ORDER
S.R. Singh, J.
1. The petitioner has approached this Court by means of the present petition, assailing the legality and propriety of the two orders — one dated 20-2-1995 passed in proceeding under Section 47A(2) of the Stamp Act, 1899, by Additional District Magistrate (Finance and Revenue), Kanpur Nagar, levying stamp duty of Rs. 37,01,26,832-50/- and slapping a penalty of Rs. 30,53,167-50/- and the other dated 4-4-1995 passed by the Chief Controlling Revenue Authority in Stamp Revision No. 36,of 1995-96 Kanpur Nagar under Section 56 of the Stamp Act, preferred against the aforesaid order of the Additional Distt. Magistrate (Finance and Revenue), Kanpur Nagar. The revision has been allowed partly vide impugned order dated 4-4-1995 of the Chief Controlling Revenue Authority, setting aside the order passed by the Addl. District Magistrate (Finance and Revenue), Kanpur Nagar in so far as imposition of penalty was concerned and slightly modifying the order under revision as regards the stamp duty holding that the total stamp duty payable on the deed of conveyance dated 9-6-1994 would be Rs. 36,68,08,887-50 — at an estimated total value of Rs. 2,53,14,61,115/-.
2. The facts as are relevant to shed light on the controversy involved herein may be briefly stated and they are that an agreement of sale was executed on 11th day of Nov. 1993 between ICI India Ltd., a company within the meaning of Companies Act, 1956 having its registered office at 34, Chowranghi Road. Calcutta and Chand Chhap Fertilizer and Chemicals Ltd., a public company incorporated under the Companies Act, 1956 as a subsidiary of IC1, having its registered office at Panki Industrial Area, site No. 1 Udyog Nagar, Kanpur, whereby ‘Fertilizer Business’ of manufacture, marketing, distribution and sale of Urea Fertilizer, which was being carried on by ICI was agreed to be transferred on ‘as is where is’ and as a going concern in favour of Chand Chhap Fertilizer and Chemicals Ltd., Panki, Kanpur (in short CCFC) which has been re-christened and has come to be known as M/s. Duncans Industries Ltd., Fertilizer Division, Kanpur Nagar, for a total sale consideration of Rs. 70 crore which was termed as ‘slump price’ in the agreement, it was agreed that ICI would on the “Transfer Date’, transfer the ‘Fertilizer Business’ by actual delivery of possession to CCFC in respect of such of the estates and properties mentioned in the agreement, as were capable of being transferred by actual and/or constructive delivery and in respect of estates requiring transfer by execution of documents, ICI would transfer the same by executing the necessary documents and vesting the title thereof in CCFC and it was further agreed and declared that the ownership in respect of assets and properties comprised in the ‘Fertilizer Business, to be transferred as per agreement, would be deemed to be vested in CCFC on and from the ‘Transfer Dare’ which, according to the agreement, means ‘1st Dec. 1993 or such other date as may be agreed to by and between ICI and CCFC”. The term ‘Fertilizer Business’ as nailed down in the agreement, means and includes the following amongst other properties :
“(i) Demised land being plot Nos. 2B and 5 and the Sub-divided portion of plot No. 2 demarcated and admeasuring in the aggregate an area of 243.4387 acres equivalent to 9,85,159,50 sq. mtrs. being the unshaded portion shown on the plan annexed hereto together with the buildings and structures thereon forming part of the fertilizer business as on the Transfer Date;
(ii) freehold land and residential building thereon with the name ‘Chandralok’, situate at plot No. 4/284, Parbati Bangla Road, Kanpur comprising 24 residential flats;
(iii) freehold a land and residential building thereon with the name “Chandrakala”, situate at Navesheel Apartments, 56 Cantonment, Kanpur comprising a Guest House on the ground floor and 3 residential flats on the first floor;
(iv) Plant and machinery relating to the Fertilizer Business including the Ammonia Manufacturing Plants, the Captive power Plant and all other movable capital assets including vehicles, furniture, air-conditioners, stand-by systems, pipelines, railway siding etc., as on the Transfer Date and wheresoever situate, all of which relate exclusively to the Fertilizer Business and are owned and in the possession of ICI or are owned by ICI but in the lawful possession of any third party for and on behalf of ICI;”
‘Chandralok’ comprising 24 residential flats being premises No. 4/284 Parbati Bangla Road, Kanpur hereinafter referred to as ‘premises No. 1’ and freehold land and residential building known as ‘Chandrakala’ comprising a guesthouse on the ground floor and three residential flats on the first floor hereinafter described as ‘Premises No. 2’ and the other immovable structures are more fully and particularly described in ‘first schedule’, ‘second schedule’ and ‘third schedule’ annexed to the conveyance deed. In other words, in the first schedule to the deed is mentioned premises No. 4/28A, Parbati Bangla Road, Kanpur commonly known as ‘Chandralok’ and in the second schedule is delineated the property commonly known as ‘Chandrakala’. The third schedule describes all the buildings and other immovable structures more fully delineated in the plan annexed to the conveyance deed and thereupon set out all the piece and parcel of the land at Block A, Panki Pandhu scheme No. 40, Kanpur admeasuring 243.4387 acre in the aggregate comprising land admeasuring 241.7726 acre of plot No. 2 land admeasuring 1.0331 acres of plot No. 2-B; and land admeasuring 0.633 acres of plot No. 5 more fully described in the plan attached to the deed in question.
3. The crux of the controversy orbits around the issues firstly, as to whether reference under Section 47 A of the Stamp Act, 1899 (in short ‘the Act’) was justified and secondly, as to whether the plant and machinery relating to fertilizer factory, were, in effect, transferred by means of the conveyance deed which forms the genesis of the disputation giving rise to this petition.
4. Shri Shanti Bhusan, learned counsel appearing for the petitioner contended in the first limb of his argument that on the material before it, the Registering Authority cannot be perceived to have any ‘reason to believe’ that the market value of the property which was the subject matter of conveyance had not been truly set forth in the instrument. The learned counsel canvassed that the Collector gets at the jurisdiction under Section 47A of the Act to embark upon determination of the market value of the property which is the subject matter of the conveyance and the duty payable thereon only upon a valid reference and not otherwise. This contention was met with stiff resistance by Shri Bharat Ji Agrawal, who elaborated that the reference made by the Registering Authority to the Collector did not wear the taint of any infirmity and as such, the counsel urged, the order passed by the Collector and the one by the Chief Controlling Revenue Authority, are not open to challenge on the ground of lack of jurisdiciton.
5. Section 47 A(2) of the Act postulates that if the Registering Authority while registering the instrument on which duty is chargeable on the market value of the property, has “reason to believe that the market value of the property which is the subject matter of such instrument has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the market value, of such property and proper duty payable thereon. The term “reason to believe” occurring in Sub-section (2) of Section 47A spells out that Registering Officer, must have some material-direct, circumstantial or even intrinsic evidence-on the basis of which, he may come to a reasonable belief that the market value of the property has not been truly set forth in the instrument. In other words the belief must be that of the honest and reasonable person based upon reasonable grounds. In Ganga Saran and Sons v. Income-tax Officer, AIR 1981 SC 1363, the Supreme Court while dwelling on the expression ‘reason to believe’ occurring in Section 147A of the Income-tax Act, 1961 was pleased to hold as under :
“The important words under Section 147(a) are ‘has reason to believe’ and these words are stronger than the words “is satisfied”. The belief entertained by the Income-tax Officer must not be arbitrary or irrational. It must be reasonable or in other words it must be based on reasons which are relevant and material. The court, of course, cannot investigate into the adequacy or sufficiency of the reasons which have weighed with the Income-tax Officer in coming to the belief, but court can certainly examine whether the reasons are relevant and have a bearing on the matters in regard to which he is required to entertain the belief before he can issue notice under Section 147(a). If there is no rational or intelligible nexus between the reasons and the belief so that on such reasons no one properly instructed on facts and law could reasonably entertain the belief, the conclusion would be inescapabfe that the Income-tax Officer could not have reason to believe that any part of the income of the assesse, had escaped assessment and such escapement was by reason of the omission or failure on the part of the assessee to disclose fully and properly all material facts and the notice issued by him would be liable to be struck down as invalid.”
6. Formulation of the requisite belief, under Section 47A of the Stamp Act is not a matter of purely subjective satisfaction. In State of Punjab v. Mahavir Singh (1996) 1 SCC 609 : (AIR 1996 SC 2994), the Supreme Court while considering identical Section 47A as inserted in the Act by Punjab Stamp (Amendment) Act, 1992 held that the Registering Authority has to satisfy himself that the value of the property or the consideration of it has not been truly set forth in the instrument and further that it will be “only an objective satisfaction” that the authority has to reach a reasonable belief that the value or consideration of the property conveyed has not been truly set forth in the instrument relating to the transfer of property. It is thus patent that it would be matter of objective satisfaction of the Registering Authority to reach a reasonable belief that the value or consideration of the property which is the subject matter of transfer, has not been truly set forth.
7. In the instant case, it cannot be infered that the Registering Authority referred the matter without proper self-direction to the material placed before it. Referring order dated 14-6-1996, a copy of which has been annexed as Annexure CA-1 to the counter affidavit, is eloquent of the fact that the Registering Authority has placed credence on relevant factors for reaching a belief that the value of the property has not been truly set forth in the deed of conveyance. Sub-rule (3) of Rule 340of the U.P. Stamp Rules, 1940 enumerates the particulars to be mentioned in the deed of conveyance in so far as it relates to buildings. The particulars which, according to the said provision, ought to have mentioned are; (a) the total covered area and open land if any, in sq. meters; (b) number of storeys and area of each storey in sq. meters; (c) whether pucca or Kuchcha; (d) actual annual rent or assumed annual rent; and (c) annual rent assessed by any local body and the amount of house tax payable thereon, if any. A perusal of the instrument of conveyance would be — speak that the details aforesaid are conspicuous by their sketchiness in respect of ‘premises No. 1’ and ‘premises No. 2’ as well as other buildings and immovable structures described respectively in the first schedule, second schedule and third schedule to the instrument. Conspicuous absence of the required particulars from the deed provides for an intrinsic circumstance which coupled with the application for clearance of income -tax and order passed on it by Income-Tax Officer under Section 230 of the Income-tax Act, 1961 and no objection certificate issued by the appropriate authority under Section 269 of the Income-tax act, 1961 would constitute reasonable material/ground for believing that the value of the property was not truly set forth in the deed of conveyance. In the circumstances of the case, therefore, it cannot be said that the Registering Authority was not justified in making reference under Sub-section (2) of Section 47-A of the Act.
8. The next question that necessitates an examination is whether the plant and machinery in relation to fertilizer business were also the subject matter of the deed of conveyance. Shri Shanti Bhushan urged that the plant and machinery in the instant case, do not satisfy the description of the ‘immovable property’ and, therefore, the same was transferred by delivery of possession and not by means of the instrument in question. A perusal of the revisional order passed by the Chief Controlling Revenue Authority would denote that the first question posed by it was “whether the plant and machinery could be included in the said conveyance deed of sale”, but without returning a finding on the question the Chief Controlling Refenue Authority proceeded to determine the value of plant and machinery and held that “Learned Additional Collector has rightly asessed the value of the plant and machinery at Rs. 2,42,53,00,000/-.” In so far as the manner of valuation of the plant and machinery is concerned, the Chief Controlling Revenue Authority has, on aproper self-direction to the material on record, worked out the value of the plant and machinery on the basis of what the same would fetch if reinstalled somewhere as a second-hand plant and has rightly repelled the argument for deducting upgradation related investment from the residual value of the plant and machinery. The learned counsel appearing for the petitioner could not point out any error in decision making process in so far as the determination of value of the plant and machinery is concerned. The finding on the value of the plant and machinery is a finding of fact based on appraisal of valid and relevant material on record. It does not wear the mark of any infirmity and warrants no interference in supervisory jurisdiction under Article 226/227 of the Constitution in the absence of any error in decision making process. In fact the finding on valuation of plant and machinery was not seriously challenged by Shri Shanti Bhushan during the course of argument and, in my opinion, rightly.
9. The truth of argument of Shri Shanti Bhushan was that since the plant and machinery did not satisfy the description of ‘immovable property’, hence their transfer was effected by delivery of possession and not by means of the instrument in question and, therefore, no stamp duty was chargeable in relation to the value of the plant and machinery. Reliance was placed on South Indian Bank Ltd. v. V.K. Chettiar and Brothers, AIR 1953 Mad 215 (sic) in support of the contention that plant and machinery in the instant case, be treated as movable properties. The decision aforesaid is not of much avail to resolving the controversy as to whether the plant and machinery annexed to the earth satisfy the description of immovable property for, in the ultimate analysis, it “depends upon the mode of annexation and primarily on the intention of the parties and other relevant surrounding circumstances in each particular case” as propounded in the said decision. In Reynolds v. Ashby and Sons, 1904 AC 466, the machineries were fixed, as in the present case, to concrete beds in the floor of the factory by bolts and nuts and could have been removed without injury to the building or the beds, Lord Liudley observed :
“The purpose, for which machines were obtained and fxed, seems to me unmistakable; it was to complete and use the building as a factory. It is true that machines could be removed, if necessary, but the concerete beds and bolts prepared for them negative any idea of treating machines when fixed as movable chattels.”
The decision by House of Lords in the case of Reynolds (supra) was noticed by a learned single Judge of this Court in Official Liquidator v. Sri Krishna Deo, AIR 1959 All 247, in which case the plant and machinery were either embedeed in the earth or they were permanently fastened to things attached to earth. It was held that the plant and machinery of the company could not be treated as movable property in that the machines permanently fastened to the things attached to earth “were set up there with definite intention of running oil mills and not with the idea of removing me same”. It may be pertinently observed that the ‘Fertilizer Business’ in the instant case, was transferred as a running concern on “as is where is” basis and annexation of the plant and machinery to the earth was of a permanent nature in that they were annexed to earth or permanently fastened to the things attached to earth with the definite intention of running the fertilizer factory and not with the idea of removing the same. In the circumstances of the case, therefore, I am of the considered view that the plant and machinery which are delineated in the plan attached to the conveyance deed, are to be treated as immovable property and the submission made by the learned counsel to the controversy cannot be countenanced.
10. It would, however, make no difference whether the plant and machinery are held to be moveable or immovable property in case these are found to have been transferred with the title thereto vesting in the CCFC as a result of the conveyance deed in question. The crucial question, therefore, that remains to be decided is as to whether the plant and machinery of the Fertilizer Factory were transferred and title thereto vested in CCFC as a result of conveyance deed in question. As already noticed, the question was albeit posed by the Chief Controlling Revenue Authority, but no finding thereon was returned by it. In normal course the matter would have been remitted back to the Chief Controlling Revenue Authority for deciding the question afresh in terms of its finding on the question as to whether the plant and machinery were actually transferred and title thereto vested in CCFC as a result of the instrument in question, but counsel for the parties urged that the question could be examined and answered even by this Court as there is no dearth of power under Article 226/227 of the Constitution. Accordingly with the consent of the parties’ learned counsel, I proceed to examine and venture an opinion on the question aforesaid and for this purpose it would be worthwhile to quote the relevant clauses of the deed in question as under :
“10. Pursuant to the said agreement and with the permission of KDA and with the consent of the Competent Authority/the Government of Uttar Pradesh under the provisions of the Urban Land (Ceiling and Regulation) Act, the vendor has by a deed of Sub-lease dated 10-12-1993 granted a sub-lease of the said demised lands Jo the Purchaser for the remaining unexpired terms under the said deeds of lease w.e.f. from date the said Fertilizer Factory of the vendor is transferred to and vested unto the Purchaser for consideration and on the terms and conditions therein mentioned.
11. The Vendor and the Purchaser have agreed to transfer the said Fertilizer Business including the Fertilizer Factory as a going concern on an as is where is basis w.e.f. 6 a.m.. of 11th December 1993 and Venor has handed over possession of the said Business and Factory to the Purchaser and the said deed of Sub-lease has become effective from the said date. Simultaneously the vendor has also delivered possession of all the moveable assets comprised in the said fertilizer business to the purchaser.”
xxx xxx xxxx xxxx xxx xxxx
“13. The vendor now intends to transfer by these presents :
(i) Ail the buildings and immovable structures on the said demised land:
(ii) The said premises No. 1;
(iii) The said premises No. 2, in favour of the Purchaser free from all encumbrances for which the Vendor and the Purchaser have agreed to apportion the consideration at Rs. 7.5 Crores (Rupees Seven Crore fifty lacs only).
NOW THIS INDENTURE WITNESSETH AS under:–
1. That in consideration of the sum of Rs. 7.5. Crores (Rupees Seven Crore Forty Lacs only) paid by the Purchaser to Vendor as part of the consideration for transfer of the Fertilizer Business as aforesaid, the receipt whereof the Veridor doth hereby admit and acknowledge to have received, the Vendor doth hereby grant, transfer, convey, assure, assign unto and in favour of the Purchaser herein ALL THAT the said premises. No. 1 and 2 and the said immovable buildings and structures, more fully particularly described in the First Schedule Second Schedule and Third Schedule hereunder written, to have and to hold upto the Purchaser the said premises and immovable structures absolutely and for ever free from all encumbrances, charges, lines, lispendens, attachments, trusts of whatsoever nature, subject, however, to certain common easements and convenants with respect to the said premises No. 2, more fully described in the Deed of Conveyance dated 3rd October, 1985.”
“THE THIRD SCHEDULE ABOVE REFERRED TO” Contains “all the buildings and other immovable structures more fully described in the plan annexed hereto and thereon situate upon all that piece and parcel of land admeasuring 243.4387 acres in the aggregate.
Block, A Panki Pandhu Scheme No. 40, Kanpur comprising.
(a) Land measuring 241.7726 acres at plot No.2.;
(b) Land measuring 1.0331 acres at plot No. 2-B; and
(c) Land measuring 0.633 acres at plot No. 5.”
Considering the intentions of the parties as expressed in the deed of conveyance itself, I find it difficult to accept the contention of the learned counsel for the petitioner that the plant and machinery were transferred and title thereto vested in CCFC independently of the conveyance deed dated 9th day of June, 1994 and/or that Clause 13 of the conveyance deed dated 9-6-1994 does not comprehend transfer of plant and machinery of the Fertilizer Factory. The conveyance deed if read as a whole in correct perspective would lead to an inescapable conclusion that right, title and interest of the transferor in the plant and machinery of the Fertilizer Factory stood transferred to and vested in the Purchaser as result of conveyance deed and, therefore, the stamp duty would be chargeable in relation to value of the plant and machinery as well for aconjoint reading of clauses 10 and 11 of the conveyance deed makes it abundantly clear that the ‘Fertilizer Factory’ of the vendor stood transferred and vested unto Purchaser with effect ‘from the Transfer Date’, namely 11th Dec. 1993, the date with effect from which Sub-lease of the demised land became effective. The right, title and interest of the vendor in the ‘Fertilizer Business’ including ‘Fertilizer Factory’ was admittedly not created in favour of the Purchaser by means of the deed of Sub-lease dated 10-12-1993 and it is on the basis of the conveyance deed in question that the right, title and interest of the vendor in the Fertilizer Business including ‘Fertilizer Factory’ stood transferred to and vested in the vendor with effect from 6 a.m. of 11-12-1993, as would be evident from the expression “from the date the Fertilizer Factory of the vendor is transferred to and vested unto the Purchaser.” used in Clause 10 of the conveyance deed. The transfer of the “Fertilizer Factory’ sans plant and machinery is indeed inconcievable. The plan referred to in the IIIrd Schedule clearly indicates that the plant and machinery were as much the subject matter of conveyance as premises No. 1 and premises No. 2 and other immovable structures on “the said demised land” which was subject matter of the Sub-lease dated 10-12-1993. The term “the said demised land” means, according to Clause 8 of the conveyance deed, “the portion of land measuring 243.4387 acres equivalent to 985152.50 sq. meters which was agreed to be transferred together with the Fertilizer Factory and immovable structures thereon comprising the Fertilizer Business of the Vendor”. Tt may be pertinently observed that even according to Clause 4 of Chapter II of the agreement pursuant to which the deed in question was executed, “CCFC shall be deemed to have acquired the Fertilizer Business as a going concern on the Transfer Date” and “ICI shall execute necessary deeds, assignment and/or conveyances as may be necessary for transferring and vesting in CCFC title to the Fertilizer Business”. The term “Transfer Date” according to Clause 11 of the conveyance deed, has been taken to be 11th day of Dec. 1993. In this view of the matter. I am of the view that right, title and interest of the vendor in plant and machinery relating to the “Fertilizer Factory.” stood transferred to and vested in the vendee as a result of conveyance deed in question and not otherwise. It may be worthwhile to observe that according to Section 2(1) of the Indian Stamp Act, 1899 “conveyance” includes conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and is not otherwise specifically provided for by Schedule, Schedule I-A or Schedule I-B, as the case may be. “Instrument”, according to Section 2(14) of the Act, includes every document by which any right or liability is or purports to be, created, transferred, limited extended, extinguished or recorded. Therefore, even recording of an earlier transfer of property by delivery of possession may, in a given case, bring the document/deed within the purview of the term “instrument” chargeable to stamp duty. Considering the language employed in the deed in question and the provisions of law aforestated, I am of the considered view that the deed in question comprehends transfer, inter vivos, of plant and machinery as well pertaining to the Fertilizer Business and, stamp duty is chargeable on the value thereof and there is no merit in the contrary submission.
No other point was pressed and in view of the above discussion, the writ petition is liable to be dismissed.
In the result the petition fails and is dismissed with costs on parties.