Commissioner of Income Tax-Iii v. M/S Sumitomo Corporation

ORDER o/o

16.11.2015

¶1Theseappealsby the Revenueare directedagainstacommonorderdated February2014 passedby the IncomeTax AppellateTribunal(TTAT') in ITA Nos. 3943, 3944 & 3945/Del/1999relatingto the AssessmentYears ('AY')1992-93,1993-94, 1996-97,and, ITANos. 5882 and 5883/Del/1998, relatingto the AYs 1994-95and 1995-96.

¶2By order dated 19'^ May 2015, while admitting these appeals, the followingquestionoflaw was framedfor consideration: Did the ITAT fall into error in holding that the fee for technicalservicesreceivedby the assesseefrom M/s. Maruti UdyogLimitedwas not taxableby reasonofArticle12(2)of the Double Taxation Avoidance Agreement?

¶3The RespondentAssessee is a company incorporatedin Japan and is being assessed to tax in Japan. The Assessee supplies equipments from Japan on the basis of the global tenders floated by Maruti Udyog Ltd. ('MUL'). The supplies were made against separate and independent purchaseorders('POs')issuedby MUL. SeparatePOs were also raisedfor "supervision and installation". According to the Assessee, neither the ITA Nos. 714,716,717,719&789/2014 of18 moniesreceivedfor the supplies,nor the supervisionfee is taxableinIndia as supervisionfee is integral to the provisionof supplies. However, the Assessee accepted the Revenue's contention that the supervisionfee is taxablein Indiaas fee for technicalservices(FTS) in terms of Article12(5) of Double Taxation Avoidance Agreement ('DTAA') between India and Japan.

¶4In the assessmentordersdated 27^^ March 1997 and 23'^^ March 1998 for the AYs 1994-95 and 1995-96 respectively,the AssessingOfficer('AO') held thatthe FTS was taxableas businessincomeunderArticle7 read with Article 12(5) of the DTAA.

¶5At this stage,itrequiresto be notedthat it is the caseofthe Assesseethat it had no permanentestablishment('PE')in Indiaas far as offshoresupplies made of equipmentand spares was concerned.Pursuantto the approval grantedby the ReserveBankofIndia('RBI'),the Assesseehas beenhaving aliaisonoffice('LO')in New Delhisince 1956.Ithas sub-LOsin Mumbai, Chennai, Bangalore and Calcutta. After the introductionof the Foreign ExchangeRegulationAct, 1973 ('FERA'),the LO was grantedan extension oflicenceby a letterdated 17* February1976. It was permittedto carrying liaisonactivitiessubjectto the followingconditions: "(i) The entire expenseof the LO will be met exclusivelyout ofthe remittances received from abroad;

(ii) no commission/feewill be charged or any other remuneration receivedfor theliaisonactivitiesto berenderedbythe Indianoffices;

(iii) Excepting the said liaison work, the Indian offices will not ITA Nos. 714,716,717,719 & 789/2014 I j •/3 undertakeany activityof a trading, commercialor industrialnature withoutthe priorpermissionof the RBI."

¶6Evenpriorto the executionofthe DTAAbetweenthe Indiaand Japanin 1989,an issuehad arisenas towhetherthe profitsearnedby the Assesseeon the equipmentssold by it from Japan on aprincipal-to-principalbasis,free on board ('FOB') foreign port to an Indian buyer, was chargeableto tax underthe Act. The Assesseehad fileda writpetitionagainstthe IncomeTax Department('Department')in late 1970.Pursuantthereto,acompromisewas arrivedat, the terms ofwhichwere crystallizedin aletterdated 19'*' March 1980ofthe Department.The termsprovidedthatthe Assessee'sLO in India wouldpaytax on the profitsin respectofall importsinto India,applyingthe following formula: "One third (33 1/3 per cent) of the profits arising out of the imports from Japan to India worked out on the basis of the turnover in India, multipliedby the net profit rate of the world income."

¶7It is not in disputethat in terms ofthe above formula,the Assesseehas beenpayingtaxes on its earningsarisingout ofthe importsto India.At that stage, the conceptof PE was not in vogue. The DTAA betweenIndia and Japan came into force from 29'^ November1989. Article 12 of the DTAA, the relevantportionsofwhichpertainsto paymentofroyaltiesand fees for technical services, reads as under: Article 12

1.Royalties and fees for technical services arising in a Contracting State and paid to a resident of the other contractingStatemay be taxedin thatotherContractingState. ITA Nos. 714,716,717,719&789/2014 ^"8^^ Ia

¶2However,such royaltiesand fees for technicalservicesmay also be taxed in the ContractingState in which they arise and accordingto the laws of that ContractingStage, but if the recipientis the beneficialowner of the royaltiesor fees for technicalservices,the tax so chargedshall not exceed20% of the grossamountofthe royaltiesor fees for technicalservices.

¶3The term"royalties""asusedin this Articlemeanspayments of any kind receivedas a considerationfor the use of, or the rightto use, any copyrightofliterary,artisticor scientificwork includingcinematographfilms and films or tapes for radio or television broadcasting, any patent, trade mark, design or model,plan, secretformulaorprocess,orfor the use of, or the right to use, industrialcommercialor scientificequipment,or for informationconcerningindustrial,commercialor scientific experience.

¶4The term "fees for technical services" as used in this Article means payment of any amount to any person other than paymentsto an employeeofa personmakingpayments and to any individualfor independentpersonalservicesreferredto in Article14, in considerationfor the servicesof a managerial, technical or consultancynature, includingthe provisionsof services of technical or other personnel.

¶5The provisionsofparagraphs1 and 2 shall not apply ifthe beneficialownerof the royaltiesor fees for technicalservices, being a residentofa ContractingStage, carrieson businessin the other ContractingState in which the royaltiesor fees for technical services arise, through a permanent establishment situatedtherein, or performs in that other ContractingStage independentpersonal services from a fixed base situated therein,and the right,propertyor contractin respectof which the royalties or fees for technical services are paid is effectivelyconnectedwith such permanent establishmentor fixed base. In such case, the provisionsof Article7 or Article 14, as the case may be, shall apply." ITA Nos. 714,716,717,719&789/2014 6of18

¶8In terms of Article 7(1), unless the enterprise(i.e. the Assessee) of a contractingstate (i.e. Japan), carries on the business in 'other contracting stage' (i.e.,India)througha PE situatedin India,the profitsofthe Assessee would be taxableonly in Japan. Where the Assesseehas a PE in Indiathe profits"as is directlyor indirectly"attributableto the PE will be taxed in India.

¶9Article 5 of the DTAA defines a PE. Under Article 5 (1) a PE means "a fixedplaceofbusinessthroughwhichthe businessofan enterpriseis wholly or partly carried on." Article 5(2) to 6) which is relevantfor the present purposes reads as under; "2. The term "permanentestablishment"includesespecially;

(a) a place of management;

(b) a branch;

(c) an office;

(d) a factory;

(e) a workshop;

(f) amine,an oil or gas well,aquarryor any otherplaceofextraction of Natural resources;

(g) Awarehousein relationto apersonprovidingstoragefacilitiesfor others;

(h) a farm, plantationorotherplacewhereagriculture,forestry, plantationorrelatedactivitiesare carriedon; ( i ) a storeor othersalesoutlet;and Q) an installationor structureusedfor the explorationofnatural resources,butonlyif so used for aperiodofmorethansix months.

¶3Abuildingsite orconstruction,installationorassemblyproject constitutesapermanentestablishmentonlyifitlastsfor morethansix months. ITA Nos. 714,716,717,719&789/2014 P"Se 7of18 c

¶4An enterpriseshallbedeemedtohave apermanentestablishmentin a contractingState and to carry on businessthroughthat permanent establishmentif it carrieson supervisoryactivitiesin that Contracting State for more than six months in connection with a building site or construction, installation or assembly project which is being undertaken in that Contracting State.

¶5Notwithstandingthe provisionsof paragraphs3 and 4 an enterprise shall be deemedto have a permanentestablishmentin a Contracting Stage and to carry on businessthroughthat permanentestablishment if it providesservicesor facilitiesin that ContractingState for more than six months in connection with the exploration, exploitation or extraction of mineral oils in that Contracting State.

¶6Notwithstandingtheprovisionsoftheproceedingparagraphsofthis article,the term "permanentestablishment"shall be deemed not to include

(a) the use offacilitiessolelyfor the purposeof storageor displayof goodsor merchandisebelongingto the enterprise;

(b) the maintenanceof a stockofgoods or merchandisebelongingto the enterprisesolelyfor thepurposeofstorageor display;

(c) the maintenanceof a stockof goods or merchandisebelongingto the enterprise solely for the purpose of processing by another enterprise;

(d)Themaintenanceofa fixedplaceofbusinesssolelyfor the purpose ofpurchasinggoods or merchandiseor ofcollectinginformation,for the enterprise;

(e) the maintenanceofa fixedplaceofbusinesssolelyfor the purpose of carryingon, for theenterprise,any otheractivityof a preparatoryor auxiliary character".

¶10The case of the Assessee has been that, as far as the supplies of equipmentare concerned,it has no PE in India. The LO ofthe Assesseein India was communicating information regarding publication of global tendersinvitedby MUL tothe headoffice.The bid wouldbe submittedonly by the head office in Japan. The head office through its personnel from ITA Nos. 714,716,717,719&789/2014 Page8of18 Japan would visit India and after discussionwith MUL would conclude contractsfor the supplyof equipments.The Assessee'shead officesecured 10 contractsfor the supplyof equipmentsduringAY 1994-95, 25 contracts inAY 1995-96,five contractsinAY 1992-93,1contractinAY 1993-94and four contracts in AY 1996-97. Under some of the contracts, the Assessee was only to supply equipmentsand in some other contracts,it was also to supervisethe installationofthe equipments.In some ofthe contracts,the MUL carried out the actual installation while the Assessee supervised such installation.

¶11Anotherfactorthatrequiresto be noticedis that duringthis very period, the Assesseestartedexpandingits activitiesin India and establishedproject offices for the following three separate projects:

(i) AprojectatRaichurwiththe KamatakaPowerCorporation

(ii) A projectat Basin in TamilNadu.

(iii) A paint tod assemblyshop for MUL.

¶12The last mentionedprojectoffice was establishedwith the approvalof the RBI dated 15^^ September1992 grantedunder Section29(1) (a) of the FERA. This was for the purposes of designing, engineering,supply and installationof the YE2 carproject,whereunderthere would be expansionof the car productionbetween 70,000to 90,000 cars per year. ITA Nos. 714,716,717,719& 789/2014 Page9of18 t %

¶13For AY 1994-95,the Assesseefiled its return of income disclosingan incomeofRs.3,49,82,616.The AssesseereceivedFTS for supervisionofthe installationofthe machineryand equipmentssuppliedby it to MUL in the sum ofRs.2,35,86,939.By aletterdated IS^''July 1996,the AO calledupon the Assesseeto explainas to why the said sum receivedas FTS shouldnot be offeredto tax by the Assessee.By a reply dated 5^^ August 1996, the Assessee informed the AO that MUL had deductedtax at source on the FTS paid to the Assesseeat 30.25 %. Accordingly,the Assesseewas under the impressionthat the fee which was already subjectedto TDS need not be shown or declared in the return of income. The Assessee nevertheless assured that it would declare hereafter such income in its return of income.

¶14By a letterdated 19^*" August 1996, the Assesseelistedall the ten POs obtained in the AY under consideration, in terms of which it supplied machineryand equipmentsand also undertooksupervisionand installation of the plant and machinery.The Assesseecontendedthat each contractfor supply and supervisionof installationwas independentand separate. The technicalaspectsoftheworkinvolvedineachofthecontractswere different and varied. In other words, notwithstanding that the contracts were with MUL, the period for which the supervisoryactivitieswere carriedout was less than 180 days for each contract. It was contendedthattherewas no PE of the Assessee in India vis-a-vis the rendering of the supervisory services to MUL.

¶15The Assessee contendedthat for the projects being executed by it with KamatakaPower Corporationtd. (RaichurProject) and with Tamil Nadu ITA Nos. 714,716,717,719& 789/2014 Page10of18 ElectricityBoard(BasinBridgeProject)there were PEs. It was pointedout that the income from the said projects was being taxed under Section 44BBB of the Act. It was stated that the contract with MUL was in no manner connected with the projects at Raichur and Basin Bridge. The contention of the Assessee was that the tax on the fee received had to be taxed at 20 % in terms of Article 12(2) of the Indo Japan DTAA and not at

30.25% under Article 12 (5) of the DTAA.

¶16The AO held againstthe Assesseeandthe Commissionerof IncomeTax ;CIT (A)] affirmedthe said additionsmade by the AO. Penaltyproceedings was also initiated for AYs 1992-93 and 1993-94 holding the FTS as business income under Article 7 read with Article 12(5) of the DTAA. The Assessee preferred an appeal before the ITAT.

¶17Beforethe ITAT, at the instanceof the Assessee,an additionalground was framedon 15*July2003 as under: "Whether on the facts and in the circumstances of the case in law, the supervisionfees earned on account of the supply of equipmentcouldbe taxed as 'Tees for technicalservices",even though they are integral and incidental to the supply of equipment,sincethe supervisionfees receivedby it on account of the supply of equipment are inextricablyand essentially linked to the supply of equipment, and hence, should in all fairness partake the same character as the supply of the equipment as it is nothing else but a supply of equipment simpliciter".

¶18By orderdated31'^May 2007,the ITAT heldthatthe supervision fee is taxable under Article 12(2) since the Assessee did not have a PE and the JTANos. 714,716,717,719 & 789/2014 Page 11 of18 ^t> supervisoryactivitiesin respectof the installationof the equipments were not "effectivelyconnected"to PE in India in terms of Article 12(5) of the DTAA. As regardsthe additionalgroundpermittedby the ITATto beurged by order dated 15"" July 2003, the ITAT held that necessaryfacts were not available on record in order to establish whether the supervision activities were inextricablylinkedto the supplyof equipmentand shouldbetreatedin the same manneras the supplyof the equipmentsitself.Thus the additional groundwas not disposedof. The Revenuefiled an appealbeforethis Court onthe questionwhetherthe supervisionfee istaxableunderArticle12(2)or under Article 7 read with Article 12(5) of DTAA. The Assessee filed a cross-appealon the questionwhetherthe ITAT ought to have decidedthe additional ground raised by it.

¶19Whilehearingbothsets ofappealstogether,this Courtby orderdated6^ April 2009 held that the ITAT oughtto have decidedthe additionalground and accordinglyremandedthe matterto the ITAT for that purpose. While disposingof both sets of appeals,this Court formulatedthe questionto be decided by ITAT as under: "Whether in the facts and circumstances of the case "fees for technicalservices"(FTS) receivedby the Assesseefrom Maruti Udyog Limited was taxable under Articles 12(2) or 12(5) read with Article 7(3) of the Indo-JapanDouble TaxationAvoidance Agreement."

¶20On remand,the ITATheldby the orderdatedIT^ February2014thatthe Assessee had no PE in India and that the supervisory services were not ITA ms. 714,716,717,719&789/2014 Page12 of18 ( y connected through any of its other PE in India and that since the supervision fee was earned in India it is taxable under Article 12(2) of DTAA at 20%.

¶21Againstthe aforementionedorderof the ITAT,the presentappealshave been filed by the Revenue.

¶22The Court has heard the submissions of Ms. Suruchi Aggarwal, learned Senior Standing counsel for the Revenue and Mr. C.S. Aggarwal, learned Senior counsel for the Assessee.

¶23It was first submitted by Ms. Suruchi Aggarwal that the concurrent findingsof both the AO and the CIT (A) were that the Assesseehad its PE in India. It was admitted by the Assessee during the course of assessment proceedingsthat there were multiple contracts all related to MUL. The Assessee's office in India agreedto the deduction of TDS at 30.25% which in fact would locate the transaction within Article 12(5) read with Article 7(3) of the DTAA. It was furthersubmittedthat a perusalof the POs placed by the MUL on the Assessee,which have been set out in a tabularform in the earlierorder dated 31®' May 2007 passedby the ITAT, would show that the specification of days of supervision was essentially the basis for calculationof supervisionfees which was one of the componentsof the order. The other componentwas the supply of the equipmentsitself. Some of the orders,havingthe value of Rs. 100-200crores,involvedman days of 478, 364 and 730. While the ITAT answered the question for the AY 1995-96, it remandedthe matter to the AO on the ground that the facts on record were not sufficient to come to a definite conclusion. It was further submitted ITA Nos. 714,716,717,719& 789/2014 Page 13of18 ( ( that the supervision fees were related to the YE2 car project which was a separateproject for which the Assesseehad a project office. The LOs were not merely collecting informationor carrying on an activity of a preparatory or auxiliary nature but were actively associated with the said project. The fact that the LO had written to MUL regarding TDS in respect of the contracts also showed the nature of its involvement in the projects. Therefore, the LO was in fact its PE. Finally, it was submitted that there was no requirementin terms of Article 5 (4) of the DTAA that the PE should carry on the supervisory activities for six 'continuous' months. It was enough if the aggregate period for which the supervision took place was six months or more.

¶24In reply, Mr. C.S. Aggarwal, learned Senior counsel for the Assessee, referredto the earlierfindingsrenderedinthe orderdated 31®^ May 2007 of the ITAT which according to him bore the reiteration by the ITAT in the presentimpugnedorder. He referredto the differencein the wordingof the DTAA between India and Japan as compared with the corresponding clauses of the DTAAs with other countries, which showed that where it was intended that the computationof the six months period for the purposes of determining whether there was a PE had to be in the aggregate and not continuous the relevant clause in the DTAA expressly stated so. He also submittedthat the theory of 'force of attraction' would not apply. In other words, there were separatePOs relatingto other projectsundertakenby the Assessee and there could be no presumption that the LOs were 'effectively connected' with the saidprojectoffices.He supportedthe impugnedorderof the ITAT and submitted that the FTS in the present case was taxable under ITANos. 714,716,717,719& 789/2014 Page 14 of18 Article 12(2)at 20%. As regardsthe allegedadmissionby the Assesseethat there it could be taxed at 30.25%, Mr. Aggarwal pointed out that apart from the fact that the Assessee had retracted such admission, MUL had a legal obligation,withoutreferenceto the Assessee,to deductTDS from the FTS paid. This by no means precluded the Assessee from challenging the applicability of the rate of TDS at 30.25%.

¶25As far as the questionframed by this C9urt is concerned,the issue that arises is whether the TDS from the FTS paid by MUL to the Assessee should be 20% in terms of Article 12(2) or 12(5) read with Article 7 of the DTAA?This in turn raisesthe questionof whether,for the activityof supply of equipmentsby the Assesseeto MUL, with or withoutsupervisionof the installation, it could be said that the Assessee had a PE in India?

¶26Under Article 7 of the DTAA, the Assessee would be liable to pay taxes in India if it carried on the business through a PE. The part played by the PE in the transactions in question would determine the extent to which the profits from such transactionscan be attributedto the PE. Article 5 of the DTAA is relevant for determining whether the Assessee could be said to have a PE in India.

¶27Article 12(5) of the DTAA is on the lines of the OECD Model Convention. It is noticed that the clause in the OECD Model Convention allowsthe State,wherethe PE is located,to "to tax onlythoseprofitswhich are economicallyattributableto the PE." The clause makes a distinction between those incomes which are the result of activities of the PE and the ITA Nos. 714,716,717,719& 789/2014 Page15of18 2>l income that arises by reason of direct dealings by the enterprise from the head office without the aid or assistance of the PE. Thus, Article 12(5) adopts the "no force of attractionprinciple".The rationalebehindthe said rule was to avoid restrictingentrepreneurialfreedomof disposition"through fictitiouslyallocating profits by way of generalizingstandards".Another principleis that the "material date for determinationof accrual of income arisingthroughthe PE is the existenceof the PE at the time when whatever decisively caused the profits to accrue, actually occurred." The income producingactivitiesshouldbe connectedwith the PE not only economically but also in substance.

¶28It was in the above backgroundthat the ITAT examined each of the POs for the various AYs in a tabular form. On examination of the POs, a common feature which emergedwas that the supervisors were to come from Japan and MUL had to bear the cost of their air tickets as well as their boardingand lodgingin India. The period of supervisionin the case of the individual contracts did not exceed the period of 180 days. In other words, they did not constitutea supervisoryPE in terms of Article 5(4) of the DTAA.

¶29As far as the FTS paid to the Assesseefor the supervisoryservicesis concerned, there was no effective connectionbetween the execution of the POs for supply of equipmentand supervisionof their installation,and, the project office for the paint and assembly shop of the YE2 car project of MUL. Additionally,as pointed out by Mr. Aggarwal,the supervisoryfee paid by MUL was on the basis of "man days". The number of days per ITA Nos. 714,716,717,719& 789/2014 • > c supervisor was calculated by dividing 'man days' by the 'number of supervisors'.If 10 supervisorshad stayedfor 100 man days, the supervision period would be 10 days only, though the 'man days' are 100. Thus, the periodof staywouldbe onlyof 10days andnot 100days.

¶30As regards the contentionthat the Assesseehad concededthe position that IVIUL could deduct tax at 30.25%, it is seen that the LO only facilitated the communication between the head office and MUL. The explanation that its letter on the rate of TDS was given only to expedite the payment from MUL, appearsplausible.The Assesseeofferedthe FTS to tax at 20% and claimed refund. The Court is unable to view the aforementioned communication of the Assessee to MUL as an estoppel against the Assessee from claiming to be taxed in accordance with law.

¶31A comparisonoftherelevantportionsof Article5 of the DTAAbetween the India and Japan with the correspondingclause in some of the DTAAs entered into by India with other countriesshows that where it is intended that the computationof the periodof the six monthsperiodfor determining whether an Assessee can be said to have a PE should be in the aggregate, i.e. not 'continuous', the DTAA itself provides for it. From the wording of the Article5 of the DTAAin question,it is not possibleto acceptthe plea of the Revenuethatthe supervisoryactivitiesneednothave been canied onfor six continuous months.

¶32For the aforesaid reasons, the Court concurs with the views of the ITAT that in the presentcase the FTS was liableto be taxed at 20% underArticle ITA Nos. 714,716,717,719& 789/2014 Page17of 18 li 12(2) of the DTAA. The questionis accordinglyansweredin the negative, i.e. in favour of the Assessee and against the Revenue.

¶33The appeals are accordinglydismissed. S.MURALIDHAR, J VIBHU BAKHRU, J NOVEMBER 16, 2015 mg r-- ITA Nos. 714,716,717,719&789/2014 Page18 of18

() * IN THE HIGH COURT OF DELHI AT NEW DELHI 10-14. + ITA 714/2014 COMMISSIONER OF INCOME TAX-III Appellant Through: Ms Suruchi Aggarwal, Senior Standing Counsel, Mr Abhishek Sharma, Ms Radhika Gupta, Mr Rajesh Kumar and Ms Lakshmi Gurung, Advocates. versus M/S SUMITOMO CORPORATION Respondent Through:Mr. C.S. Aggarwal,SeniorAdvocate with Mr. Prakash Kumar, Advocate. With + COMMISSIONEROF INCOMETAX-III Appellant Through: Ms Suruchi Aggarwal, Senior Standing Counsel, Mr Abhishek Sharma, Ms Radhika Gupta, Mr Rajesh Kumar and Ms Lakshmi CJ Gurung, Advocates. versus M/S SUMITOMOCORPORATION Respondent Through:Mr. C.S. Aggarwal,SeniorAdvocate with Mr. Prakash Kumar, Advocate. With + ITA 717/2014 COMMISSIONEROF INCOMETAX-III Appellant ITA Nos. 714,716,717,719&789/2014 P'^Se1of18 Through: Ms Suruchi Aggarwal, Senior Standing Counsel, Mr Abhishek Sharma, Ms Radhika Gupta, Mr Rajesh Kumar and Ms Lakshmi Gurung, Advocates. versus M/S SUMITOMOCORPORATION Respondent Through:Mr. C.S. Aggarwal,SeniorAdvocate with Mr. Prakash Kumar, Advocate. With + ITA 719/2014 COMMISSIONEROF INCOMETAX-III Appellant Through: Ms Suruchi Aggarwal, Senior Standing Counsel, Mr Abhishek Sharma, Ms Radhika Gupta, Mr Rajesh Kumar and Ms Lakshmi Gurung, Advocates. versus M/S SUMITOMOCORPORATION Respondent Through;Mr. C.S. Aggarwal,SeniorAdvocate with Mr. Prakash Kumar, Advocate. And + ITA 789/2014 COMMISSIONEROFINCOMETAX-III Appellant Through: Ms Suruchi Aggarwal, Senior Standing Counsel, Mr Abhishek Sharma, Ms Radhika Gupta, Mr Rajesh Kumar and Ms Lakshmi Gurung, Advocates. versus ITA Nos. 714,716,717,719&789/2014 2of18 M/S SUMITOMOCORPORATION Respondent Through:Mr. C.S. Aggarwal,SeniorAdvocate with Mr. Prakash Kumar, Advocate. CORAM: JUSTICE S. MURALIDHAR JUSTICE VIBHU BAKHRU