It is further stated thatthe 46 acres and a few cents was ‘now’ registered in favour of thevendee. In the Recital Clause, thereafter, what has beenGpurported to be done is that it is shown that the vendors havesold, transferred, conveyed, alienated, assigned to the vendeeall the scheduled property. The matter does not end there. Theaforesaid recital is followed up with the words ‘along with all therights, easements, interests, etc., the rights which ordinarilyHpassed on through such sale on and over the said land in favour of the vendee and to hold and enjoy the same as absolute owner.In the Schedule, no doubt, what is mentioned is 46 acres and alittle over 71 cents. We have already referred to the conduct ofthe first and second respondents, which commended itself to thelearned Single Judge as conveying the impression that they wantedto repair and maintain the plant and machinery. Furthermore, theyhave also sought the benefit of the exemption provided underGoMS 103 dated 07.02.2001, which Government Order purportedto provide for certain concessions in the form of exemption fromstamp duty and registration fee in favour of industrial units. Weare in agreement with the view taken by the learned Single Judgethat the unit was purported to be operated as a going concernand apparently the first respondent did not intend to dispose ofthe plant and machinery as scrap. Bearing in mind this context,we proceed to examine the exigibility of the plant and machineryto stamp duty under the Act. [Para 34][1133-C-H; 1134-A-C]

1.2 It is, no doubt, true that what is purported to beconveyed, going by the Recital Clause, is, at first blush, the landas comprised in the Schedule, viz., 46 and odd acres. What isconveyed is immovable property. Immovable property has beendefined in the General Clauses Act, 1897 as ‘including land,benefits to arrive out of land and things attached to the earth orpermanently fastened to anything attached to the earth’. When itcomes to the definition of ‘immovable property’ in the Transferof Property Act, it has been defined as ‘not including standingtimber, growing crops or grass’. In the Registration Act, 1908,immovable property includes, apart from land and buildings, thingsattached to the earth or permanently fastened to anything whichis attached to the earth but not including standing timber, growingcrops or grass. Most importantly, we cannot also be obliviousthat Section 8 of the Transfer of Property Act declares that in theabsence of an express or implied indication, a transfer of propertypasses to the transferee all the interests, which the transferorwas capable of passing in the property and in the legal incidentsthereof. Such incidents includes, inter alia, where the property island, all things attached to the earth. When the property ismachinery attached to the earth, the movable parts thereof also AB

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Aare comprehended in the transfer. In the Recital Clause, a properreading of the same would tend to indicate that what is conveyedis rights over the scheduled property, which, no doubt, is theland, as described in the Schedule but it includes all the rights,easements, interests, etc., i.e., the rights which ordinarily passedon such sale over the land. It is from a reading the said recital inBconjunction with Section 8 of the Transfer of Property Act thatthe intention of the parties become self-evident that the vendorintended to convey, all things, which inter alia stood attached tothe earth. The mere fact that there is no express reference toplant and machinery in the Recital Clause cannot mean that theCinterest in the plant and machinery which stood attached to theland, which was scheduled, was not conveyed to the firstrespondent. The value of, what was actually purchased, has beenexpressly set out in the Preamble to the sale deed. The valuehas been reflected as Rs.8.35 crores. The sum of Rs.8.35 croreshad been, in unambiguous terms, indicated as the total saleDconsideration for the asset sold to the first respondent,comprising of land, building, civil works, plant and machinery andcurrent assets, etc. The first respondent has taken out the valueof the land, building and civil works, and shown it at Rs.10105000/-, and then indicating only the said amount as value. This isEapparently to tide over the liability to stamp duty for what wasactually, in law, conveyed to the first respondent. The DivisionBench appears to have proceeded on the basis that the firstappellant could not force Respondents 1 and 2 to pay stamp dutyon the value of the plant and machinery, when they do not seekits registration. As respondents 1 and 2 had given up their claimFfor exemption based on the Government Order, the DivisionBench accepted the same. The Division Bench overlooked thenature of the transaction, the effect of the auction sale, theproperty sold and their value, and the fact that the Company Judgehad by order dated 15.06.2004 left it open to the authority toGdetermine the liability. The Division Bench did not consider thepreambular part. It also failed to bear in mind the power availablewith the authorities. [Paras 36, 37][1134-F-H; 1134-A-G]1.3 The effort of respondents 1 and 2 was to avoid paymentof the stamp duty as due in law. The Division Bench erred in notH

noticing the true purport of the sale deed in conjunction withSection 8 of the Transfer of Property Act and the definition of theword ‘immovable property’. Viewed in the context of DuncansIndustries Limited and Member, Board of Revenue, as also the otherattendant facts, including the contents of the Preambular portion,as also the conduct of the Respondents 1 and 2, it would be clearthat the sale deed operated to convey the rights over the plantand machinery as well, which was comprised in the land scheduledin the sale deed. As far as the plant and machinery is concerned,it must, however, be only such plant and machinery, which waspermanently embedded to the earth and answering the descriptionof the immovable property as defined. It would appear that suchan inquiry was not done to ascertain the same by the appellants.[Para 38][1136-A-C]

Duncans Industries Limited v. State of Uttar Pradeshand others(2000) 1 SCC 633;Member, Board ofRevenue v. Arthur Paul Benthall AIR 1956 SC 35 :[1955] SCR 842 – referred to.

1.4 The proviso to Section 27 of the Act, added by theAndhra Pradesh Amending Act (8 of 1988), does empower theOfficer to inspect the property, make local inquiries in the facts,call for connected records, examine them and satisfy that theprovisions of Section 27 are complied with. Section 27,undoubtedly, provides that the consideration, if any, and the otherfacts and circumstances, affecting the chargeability of anyinstrument or the amount of duty, must be fully and correctly setforth. Equally, Section 47A of the Andhra Pradesh Amending Act(8 of 1988), empowers the Registering Officer to deal withundervalued instruments. [Para 39][1136-D-E]

1.5 In the nature of the transaction, and what was actuallysold by the Official Liquidator, plant and machinery, such as wouldanswer the description of immovable property, must also be foundpart of the property for the purpose of the stamp duty and othercharges as per law. [Para 40][1136-H; 1137-A]

1.6 There are two aspects, which remain. Firstly, on accountof the default of the appellants to effect service on the second AB

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1104SUPREME COURT REPORTS

Arespondent, the SLP stood dismissed. We, however, notice that,at the request of the second respondent, the Company Courtordered that the sale deed be executed in favour of its nominee,viz., the first respondent. The first respondent, accordingly,became the vendee under the sale deed. It is the first respondent,which is liable in law as vendee to pay the stamp duty. Therefore,Bwe would think that the absence of the second respondent, maynot affect passing of an order as against the first respondent,which, as the vendee, is the entity liable to bear the liabilitytowards stamp duty. Another aspect is that the matter may haveto go back to consider the actual plant and machinery as wouldCanswer the description of immovable property as correctlypointed out by the learned Amicus. The passage of time may haveits bearing. But it may have to be carried out. As noticed by us,the appellants had also appealed against the Judgment of thelearned Single Judge. The Single Judge, it must be remembered,while upholding the Order of the second appellant (DistrictDRegistrar) in regard to the value of the plant and machinery, haddirected deducting the value of the current assets and also directedmaking available benefits of GoMS 103 dated 07.02.2001.Apparently, Respondents 1 and 2 in the Appeal gave up theirclaim to the exemption on the basis that they succeeded in havingEthe sale deed registered without having to include the value ofplant and machinery before the Division Bench. The stand of theappellants would appear to be that GoMS 103 dated 07.02.2001applied to new industrial units other than those listed as ineligibleunder GoMS 9 dated 05.01.2001. It appears to be their case thatthe subject industry is a mini steel industry and mini steel industryFplants were not eligible and the item appears as Item 56 inAnnexure 1 to GoMS 9 dated 05.01.2001. Since, the respondentsgave up their claim for exemption, the case of the appellants wasnot gone into by the Division Bench. The second appellant canlook into this aspect as well. [Paras 41, 42][1137-B-G]G1.7 The Appeal filed against Writ Appeal No. 1873 of 2005is allowed. The Appeal filed against the Judgment in Writ AppealNo. 2457 of 2005 is partly allowed. The impugned Judgment isset aside and the Judgment of the learned Single Judge is restoredsubject to the modification that the direction to the second H

A

appellant to give the benefit of GoMS 103 dated 07.02.2001 isset aside. The second appellant will ascertain the value of plantand machinery on the basis of it answering the description of theimmovable property as understood in law. The second appellantwill also go into the question, whether the first respondent wouldbe entitled to the benefit of the exemption of stamp duty, etc., asclaimed while taking a decision and make available the exemption,if entitled in law. The second respondent cannot be made liableunder this judgment. [Para 43][1137-H; 1138-A-C]

B

Himalaya Space House Company Limited v. ChiefControlling Revenue Authority(1972) 1 SCC 726 :[1972] 3 SCR 332;Chief Controlling Revenue Authority C

v. Coastal Gujarat Power Ltd. and others(2015) 10SCC 700 : [2015] 9 SCR 36 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3134-3135 of 2023.

E

From the Judgment and Order dated 18.07.2017 of the High Courtof Judicature at Hyderabad for the State of Telangana and the State ofAndhra Pradesh in WA Nos.1873 and 2457 of 2005.

Mahfooz A. Nazki, Polanki Gowtham, Shaik Mohamad Haneef,T. Vijaya Bhaskar Reddy, K. V. Girish Chowdary, Rajeswari Mukherjee,G. N. Reddy, Advs. for the Appellants.

F

Gopal Jha, Adv. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

G

1. Delay condoned. Leave granted.

2. By order dated 13.06.2002, the High Court of Andhra Pradeshordered M/s. Midwest Iron & Steel company Ltd. (which is RespondentNo.3 in the appeals) to be wound up. Though pursuant to order dated H

A22.09.2003, efforts were made to sell the property of respondent no.3 inthree lots, finally, based on an auction for a consolidated sale, the secondrespondent herein, namely, M/s. SMC Marketing Private Ltd. who figuredas the highest bidder, became the successful auction purchaser. It bidfor the property which consisted of land, building, civil works, plant &machinery and current assets, etc. The amount for which the secondBrespondent was declared the highest bidder was Rs.8.35 crores. On thebasis of a direction given in C.A. No. 1203 of 2004 at the instance of thesecond respondent, the Official Liquidator was accorded permission bythe learned Company Judge to execute the sale deed in favour of thefirst respondent in the appeals, viz, M/s. Dankuni Steel Ltd. A sale deedCcame to be executed by the Official Liquidator in favour of the firstrespondent dated 5[th] August, 2004. In the sale deed in the preambularportion we may notice the following statements:

“D. WHEREAS the Official Liquidator has put the properties ofthe Company for sale in terms of orders of the Hon’ble HighDCourt and whereas the Hon’ble High Court of Andhra Pradesh,Hyderabad by an order dated 04-02-2004 made in C.A.No.736/2003 in R.C.C.No. 10/2001 (copy enclosed) was pleased toconfirm the sale of the assets pf the Company such as land, building,plant and machinery and other assets in favour of Messrs SMCMarketing Pvt. Ltd., having its office at Room No.617, 6th floor,EP 41, Princep Street, Kolkatta - 700 072, represented by itsauthorized representative Sri Amar Chand. Choudhary for a totalsale 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.F1202/2004 was pleased to direct the Official Liquidator to executenecessary conveyance deeds for the land sold in auction in favourof the vendee here in who is the nominee of the said highestbidder Messrs SMC Marketing Pvt. Ltd. A copy of which isenclosed herewith.”G3. Clause H of the preamble, reads as follows:- “H. WHEREAS the Vendee has paid the full consideration to thevendor within the time stipulated by the Hon’ble High Court ofAndhra Pradesh, Hyderabad and as per the terms and conditionsof the sale, properties have been sold by the Vendor to the VendeeH

on ‘as is where is whatever there is basis’. Vendor hereby admitsand acknowledges that he has received the full consideration fromthe Vendee and there is no balance payable by him. Further theVendor has already given possession of the Schedule property tothe Yendee under due acknowledgement.The Vendor herebyconveys, transfers and assigns all the rights, title interest togetherwith all the liberties, advantages, held and enjoyed by MessrsMidwest Iron & Steel Co. Ltd., to theVendee, who shall hereinafterenjoy the same with full and absolute rights without any disputeorobjection from any source as owner.

AND WHEREAS the total sale consideration is Rs.8.35 croresfor 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 officialliquidator when the assets were put for sale individually and thepurchaser has agreed to pay the stamp duty / registration fees /transfer feesas per the-value derived by the sub registrar.

WHEREAS the land to an extent of Acres 46.7167 cents situatedin Dusi Village as per detailsgiven below is now registered in favourof the VENDEE through this document, hereinafterreferred to asthe ‘SCHEDULED PROPERTY’ for brevity, which is fullydescribed in theschedule of property and clearly delineated in redcolour in the plan annexedhereto.

4. Next, the recital clause (1) reads as follows:

“NOW THE VENDOR HEREBY ASSURES ANDCOVENANTS THE VENDEE AS UNDER:

In consideration of the said amount paid by the Vendee, the Vendorshere.by scll, transfer, convey, alienate, assign unto and to the useof the Vendee absolutely and forever all that the scheduled propertyalong with all the rights, easements, interests etc., the rights whichordinarily pass on through such sale on and over the said land infavour of the Vendee to hold and to enjoy the same as absoluteowner.”

5. Next, we must notice the schedule of the property which interalia reads as follows:

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A

A“All that piece and parcel of the property admeasuring acres of46.7167 cents situated at Dusi Village, Srikakulam District, withinthe limits of Sub-Registrar, Amudalavalasa, belonging to M/s.Midwest Iron & Steel Co. Ltd. in the above R.S. Numbers soldby the Vendor to Vendee is bounded by…” The boundaries arehereafter set out.B

6. Since the sale deed in favour of the nominee, namely, the firstrespondent came to be executed pursuant to order of the Company Judgedated 15.06.2004 made in C.A. No.1202 of 2004 as stated in Clause E(supra), we may notice the prayers and relevant part of the order. Theyread as under:

C

“Application under Section of the Companies Act, 1956 R/W Rule9 of the Companies (Court) Rule, 1959, praying that this HighCourt may be pleased to direct the Official Liquidator to executethe sale deed in respect of the land and building and civil worksbelonging to the company in liquidation fora consideration of Rs.D40,13,000/- in favour of the Applicant’s nominees-M/s. Dankun·1Steels Lim.1ted.

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

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

This Application coming on for orders upon readingthe Judge’sSummons and the affidavit dated: 23-4-2004 and filed by Mr. AmarChand Choudary, authorized Representative of the Application insupport 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”

G

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

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

The application is, accordingly, ordered.”

(emphasis supplied)

7. It is thereafter that as already noticed that the sale deed cameto be executed on 05.08.2004. Respondents 1 and 2, it would appearclaimed benefit of GOMS No.103 dated 07.02.2001. The said GOMSread as under inter alia:

“GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

Indian Stamp Act, 1899 - 50°/o Exemption frompayment of StampDuty and Registration Fee on theinstruments of leases, lease-cum-sales and salesexecuted in favour of Industrial Units in theState forthe purposes of selling up or expansion ordevelopment of AB

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Industries - Orders - Issued.

REVENUE (REGISTRATION.II) DEPARTMENT

G.0.Ms.No.103Dated :07 .02.2001Read the following:-

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 Registrationand Stamps Letter No.Sl/10783/2000, dt.28.9.2000 and evenNo.,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 inG.O.Ms.No.9, Industries &Commerce Department, dt.5.1.2001,enunciating aNew Industrial Policy for 2000-2005. Amongvariousother decisions, exemption of 50% Stamp Duty,RegistrationFee and Transfer Duty was allowed onlands meant for Industrialuse. Exemption of StampDuty and Registration Fee ‘for loanagreements, creditdeeds, mortgages and hypothecation deedsexecutedby the Industries in favour of banks or financialinstitutionshas also been included in the Policy. NewIndustrial Units etherthan listed as ‘ineligible’ in theGovernment order cited third above,would beeligible for the concession in stamp duty andregistrationfees as notified below.

Basing on the above decision, the followingNotifications will bepublished in the next issue of theAndhra Pradesh Gazette:- NOTIFICATION – I

In exercise of the powers conferred by clause(a) of sub-section -(1) of section 9 of the IndianStamp Act, 1899 (Central Act II of1899), theGovernment of Andhra Pradesh hereby reduces thestampduty by 50 percent on the instruments ofleases, lease-cum-salesand sales executed in favour of Industrial units and also remits

Stamp Duty in fullon laan agreements, credit deeds, mortgagesandhypothecation deeds executed by such Industrialunits in favourof banks or financial institutions forthe purposes of setting up orexpansion ordevelopment of Industries.

NOTIFICATION – II

In exercise of the pówers conferred under Section 78 of theRegistration Act, 1908 (Central ActXVI of 1908), the Governorof Andhra Pradesh herebymakes the following amendment to the“Table ofFees” - issued in G.O. MS. N0.1637,RevenueDepartment, dated the 3rd September, 1958 andpublishedat pages 2250 to 2253 of Part I of theAndhraPradeshGazette,Dated:ll.09.1993 issubsequently amended from time totime.

AMENDMENT

In the said “Table of Fees” in article l(a), afterclause “K(XCXXIV)”, the following clause shall beadded, namely :- “K (XCXXV): The Registration Fee leviable underthis Article onthe instructions of leases, leasecumsalesand sales executed infavour of industrialunits shall be reduced by 50 percent andnoregistration fee shall be leviable on loan agreements,credit deeds,mortgages and hypothecation deedsexecuted by such industrialunits in favour of banksor financial institutions for the purposes ofsetting upor expansion or development of industries”.

(BY ORDER AND IN THE NAME OF THEGOVERNOR OF ANDHRA PRADESH)

K.C.MISRA PRINCIPAL

SECRETARY TO GOVERNMENT”

8. It would appear that the respondents 1 and 2 applied forregistration of the sale deed according to the appellants on the basis thatthe land and building had to be registered with the value thereof beingshown as Rs.1,01,05,000/-. The Sub-Registrar, namely, the first appellantby communication dated 12.08.2004 informed the first respondent thatthe registration was kept pending for the following reasons:

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

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

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

9. The respondents 1 and 2 feeling aggrieved filed Writ PetitionNo.16104 of 2001 challenging the said communication. The DistrictCRegistrar, Srikakulam, [the second appellant before us] directed the firstrespondent and the Official Liquidator to deposit Rs.8629025/- as stampduty besides penalty of Rs.1000/. It is challenging the said communicationthat Respondents 1 and 2 filed Writ Petition No. 19900 of 2004. Both theWrit Petitions came to be heard together and disposed by a learnedDSingle Judge by the Judgment dated 12.07.2005. The learned Single Judgefound inter alia as follows:

“5. Though the Company Court initially directed · auction of theassets of the Company in three lots, having felt that the bidsreceived for the lots are inadequate, the learned Judge directedEsale of all the three lots i.e. (i) Land, Buildings and Civil Works;(ii) Plant and Machinery; and cJii) Current Assets and SwarajMazda vehicle, as one lot only. Therefore, the fact that theCompany Court originally directed sale of the assets of theCompany in three lots has no relevance for deciding these petitionsFbecause second petitioner, admitted1y, purchased the assets ofthe company as one lot only, in the open auction held by theCompany Court, but not as three different lots .

6. It is no doubt true, as per the proviso to Sectiön 47A(6) of the,Stamp Act, instruments executed by or on behalf .of the CentralGGovernment or the State Government or any authority or bodyincorporated by or under any law for the time being in force andwholly owned by Central/State Government, the market value ofthe property shall be the value shown in such instrument. Thisprovision, far from helping the petitioners, would go against theircontention that sale deed can be executed for Lot l only, inasmuch H

as assets of the company were advertised for sale in three lots,because all the three assets of the company were purchased bythe 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 theexact value of the Land, Building and Civil works. The file producedby the official liquidator shows that there was correspondencebetween 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 notseem to have acted fairly while executing the sale deed in question,and seems to have made an attempt to favour the petitioners bysuppressing certain fact: and incorporating the undermentionedhighlighted portion in page 3 of the sale deed in question reading - “AND WHEREAS the total sale consideration is Rs.8.35 croresfor the entire assets of the company comprising of land, building,Civil works, plant & machinery and current assets, etc., An amountof Rs.1,01,05,000/- is taken as the value of the land, building andcivil works basing on the offer received by the official liquidatorwhen the assets were put for sale individually and the purchaserhas agreed to pay the stamp duty/registration fees/transfer feesas per the value derived by the sub registrar.” obviously thatstatement, mentioning the value of the building etc. asRs.1,01,05,000/- is made on the basis of the offers received byhim (official liquidator) on 04-12-2003 whereat M/s.Bhagya NagarMetals Ltd., offered Rs”101.05 lakhs for Lot No.1 and Rs.301.00lakhs for Lot No.2, and M/s.MahavirGhantakaram Enterprisesoffered Rs.29.50 lakhs for Lot No.3. So, it is clear that the totalvalue of the offers for the three lotreceived by the official liquidator,on 04-12-2003, was Rs.431.55 lakhs. But, on 30-12-2003, M/s.ConcastIspat Ltd., which (as per the letter dated 13-08-2004 ofthe 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) seemsto be a group company of the petitioners, gave a consolidatedoffer for Rs.576.00 lakhs for the three lots put together, and thebid ultimately was knocked down in favour of the second petitionerfor Rs.835.00 lakhs, for all the three lots put together, in the courtauction held on 04-02-2004. Thus, official liquidator knows, and if AB

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he were to say that he does not know, should be imputed withknowledge that this offer dated 04-12-2003 for the Land, Buildingsand Civil works for Rs.101.05 lakhs does not truly and correctlyrepresent the value of the Land, Buildings and Civil works. Infact, in his letter bearing No.OL/AP/RCC.10/ 2001/AR/2004 dated04-02-2004 addressed to the second petitioner, official liquidatorstated:

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“With reference to the open auction held on4-2-2004 before theHon’ble High Court ofAndhra Pradesh, Hyderabad in the matterofsale of entire assets of the subject company I am to inform youthat the Hon’ble High Court vide their order dt.4-2-2004 made inC.A.No. 736/2003 accepted your offer for the purchase of entireassets of the company as one Lot i.e., Land & Buildings & CivilWorks, 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 monthsfrom the date of confirmation i.e., 4-2-2004 for making balancesale consideration of Rs.6.28Crores as follows:

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

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10. The Court further notes as follows:

“8. In R.C.C.No.10/2001/ AR/2004 dated 05-8-2004sent by him,in reply to the memo impugned inW.P.No.16104 of 2004 issuedFby the thirdrespondent, official liquidator stated asfollows.”Inpursuance of the orders of the Hon’bleHigh Court ofAndhra Pradesh, Hyderabad in thereference cited, I have executeda sale deeddated 05-08-2004, in favour of M/s.DankuniSteelsLimited, Kolkatta transferring the assetsof the company M/s.Midwest Iron and Steel Limited, Dusi Village, Srikakulam DistrictGwhichis in liquidation for Rs.1,01,05,000/- and signedall theconnected statements of the saiddocument.

11. The learned single Judge thereafter referred to order passedin C.A. No.1202 of 2004. Thereafter, the single Judge found that therewould be no doubt that respondents 1 and 2 M/s. Concast Ispat Limited H

were group companies. Another aspect noted by the learned Single Judgewas the conduct of the second respondent filing Civil Appeal No. 823 of2004 seeking permission of the Court to get the plant and machineryrepaired and overhauled on the basis that it intended to revive the unitand run it. An Order, it was noted, was passed thereon on 06.04.2004allowing the second respondent to carry out repair and overhaul operationsinter alia subject to certain conditions. Next, the learned Single Judgenoted the letter dated 13.08.2004 by the General Manager of the DistrictIndustries Centre to the second appellant. It reads:

“the Commissioner of Industries, Andhra Pradesh, Hyderabadinformed that M/s.Concast Ferro Inc, Dusi Village, AmadalavalasaMandal, Srikakulam District who have obtained IEM No. 2284/SIA/IMO/2004 dt.25.06.2004 for establishing unit for the line ofactivity (1) Pig Iron (2) Granualated slag and (3) Coke Fines byacquiring the sick unit through official liquidator,High Court ofAndhra Pradesh as a new Entrepreneur is entitled for availing50% 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 IndustrialUnit in favour of banks or financial institutionson lands meant forindustrial units after fulfillingthe formalities in terms ofG.O.Ms.No.103Revenue (Registration) Department dated07.02.2001.”

12. The learned Single Judge found that Respondents 1 and 2were using the plant and machinery for their business and had no intentionto remove and sell them as scrap or otherwise. It is further found that ifrespondents 1 and 2 were to contend that M/s. Concast Ferro Alloyswhich was obviously a mistake for M/s. ConcastIspat had no concernwith the respondents 1 and 2, they would not have produced the letterdated 13.08.2004 of the General Manager. After referring to notificationGOMS, No. 103 dated 07.02.2001 which we have referred to hereinabove,the learned Single Judge found that the benefit of the said G.O. could beclaimed only by an industrial unit and since respondents were claimingbenefit under the G.O. they intended to use the assets of the companyand had no intention to remove the plant and machinery. Thereafter, theCourt found as follows:

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A“From a combined reading of Section 3 of Transfer ofProperty Act, Section 2(6) of RegistrationAct and Section 3(26)of General Clauses Act, it isclear that plant and machinery of thecompany,purchased by second petitioner in court auction, alsoareimmovable properties forming part of the landand buildings in oron which they are located. In myconsidered opinion, petitionersBclaiming benefit underG.O.Ms.No.103 dated 07.02.2001, whilecontendingthat the sale deed in question is for Land, BuildingsandCivil works only, but not plant and machinery,would be incongruous,because the intention of theGovernment in passing the above G.O.,obviously, isto give benefit to ‘industrial units’. It does not enableanCowner of an ‘industrial unit’ purchasing vacantland, claiming benefitof the G.O., just to sell it awayas plots and make money. Theintention of thegovernment obviously is that ‘industrial unit’shouldbe established in the land and that the land shoulditself beused, for running an ‘industrial unit’ by thepurchaser. So, it is clearthat the above extractedG.O. is meant to encourage establishmentDandrunning of industrial units only. Since petitioners areclaimingbenefit of the above extracted G.O. andsince they also obtainedpermission from the Court toclean and over haul the machinery, itis clear that thesale deed in question covers not only Land,Buildingsand Civil works but plant and machinery also.”E13. The Court relied on Duncans Industries Limited v. State ofUttar Pradesh and others1 and found that since the property coveredby the sale deed covered not only the land, buildings and civil works, butplant and machinery also, the value of the plant and machinery also hadto be considered for payment of stamp duty. The learned Single Judgefound that the value of the current assets had to be reduced. Still furtherFhe found that since the first respondent was an industry and wanted torun the unit as an industry, the benefit of GOMS 103 Revenue(Registration) Department dated 07.02.2001 could be extended to it.Writ Petition No. 10101 of 2004 came to be dismissed with costs. WritPetition No. 19900 of 2004 was allowed in part and the matter wasGremitted to the second appellant to determine the current assets and todeduct their value from Rs.8.35 crores and to reckon the remainingvalue as the value of the land, buildings, civil works, plant and machineryand collect stamp duty and penalty, if any, by extending the benefit ofGOMS 103 dated 07.02.2001.H1 (2000) 1 SCC 633

14. This led to the two writ appeals, viz., Writ Appeal No. 1873 of2005 and Writ Appeal No. 2457 of 2005. One of the appeals was filedby the Respondents 1 and 2, viz., Writ Appeal No. 1873 whereas WritAppeal No.2457 of 2005 was filed by the appellants. Both the Appealswere directed against the Judgment in Writ Petition No.19900 of 2004.The short reasoning which appealed to the Division Bench and the reliefgranted was as follows:

“When we asked the learned Government Pleader as to how thepetitioner could be forced to register even the plant and machinerywhen they only seek registration of the land and buildings, LearnedGovernment Pleader would submit that the value of the land andbuildings 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 ofland and buildings, and would run the risk of the plant and machinerynot being registered, the Sub-Registrar cann0t force them to paystamp duty on the value of plant and machinery when they do notseek its registration. The question whether the value of these landsand buildings, on the date of presentation of the document, wasRs.1,01,05,000/- or not is a matter which the Sub-Registrar isrequired to consider; and it is on the value of the land and buildings,as determined by. him, that stamp duty and registration chargeswould be required to be paid subject, of course, to the petitioner’sright to question the order of the Sub-Registrar before the appellantauthority under the Act. As the petitioner has given up their claimfor 50% exemption and Sri S.Ravi, learned Senior Counsel, wouldfairly state that, if a part of the land sought to be registered isfound to be Government land it. may be excluded from registrationsubject to the petitioner’s right to avail their legal remedies, againstany such action, being left open, we consider it appropriate todispose of both the Writ Appeals directing the Sub-Registrar toconsider the petitioner’s request for registration of the lands andbuildings of the company under liquidation, purchased by them inthe auction conducted by the Official Liquidator; determine itsvalue 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 transferof the lands and buildings, of the company under liquidation, to thepetitioner herein, in accordance with law. The entire exercise shall AB

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Abe completed at the earliest preferably within three 1 months fromthe date of receipt of a copy of this order. Both the appeals aredisposed of accordingly. There shall be no order as to costs.Miscellaneous petitions, if any, pending shall stand closed.

SD/- K.GANGADHAR RAO

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DEPUTY REGISTRAR//TRUE COPY//

SECTION OFFICER”

C15. Notice was served on respondent no.1 but there is noappearance. Shri Mahfooz A. Nazki, learned Counsel appeared on behalfof the appellants. We may notice that despite time granted to theappellants to effect service on respondent no.2, in view of their failure toeffect service, in terms of order dated 04.03.2020, the SLP was found tostand dismissed as against Respondent No.2. This is discernible fromDorder dated 19.06.2020. Shri Gopal Jha, learned Counsel appeared onbehalf of the third respondent’s company (in liquidation) represented bythe Official Liquidator. In view of the fact that there was no appearancefor the first respondent, by order dated 20.10.2021, we appointed Shri S.Niranjan Reddy, learned Senior Counsel as Amicus Curiae.

ESUBMISSION OF THE PARTIES16. We heard the learned counsel as noted, as also the learnedAmicus.

17. Shri Nazki would submit that the impugned judgment ignoresFthe nature of the transaction, which culminated in the conveyance andthe purpose for which the conveyance was made. It is pointed out thatthe first respondent had purchased the property with the intent to carryon the business, which consisted of manufacturing of the products inquestion. He sought fortification for the same from the support drawninitially from a Government Order premised on carrying on theGmanufacturing activity and to encourage it, with exemption of 50 percent offered by the State. He would further point out that the DistrictRegistrar had analysed the facts correctly and applied the law laid downby this Court in Duncans Industries Limited (supra). By doing so, theDistrict Registrar had correctly found that apart from land, building, andHcivil works, the plant and machinery must also be reckoned for the purpose of computation of stamp duty. He would contend that the DivisionBench had fallen into error in adopting the reasoning that if theRespondents 1 and 2 did not want the registration of the plant andmachinery, they cannot be compelled to do so. He would further pointout that adequate opportunity was afforded to the respondents by theDistrict Registrar but they chose not to avail the opportunity.

18. The learned Amicus would, after referring to the facts, projecttwo issues as arising for consideration:

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

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

19. He took us to the definition of the word ‘instrument’ in theStamp Act, 1899 (hereinafter referred to as, “the Act”). He further drewour attention to Section 47A introduced by the Andhra Pradesh(Amendment) Act of 1971. That apart, he also pointed out that by AndhraPradesh Act (8 of 1988), a proviso has been inserted in Section 27 ofthe Act, which we shall advert to. He further pointed out that thetriumvirate of Sections 4, 5, and 6 of the Act, has been succinctly explainedby this Court in the decision reported in Member, Board of Revenue v.Arthur Paul Benthall2. He would, on the strength of the law laid downtherein contend that the destiny of this case would be governed by Section5 of the Act. He would contend that there is only one instrument in thiscase, i.e., the deed of conveyance, and since more than one matter, asexpounded by this Court, exists in substance,there would be justificationfor the Authorities having regard to the powers available, in particular, inSection 27 after the insertion of the proviso therein and Section 47A. Hewould point out that the preambular recitals in the conveyance, convey aversion which may not square with the actual recitals and the purportedterms of the operative part read with the Schedule. In other words, theauction sale in favour of the second respondent-auction purchaser,indicates that the sale was of assets of the company in liquidation, suchas land, building, plant and machinery and other assets. The total saleconsideration is stated to be Rs.8.35 crores.

2 AIR 1956 SC 35

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A20. According to the learned Amicus, the Authorities are competentto verify the preambular recitals in Clauses (D), (F) and (H) along withthe entire recitals, to ascertain whether the instrument purports to providefor a larger transaction than projected in the Schedule. He would nodoubt point out that the earlier view of judicial review in these mattersfavoured a very limited power to the registering authority in traversingBbeyond the document (See Himalaya Space House Company Limitedv. Chief Controlling Revenue Authority3). He would point outsubsequent legislative changes by different legislatures which includedSection 47A as also the insertion of the proviso to Section 27 by theAndhra Pradesh Amending Act (Act 8 of 1988), has expanded the powerCof the authority. He would contend that such an exercise would have theblessing of the law laid down inDuncans Industries Limited (supra)andalso the view taken by this Court in Chief Controlling RevenueAuthority v. Coastal Gujarat Power Ltd. and others4. The Authoritiescould verify the true extent and market value of the specified immovableproperty. The power flows from Section 27 and Section 47A of the Act.DHe would draw our attention to the definition of the word ‘immovableproperty’ in the Registration Act, 1908, the General Clauses Act, 1897and the Transfer of Property Act, 1882. He would also point to Section8 of the Transfer of Property Act, 1882, as a relevant provision, whichsheds light and which should guide the Officer. The Authorities can andEmust break down the transaction or the instrument and demarcate thedistinct matters and assess the matters separately and charge theaggregate of the stamp duty under Section 5 of the Act. He would submitthat the registering authority is entitled to verify statements in D, F andH in conjunction with entire recitals to ascertain, if the instrumentpurported to provide for a larger transaction than seen projected in theFschedule. Further, the appellant could ascertain by any measures indicatedin Section 27 read with Section 47A as to whether the immovable propertyis wholly and properly described. This may include an exercise of verifyingwhether there is any embedded plant and machinery that ought to havebeen shown as immovable property and was wrongly excluded. He pointedGout that the original transaction comprised the sale of all the followingcategories of assets of the company in liquidation. They are as follows:

A. Land and Building – which is immovable property.

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B. Plant and Machinery that may be permanently embedded tothe earth and answering thedescription of immovable property asdefined.

C. Plant and Machinery and other effects which may not comeunder the description of immovable property and hence constitutemovable property.

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

21. He would point out that there were four distinct matters whichwere comprised in the composite sale.

22. The third respondent is the Company in liquidation representedby Official Liquidator. A Counter Affidavit has been filed in this Court. Itis, inter alia, disclosed that based on the Order of the High Court, aValuation Report was obtained from a Valuer. According to the ValuationReport, the land, building and civil works were valued at Rs.4013000/-.Plant and machinery were valued at Rs.6,22,10,000/-. That apart, rawmaterials were valued at Rs.15,00,000/- and furniture, etc., were valuedat Rs.3,50,000/-. A Valuation Report was also submitted on behalf of theCanara Bank wherein the value was shown as Rs. 25,10,275/- as FMVand Rs.1510705/- as disposal value. The Official Liquidator proceededto set the value, taking the value as indicated hereinbefore, given by theValuer, in regard to land, building and civil works and plant and machinery.The current assets, raw materials, furniture and fittings were shown ascarrying the value of Rs.43,60,000/-. The second respondent herein madethe highest offer of Rs.8,35,00,000/- for the properties of the companyas a lot. Shri Gopal Jha would, in fact, point out that the High Court hadmade it clear that while permitting the sale in favour of the first respondentthe stamp duty would be as determined by the authority and that theliquidator could not be blamed.

ANALYSIS

23. The expression “instrument” is defined under Section 2(14)of the Act as under:

“(14) “instrument” includes—

(a) every document, by which any right or liability is, or purportsto be, created, transferred, limited, extended, extinguished orrecorded; AB

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(b) a document, electronic or otherwise, created for a transactionin 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, B

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

24. Sections 3, 4 and 5 of the Act must be noticed and they readas follows:

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“3. Instruments chargeable with duty. —Subject to the provisionsof this Act and the exemptions contained in Schedule I, thefollowing instruments shall be chargeable with duty of the amountindicated in that Schedule as the proper duty therefore respectively,that is to say—

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(a) every instrument mentioned in that Schedule which, not havingbeen previously executed by any person, is executed in India onor after the first day of July, 1899; (b) every bill of exchange payable otherwise than on demand] orpromissory note drawn or made out of India on or after that dayand accepted or paid, or presented for acceptance or payment, orendorsed, transferred or otherwise negotiated, in India; and E

c) every instrument (other than a bill of exchange, or promissorynote) mentioned in that Schedule, which, not having been previouslyexecuted by any person, is executed out of India on or after thatFday, relates to any property situate, or to any matter or thing doneor 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,Gthe Government in cases where, but for this exemption, theGovernment would be liable to pay the duty chargeable in respectof such instrument;

(2) any instrument for the sale, transfer or other disposition, eitherabsolutely or by way of mortgage or otherwise, of any ship orvessel, or any part, interest, share or property of or in any ship or H

vessel registered under the Merchant Shipping Act 1894, Act No.57 & 58 Vict. c. 60 or under Act XIX of 1838 Act No. or theIndian Registration of Ships Act, 1841, (CX of 1841) as amendedby subsequent Acts.

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

(2) The parties may determine for themselves which of theinstrument 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 determinedshall be the highest duty which would be chargeable in respect ofany of the said instruments employed.

5. Instruments relating to several distinct matters. — Anyinstrument comprising or relating to several distinct matters shallbe chargeable with the aggregate amount of the duties with whichseparate instruments, each comprising or relating to one of suchmatters, would be chargeable under this Act.”

25. The next relevant provision is Section 27 of the Indian Stamp Act.

“27. Facts affecting duty to be set forth in instrument. —Theconsideration (if any) and all other facts and circumstancesaffecting the chargeability of any instrument with duty, or theamount of the duty with which it its chargeable, shall be fully andtruly set forth therein.”

26. Vide Andhra Pradesh Amendment Act 8 of 1988, the followingproviso was added to Section 27:

“Provided that a registering officer appointed under the RegistrationAct, 1908 or any other officer authorised in this behalf, may inspectthe property, which is the subject matter of such instrument, make A

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necessary local enquiries, call for and examine all the connectedrecords and satisfy that the provisions of this section are compliedwith.”

27. The next relevant provision is Section 47A inserted by AndhraPradesh (Amendment) Act, which reads as follows:

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“47-A. Instruments of conveyance, etc., under-vaulted how tothe dealt with: - (1) where the registering officer appointed underthe Registration Act, 1908, (Central Act 16 of 1908), whileregistering any instrument of conveyance, exchange, gift partition,settlement, release , agreement relating to construction,development or sale of any immovable property or power ofattorney given for sale, development of immovable property, hasreason to believe that the market value of the property which isthe subject matter or such instrument has not been truly setforthin the instrument, or that the value arrived at by him as per theguidelines prepared adopted by the parties, he may keep pendingsuch instrument, and refer the matter to the Collector fordetermination of the market value of the property and the properduty payable thereon:

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

(2) On receipt of a reference under sub section (1), the Collectorshall after giving the parties an opportunity of making theirrepresentation and after holding an enquiry in such manner asFmay be prescribed by rules made under this Act, determine themarket value of the property which is the subject matter of suchinstrument and the duty as aforesaid:

Provided that no appeal shall be preferred unless and until thedifference, if any, in the amount of duty is paid by the personliable to pay the same, after deducting the amount already depositedby him. Provided further that where after the determination ofmarket value by the Collector, if the stamp duty borne by theinstrument is found sufficient the amount deposited shall bereturned to the person concerned without interest.

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(3) the Collector may suo motu within two year from the date ofregistration of such instrument, not already referred to him undersub section (1), call for an examine the instrument for the purposeof satisfying himself as to the correctness of the market value ofthe property which is the subject matter of such instrument andthe duty payable thereon and if, after such examination, he hasreason to believe that market value of such property has not beentruly set forth in the instrument, he may determine the marketvalue of such property and the duty as aforesaid in accordancewith the procedure provided for in subsection (2). The difference,if any in the amount of duty, shall be payable by the person liableto pay the duty: Provided that noting in this sub-section shall applyto any instrument registered before the date of commencementof the India Stamp (Andhra Pradesh Amendment) act, 1971.

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

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

(iii) no order shall be passed under Clause (I) enhancing any dutyunless an opportunity has been given to the party to show causeagainst the proposed revision of market value and deficit stampduty; AB

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A(iv) where any action under this sub-section has been deferred onaccount of any stay order granted by the Court in any case, or byreason of the fact that another proceeding is pending before theCourt involving a question of law having a direct bearing on theorder or proceeding in question, the period during which the stayorder was in force or each proceeding was pending shall beBexcluded in computing the period of six months specified in theproviso to clause (I) of this section for the purposes of exercisingthe power under this sub-section.

(4) Any person aggrieved by an order of the Collector under sub-section (2) or sub-section (3) may appeal to the appellate authorityCspecified in sub-section (5). All such appeals shall be preferredwithin 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 Generalunder subsection (3A) may appeal to the High Court within aDperiod 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 CivilCourt, E

(ii) elsewhere— (a) the Subordinate Judge or if there are morethan one Subordinate Judge, the Principal Subordinate Judge,having jurisdiction over the area in which the property concernedis situated; or (b) if there is no such Subordinate Judge, the District Judge havingjurisdiction over the area aforesaid.

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(6) For the purpose of this Act, market value of any property shallbe estimated to be the price which in the opinion of the Collectoror the appellate authority, as the case may be, such property wouldGhave fetched or would fetch if sold in the open market on the dateof execution of any instrument referred to in sub-section (1); Provided that in respect of instruments executed by or on behalfof the Central Government or the State Government or anyauthority or body incorporate by or under any law for the timebeing in force and wholly owned by Central/state Government, H

the market value of any property shall be the value shown in suchinstrument.”

28. Now, we must notice the definition of the word ‘immovableproperty’ in the Registration Act, General Clauses Act, and the Transferof Property Act. We must also advert to Section 8 of the Transfer ofProperty Act:

“In the Registration Act, 1908, the definition is; “1(6) “Immovable Property” includes land, buildings, hereditaryallowances, rights to ways, lights, ferries, fisheries or any otherbenefit to arise out of land, and things attached to the earth, orpermanently 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 ariseout of land, and things attached to the earth, or permanentlyfastened to anything attached to the earth; Transfer of Property Act, 1882

3. …

“immoveable property” does not include standing timber, growingcrops or grass; “instrument”, means a non-testamentaryinstrument; Section 8 of Transfer of Property Act, 1882

“8.Operation oftransfer.—Unless a different intention is expressedor necessarily implied, a transfer of property passes forthwithtothe transferee all the interest which the transferor is then capableof passing in the property, and in the legal incidents thereof. Suchincidents include, where the property is land, the easementsannexed thereto, the rents and profits thereof accruing after thetransfer, and all things attached to the earth; and, where theproperty is machinery attached to the earth, the moveable partsthereof; and, where the property is a house, the easements annexedthereto, the rent thereof accruing after the transfer, and the locks,keys, bars, doors, windows and all other things provided forpermanent use therewith; and, where the property is a debt or A

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other actionable claim, the securities therefor (except where theyare also for other debts or claims not transferred to the transferee),but not arrears of interest accured before the transfer; and, wherethe property is money or other property yielding income, the interestor income thereof accruing after the transfer takes effect.”

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B29. In Member, Board of Revenue (supra), this Court had theoccasion to expound the law by interpreting Sections 3, 4, and 5 of theIndian Stamp Act. In the said case, the Respondent therein had executeda power of attorney. The power of attorney countenanced power beingconferred on the agent by the respondent in his individual capacity andalso in other capacities such as trustee, etc. The question which interCalia fell for decision was whether the word ‘matter’ in Section 5 was tobe conflated with category. It is necessary to notice what the majority ofthis Court held:

“4. We are unable to accept the contention that the word “matter”in Section 5 was intended to convey the same meaning as theDword “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-acreto X and mortgages White-acre to Y, the transactions fall underEdifferent categories, and they are also distinct matters. Butif A mortgages Black-acre to X and mortgages White-acre to Y,the two transactions fall under the same category, but they wouldcertainly be distinct matters. If the intention of the legislature wasthat the expression ‘distinct matters’ in Section 5 should beunderstood not in its popular sense but narrowly as meaningFdifferent categories in the Schedule, nothing would have beeneasier than to say so. When two words of different import areused in a statute in two consecutive provisions, it would be difficultto maintain that they are used in the same sense, and the conclusionmust follow that the expression “distinct matters” in Section 5Gand “descriptions” in Section 6 have different connotations.

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7. The error in this argument lies in thinking that the object andscope of Sections 4 to 6 are the same, which in fact they are not.Section 4 deals with a single transaction completed in several H

instruments, and Section 6 with a single transaction which mightbe viewed as falling under more than one category, whereasSection 5 applies only when the instrument comprises more thanone transaction, and it is immaterial for this purpose whether thosetransactions are of the same category or of different categories.The topics dealt with in the three sections being thus different, nouseful purpose will be served by referring to Section 4 or Section6 for determining the scope of Section 5 or for construing its terms.It is not without significance that the legislature has used threedifferent words in relation to the three sections, “transaction” inSection 4, “matter” in Section 5, and “description” in Section 6.”

30. In the Judgment of this Court in Himalaya Space HouseCompany Limited (supra), this Court was dealing with the case underthe Act containing Section 27 sans the proviso added by the AndhraPradesh Act. Paragraph 11 of the judgment reads as under:

“11. It was urged that in view of Section 27 of the Stamp Act, itwas permissible for the Revenue to look into the terms andconditions of the agreements entered into by Uttamchand withthe various persons to whom he had assigned flats, offices andshops, particularly in view of the fact that the impounded documentmakes reference to those agreement. We are not able to acceptthat contention. Section 27 prescribes that “The consideration (ifany) and all other facts and circumstances affecting thechargeability of any instrument with duty, or the amount of theduty with which it is chargeable shall be fully and truly set forththerein”. It is true that in view of this provision, the parties to adocument are required to set forth in the document fully and trulythe consideration (if any) and all other facts and circumstancesaffecting the chargeability of that document with the duty or theamount of the duty with which it is chargeable. But a failure tocomply with the requirements of that section is merely punishableunder Section 64 of the Stamp Act. No provision in the Stamp Actempowers the Revenue to make an independent inquiry of thevalue of the property conveyed for determining the dutychargeable. Article 23 is the article that governs the charging ofstamp duty on “conveyance”. That article to the extent relevantfor our present purpose reads:

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“23. Conveyance as defined by Section 2(10) not being a transfercharge or exempted under Section 52. Where the amount or valueof the consideration for such conveyance as set forth therein….”

(emphasis supplied)

31. In other words, the Court apparently approved of the viewBtaken that the Court should look at the instrument as it stood (see ILR 27Bom 279 referred to in para 12).

32. Duncans Industries Limited (supra) is a case which aroseunder the Registration Act, 1908 and Section 47A of the Act [Section47A considered in the case was an amendment by the Uttar PradeshCLegislature]. It involved a transfer on “as is where is” basis and “as agoing concern” of a fertilizer business in favour of the appellant company.This was preceded by an agreement which involved also expressly thetransfer of plant and machinery. The Collector levied stamp duty andpenalty on the basis that since the transfer contemplated the sale of theDunit as a going concern, the intention of the Vendor was to transfer allproperties in the fertilizer business in question. The High court had heldthat the machineries which formed fertilizer plant was permanentlyembedded in the earth with an intention of running the factory. It wasfound that the machineries were immovable property which werepermanently attached to the earth. Para 8 of the said judgment reads asEunder:

“8. …The question whether a machinery which is embedded inthe earth is moveable property or an immovable property, dependsupon the facts and circumstances of each case. Primarily, theFcourt will have to take into consideration the intention of the parties(sic party) when it decided to embed the machinery, whether suchembedment was intended to be temporary or permanent. A carefulperusal of the agreement of sale and the conveyance deed alongwith the attendant circumstances and taking into considerationthe nature of machineries involved clearly shows that theGmachineries which have been embedded in the earth to constitutea fertilizer plant in the instant case, are definitely embeddedpermanently with a view to utilise the same as a fertilizer plant.The description of the machines as seen in the schedule attachedto the deed of conveyance also shows without any doubt thatthey were set up permanently in the land in question with a view H

to operate a fertilizer plant and the same was not embedded todismantle and remove the same for the purpose of sale asmachinery at any point of time. The facts as could be found alsoshow that the purpose for which these machines were embeddedwas to use the plant as a factory for the manufacture of fertilizerat various stages of its production………

“10. The next question for consideration is whether the vendordid transfer the title of the plant and machinery in the instant caseby the conveyance deed dated 9-6-1994. Here again, it isimperative to ascertain the intention of the parties from the materialavailable on record. While ascertaining the intention of the parties,we cannot preclude the contents of the agreement pursuant towhich the conveyance deed in question has come into existence.We have noticed that as per the agreement it is clear that whatwas agreed to be sold is the entire business of fertilizer on an “asis where is” basis including the land, building thereon, plant and—machinery relating to fertilizer business description of which isfound in the definition of the term “fertilizer business” in theagreement itself which has been extracted by us hereinabove. Itis not the case of the appellant when it contends that the possessionof plant and machinery was handed over separately to the appellantby the vendor, that these machineries were dismantled and givento the appellant, nor is it possible to visualise from the nature ofthe plant that is involved in the instant case that such a possessiondehors the land could be given by the vendor to the appellant. It isobviously to reduce the market value of the property the documentin question is attempted to be drafted as a conveyance deedregarding the land only. The appellant had embarked upon amethodology by which it purported to transfer the possession ofthe plant and machinery separately and is contending now thatthis handing over possession of the machinery is dehors theconveyance deed. We are not convinced with this argument. Apartfrom the recitals in the agreement of sale, it is clear from therecitals in the conveyance deed itself that what is conveyed underthe deed dated 9-6-1994 is not only the land but the entire fertilizerbusiness including plant and machinery. A perusal of clauses 10,11 and 13 of the said deed shows that it is the fertilizer factorywhich the vendor had agreed to transfer along with its business A

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as a going concern and to complete the same the conveyancedeed in question was being executed. There is implicit referenceto the sale of fertilizer factory as a going concern in the conveyancedeed itself….”

11. Learned counsel for the appellant has placed for ourconsideration a judgment of this Court in the case of HimalayaHouse Co. Ltd. v. Chief Controlling Revenue Authority [(1972)1 SCC 726] to contend that a mere reference to an earlieragreement does not amount to incorporation of the terms andconditions 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 absoluteterms that a court cannot look into prior agreements whileconsidering the intention of the parties for finding out what actuallyis the property that is conveyed under the deed under consideration.It is again based on facts of that case that this Court came to theconclusion therein that the so-called terms and conditions whichwere found in an earlier agreement were not intended to beincorporated in the subsequent document….

13. For the reasons stated above, we are of the considered opinionthat the vendor as per the conveyance deed dated 9-6-1994 hasconveyed the title it had not only in regard to the land in questionbut also to the entire fertilizer business on “as is where is” conditionincluding the plant and machinery standing on the said land.Therefore, the authorities below were totally justified in takinginto consideration the value of these plant and machineries alongwith the value of the land for the purpose of the Act.”

(Emphasis supplied)

33. In Chief Controlling Revenue Authority (supra), therespondent secured financial assistance from a few lenders who formeda consortium and executed an agreement appointing one bank as its leadtrustee. The respondent executed the mortgage with the lead trustee.The Revenue contended that the respondent had availed assistance from13 lenders and, therefore, it was required to execute the mortgage deedin respect of 13 lenders.Thus, in substance the single mortgage deedwith the lead trustee was a combination of 13 mortgages. This Courtnoted, inter alia, that the instrument of mortgage had come into existence only after separate loan agreements were entered into by the borrowerwith regard to separate loans advanced. The Court drew inspirationfromMember, Board of Revenue(supra) and held that had the borrowersentered into separate mortgage deeds with the 13 financial institutionsthere would have been a separatedocuments. It was consequently foundthat the single mortgage must be treated as dealing with distinct matterswithin the meaning of Section 5 of the Act and justified the stand of theRevenue.

34. We have set out the Preamble and also the recitals in the saledeed. This is besides capturing the background leading up to the executionof the sale deed in favour of the first respondent. The second respondentwas, undoubtedly, the auction purchaser. The auction sale related to theassets of the company, which included the land, the building, the plantand machinery and other assets. The vendee, who under the sale deedis the first respondent, being the nominee of the second respondent.Ithas been recited in Clause (H) that the vendee has paid the fullconsideration. More significantly, it is stated therein also that as per theterms of the sale properties have been sold by the vendor to the vendeeon ‘as is where is whatever there is basis’. The total sale consideration,it is clear again from the sale deed itself, is Rs.8.35 crores, for the land,building, civil works, plant and machinery and current assets, etc.However, what had been done is an amount of Rs.10105000/- has beentaken as the value of the land, building and civil works based on the offerreceived by the Liquidator, when the assets were put up for saleindividually. It is further stated that the purchaser has agreed to pay thestamp duty/registration fees/transfer fees as per the value derived bythe Sub-Registrar. This last statement is traceable to order dated15.06.2004 passed in civil Appeal 1202 of 2004 which we have referredto in paragraph 6. A copy of the said order is enclosed with the saledeed. It is further stated that the 46 acres and a few cents was ‘now’registered in favour of the vendee. In the Recital Clause, thereafter,what has been purported to be done is that it is shown that the vendorshave sold, transferred, conveyed, alienated, assigned to the vendee allthe scheduled property. The matter does not end there. The aforesaidrecital is followed up with the words ‘along with all the rights, easements,interests, etc., the rights which ordinarily passed on through such sale onand over the said land in favour of the vendee and to hold and enjoy thesame as absolute owner. In the Schedule, no doubt, what is mentioned is46 acres and a little over 71 cents. We have already referred to the AB

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Aconduct of the first and second respondents, which commended itself tothe learned Single Judge as conveying the impression that they wantedto repair and maintain the plant and machinery. Furthermore, they havealso sought the benefit of the exemption provided under GoMS 103 dated07.02.2001, which Government Order purported to provide for certainconcessions in the form of exemption from stamp duty and registrationBfee in favour of industrial units. We are in agreement with the viewtaken by the learned Single Judge that the unit was purported to beoperated as a going concern and apparently the first respondent did notintend to dispose of the plant and machinery as scrap. Bearing in mindthis context, we proceed to examine the exigibility of the plant andCmachinery to stamp duty under the Act.

35. We have referred to Sections 3, 4 and 5 of the Act. We havealso adverted to the interpretation traced on the same by this Court inMember, Board of Revenue(supra). The learned Amicus would submitthat plant and machinery would constitute ‘distinct matters’ within theDmeaning of Section 5 of the Act. To put it differently, distinct matters aredealt with in one instrument, viz., the sale deed in question. If differentinstruments had been executed purporting to convey land, building, plantand machinery, it would be the aggregate of the value of such matters,which would have exposed them to duty. If instead of separateinstruments, distinct matters are made subject matter of one instrument,Ethen, it would hardly matter and the liability to pay duty would be stillfound within the four walls of Section 5 of the Act.

36. It is, no doubt, true that what is purported to be conveyed,going by the Recital Clause, is, at first blush, the land as comprised in theSchedule, viz., 46 and odd acres. What is conveyed is immovable property.FImmovable property has been defined in the General Clauses Act, 1897as ‘including land, benefits to arrive out of land and things attached tothe earth or permanently fastened to anything attached to the earth’.When it comes to the definition of ‘immovable property’ in the Transferof Property Act, it has been defined as ‘not including standing timber,Ggrowing crops or grass’. In the Registration Act, 1908, immovableproperty includes, apart from land and buildings, things attached to theearth or permanently fastened to anything which is attached to the earthbut not including standing timber, growing crops or grass. Most importantly,we cannot also be oblivious that Section 8 of the Transfer of PropertyAct declares that in the absence of an express or implied indication, aH

transfer of property passes to the transferee all the interests, which thetransferor was capable of passing in the property and in the legal incidentsthereof. Such incidentsincludes, inter alia, where the property is land, allthings attached to the earth. When the property is machinery attachedto the earth, the movable parts thereof also are comprehended in thetransfer.

37. In the Recital Clause, a proper reading of the same wouldtend to indicate that what is conveyed is rights over the scheduled property,which, no doubt, is the land, as described in the Schedule but it includesall the rights, easements, interests, etc., i.e., the rights which ordinarilypassed on such sale over the land. It is from a reading the said recital inconjunction with Section 8 of the Transfer of Property Act that theintention of the parties become self-evident that the vendor intended toconvey, all things, which inter alia stood attached to the earth. Themere fact that there is no express reference to plant and machinery inthe Recital Clause cannot mean that the interest in the plant and machinerywhich stood attached to the land, which was scheduled, was not conveyedto the first respondent. The value of, what was actually purchased, hasbeen expressly set out in the Preamble to the sale deed. The value hasbeen reflected as Rs.8.35 crores. The sum of Rs.8.35 crores had been,inunambiguousterms, indicated as the total sale consideration for theasset sold to the first respondent, comprising of land, building, civil works,plant and machinery and current assets, etc. The first respondent hastakenout the value of the land, building and civil works, and shown it atRs.10105000/-, and then indicating only the said amount as value. This isapparently to tide over the liability to stamp duty for what was actually,in law, conveyed to the first respondent. The Division Bench appears tohave proceeded on the basis that the first appellant could not forceRespondents 1 and 2 to pay stamp duty on the value of the plant andmachinery, when they do not seek its registration. As respondents 1 and2 had given up their claim for exemption based on the Government Order,the Division Bench accepted the same. The Division Bench overlookedthe nature of the transaction, the effect of the auction sale, the propertysold and their value, and the fact that the Company Judge had by orderdated 15.06.2004 left it open to the authority to determine the liability.The Division Bench did not consider the preambular part. It alsofailedtobear in mind the power available with the authorities.

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A38. The effort of respondents 1 and 2 was to avoid payment ofthe stamp duty as due in law. The Division Bench erred in not noticingthe true purport of the sale deed in conjunction with Section 8 of theTransfer of Property Act and the definition of the word ‘immovableproperty’, which we have adverted to. Viewed in the context ofDuncansIndustries Limited (supra) and Member, Board of Revenue (supra), asBalso the other attendant facts, including the contents of the Preambularportion, as also the conduct of the Respondents 1 and 2, it would beclear that the sale deed operated to convey the rights over the plant andmachinery as well, which was comprised in the land scheduled in thesale deed. As far as the plant and machinery is concerned, it must,Chowever, be only such plant and machinery, which was permanentlyembedded to the earth and answering the description of the immovableproperty as defined. It would appear that such an inquiry was not doneto ascertain the same by the appellants.

39. The proviso to Section 27 of the Act, added by the AndhraDPradesh Amending Act (8 of 1988), does empower the Officer to inspectthe property, make local inquiries in the facts, call for connected records,examine them and satisfy that the provisions of Section 27 are compliedwith. Section 27, undoubtedly, provides that the consideration, if any, andthe other facts and circumstances, affecting the chargeability of anyinstrument or the amount of duty, must be fully and correctly set forth.EEqually, Section 47A of the Andhra Pradesh Amending Act (8 of 1988),empowers the Registering Officer to deal with undervalued instruments.We have adverted to the provision and it provides for an elaborateprocedure to deal with the problem of undervaluation. It may be truethat Section 27 of the Act read with Section 64, as interpreted inHimalayaFSpace House Company Limited (supra), was understood as meaningonly that failure to comply with Section 27, was punishable under Section64. The Court, in the said case, in fact, noted the absence of any provision,empowering the Revenue to make an independent inquiry for determiningthe value of the property. As far as Andhra Pradesh is concerned, withthe addition of the proviso to Section 27, power has been conferred onGthe Authority, which was found conspicuous by its absence inHimalayaSpace House Company Limited (supra). This is besides Section 47Aof the Act.

40. We would think that the learned Amicus is right in pointing outthat in the nature of the transaction, and what was actually sold by theH

Official Liquidator, plant and machinery, such as would answer thedescription of immovable property, must also be found part of the propertyfor the purpose of the stamp duty and other charges as per law.

41. There are two aspects, which remain. Firstly, as noted by us,on account of the default of the appellants to effect service on the secondrespondent, the SLP stood dismissed. We, however, notice that, at therequest of the second respondent, the Company Court ordered that thesale deed be executed in favour of its nominee, viz., the first respondent.The first respondent, accordingly, became the vendee under the saledeed. It is the first respondent, which is liable in law as vendee to paythe stamp duty. Therefore, we would think that the absence of the secondrespondent, may not affect passing of an order as against the firstrespondent, which, as the vendee, is the entity liable to bear the liabilitytowards stamp duty.Another aspect is that the matter may have to goback to consider the actual plant and machinery as would answer thedescription of immovable property as correctly pointed out by the learnedAmicus. The passage of time may have its bearing. But it may have tobe carried out.

42. As noticed by us, the appellants had also appealed against theJudgment of the learned Single Judge. The Single Judge, it must beremembered, while upholding the Order of the second appellant (DistrictRegistrar) in regard to the value of the plant and machinery, had directeddeducting the value of the current assets and also directed makingavailable benefits of GoMS 103 dated 07.02.2001. Apparently,Respondents 1 and 2 in the Appeal gave up their claim to the exemptionon the basis that they succeeded in having the sale deed registeredwithout having to include the value of plant and machinery before theDivision Bench. The stand of the appellants would appear to be thatGoMS 103 dated 07.02.2001 applied to new industrial units other thanthose listed as ineligible under GoMS 9 dated 05.01.2001. It appears tobe their case that the subject industry is a mini steel industry and ministeel industry plants were not eligible and the item appears as Item 56 inAnnexure 1 to GoMS 9 dated 05.01.2001.Since, the respondents gaveup their claim for exemption, the case of the appellants was not goneinto by the Division Bench. We are of the view that the second appellantcan look into this aspect as well.

43. The upshot of the above discussion is that the Appeal filedagainst Writ Appeal No. 1873 of 2005 is allowed. The Appeal filed against AB

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Athe Judgment in Writ Appeal No. 2457 of 2005 is partly allowed. Theimpugned Judgment is set aside and we restore the Judgment of thelearned Single Judge subject to the modification that we set aside thedirection to the second appellant to give the benefit of GoMS 103 dated07.02.2001. The second appellant will ascertain the value of plant and machinery on the basis of it answering the description of the immovableBproperty as understood in law. The second appellant will also go into thequestion, whether the first respondent would be entitled to the benefit ofthe exemption of stamp duty, etc., as claimed while taking a decision andmake available theexemption, if entitled in law.We make it clear that thesecond respondent cannot be made liable under this judgment. PartiesCwill bear their respective costs.

Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeals disposed of.

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