Calcutta High Court

Indcom vs Commissioner Of Income-Tax (Tds) on 18 May, 2011

I.T.A. No.121 OF 2004

This appeal under Section 260A of the Income-tax Act ("Act") is at the instance of an assessee and is directed against an order dated November 05, 2003 passed by the Income-tax Appellate Tribunal, "C" Bench, Kolkata, in Income-tax Appeal bearing ITA No.2094/Kol/2002 for the Financial Year 1995- 96 dismissing the appeal filed by the assessee.

Being dissatisfied, the assessee has come up with the present appeal.

The facts giving rise to filing of this appeal may be summed up thus:

a) The assessee is a Committee of the Board of Control for Cricket in India (hereinafter referred to as "BCCI") and the present appeal arises out of the proceedings initiated under Section 201 read with Sections 194E and 115BBA of the Act for the Financial Year 1995- 96.

b) The cricket playing countries of the world are the members of International Cricket Council ("ICC"). Some are full members and some are associate members. The World Cup is the property of ICC and ICC decides as to which cricket playing country/countries should host the World Cup competition held every four years.

c) ICC held a special meeting on February 2, 1993 in London to decide the venue of 1996 World Cup Competition. At the said meeting, Pakistan, India and Sri Lanka were selected to have the privilege of co-hosting the competition and for grant of the said privilege, Pakistan, India and Sri Lanka made a financial offer and/or bid of £50,00,000 which was accepted at the said meeting. Payments required to be made in terms of the bid by the three host countries to ICC and to the participating and non-participating countries were decided and/or approved by ICC at London at the said meeting.

d) It was decided that there should be 37 matches in the competition of which it was agreed that India would host 17, Pakistan 16 and Sri Lanka 4 matches. Each country was concerned with only the leg of the tournament being played in that country and the expenditure and the receipts relating thereto and the surplus/deficit there from but was to co-ordinate with each other so that the competition went off smoothly.

e) After the selection of three countries as co-hosts, in order to facilitate co-ordination between them, a committee formed consisting of representatives of BCCI, the Board of Control for Cricket in Sri Lanka, Pakistan Cricket Board and ICC. The said committee was initially named as Pak-Indo and Lanka Joint Management Committee and subsequently referred to as Pak-Indo-Lanka Committee abbreviated to Pilcom.

f) Each country was required to bear and pay the expenses incurred for matches played in that country and was entitled to the receipts flowing from such matches. However, there were certain common expenses, viz. for bringing the teams to the sub-continent, payments for bid money to ICC and non-participating and participating countries, expenses and fees of Umpires and Referees, Administrative expenses of teams, prize money, cost of cricket balls, etc. ('common pool expenses'). Similarly, there were certain receipts such as for International T.V. rights and title sponsorship etc.

('common pool receipts') which were paid by the persons concerned in lump sum for all the world cup matches wherever played. It was in order to facilitate the collection of such receipts and payment for expenses that the Committee PILCOM opened bank accounts including at London. The Committee PILCOM was to maintain an account of such common pool receipts and expenses only for the sake of convenience.

g) Whatever amount passed through the hands of the Committee PILCOM did not belong to it and was not on its own account but was for or on account of the Indian Board or the Pakistan Board or the Sri Lanka Board as the case may be in accordance with their respective entitlements/obligations. No part of the amounts received or disbursements made by the said committee were for or on its own account.

h) To host the World Cup matches in India as co-host, BCCI appointed its own committee for discharge of its responsibilities and functions. BCCI in its special general meeting held on May 14, 1993 appointed Sri Madhav Rao Scindia as the Chairman of such committee giving him a free hand to nominate the other members. All the members of the said committee were members of BCCI and Sri K. L. Chiugh, who represented the sponsor of ITC Ltd. was a special invitee. The said committee for convenience and reference came to be referred to as INDCOM.

i) For the purpose of disbursement of administrative expenses of teams, Umpires and Referees' fees and prize money in respect of the matches to be played in India, amounts were transferred from PILCOM's London Bank Account to the foreign currency account of INDCOM with Indian Overseas Bank.

j) On May 6, 1997, two orders were passed by the Income-tax Officer in the names of INDCOM and PILCOM holding that they were liable to deduct the tax under Section 194E of the Act. The amount in respect of INDCOM was quantified by the Income-tax Officer at Rs.8,95,896.15 as representing the tax which should have been deducted at source in respect of payment made towards team administrative expenses, fees paid to Umpires and Referees and prize money.

k) Being dissatisfied, the assessee preferred an appeal and the Commissioner of Income-tax (Appeals) by two separate orders both dated November 17, 1997 rejected the appeals of INDCOM and PILCOM against the said order dated May 6, 1997.

l) On appeal, Income-tax Appellate Tribunal disposed of the appeals of INDCOM and PILCOM against the said orders dated November 17,1997 accepting their preliminary contention that natural justice was violated in passing the orders dated November 17, 1997 inasmuch as the appellants were not granted any opportunity to make their submissions in respect of the contention of the Income-tax Officer contained in his letter dated July 30, 1997 and urged by him at the hearing granted to him on that day by the Commissioner of Income tax (Appeals). The Tribunal did not decide the matter on merits and directed that the appeals should be re-decided after affording an opportunity of hearing to the appellants in respect of the submissions/arguments made by the Income-tax Officer.

m) Thereafter, the Commission of Income-tax (Appeals) took up both the appeals of INDCOM and PILCOM. The appellants were provided with copies of the para-wise comments dated July 30, 1997 of the Income-tax Officer and by an order dated December 28, 1998, the Commissioner of Income-tax (Appeals) decided the PILCOM's appeal.

n) On an appeal by the appellant, the Tribunal by order dated January 4, 2000 decided the appeals of the department as well as PILCOM against the said order dated December 28, 1998 of the Commissioner of Income-tax (Appeals). The Tribunal, inter alia, held that only the payment made to the cricket associations of different countries referable to the matches played by those countries in India could be considered for the purpose of tax deduction/taxation. The said order dated January 4, 2000 of the Tribunal is the subject-matter of appeal under Section 260A of the Act filed by PILCOM before this Court.

o) INDCOM's appeal was decided by the Commissioner of Income-tax (Appeals) by an order dated March 26, 2002. By the said order, the Commissioner of Income-tax (Appeals) held that payments on account of administrative expenses and prize money to the Indian team and Indian players and fees paid to Indian Umpires and Referees as also the bank charges were outside the purview of Sections 194E and 115BBA and vacated the demand in respect thereof. However, he confirmed the demand in respect of administrative expenses paid to foreign teams and fees paid to foreign Umpires and Referees for matches officiated in and outside India save and except for the modification that the proportionate amount referable to the matches played outside India was not to be taken into consideration. He also confirmed the demand in respect of prize money paid to foreign teams and foreign players.

p) Being dissatisfied, the assessee preferred an appeal before the Tribunal and the submissions of the appellants were as follows:

"(a) (i) Payments to Managers of foreign Cricket teams on account of Administrative expenses like stationery items, typing expenses, telephone calls, xerox expenses, etc. required to be incurred while a tour for the World Cup matches were not income and were also not so specified in Section 115BBA and no order for tax deduction could have been passed in respect thereof.

"ii) Further and in any event and without prejudice to the aforesaid of the 7 foreign teams to whom payments were made, India had double taxation avoidance agreements with five of them namely, Australia, Kenya, New Zealand, Holland and Sri Lanka and in view thereof, payments made to the said five Countries were not liable for Taxation/Tax-deduction in India.

"(b) (i) Umpires and Referees were not sportsman and fees paid to them did not tall within the purview of Sections 115BBA/194E.

"ii) Further and in any event and without prejudice to the aforesaid, payment of £27450 was made to Umpires and Referees of Kenya, New Zealand, Sri Lanka, United Arab Emirates and England. India had double taxation avoidance agreements with all five Countries and in view thereof, the said payments could not be subject matter of tax-liability or taxdeduction in India. The relevant provisions of the different agreements were as under:-

Country  Article  Length of Stay in India during the Previous Year for taxability.

Kenya  16  Amounting to or exceeding 183 days.

New Zealand  14  Amounting to or exceeding 183 days.

United Arab Emirates  14   Amounting to or exceeding 183 days.

Sri Lanka   14 Exceeding 120 days.

England  15 Amounting to 90 days.

According to all these articles, the amounts paid to the Umpires and Referees for matches officiated in India could be taxed in India only if they had a fixed base regularly available to them in India for the purpose of performing their activities or their stay in India amounted to or exceeded the specified number of days during the previous year. None of the nonresident Umpires and Referees had any fixed base available to him in India for the purpose of performing his activities. The stay in India of none of the umpires and referees amounted to or exceeded the specified number of days during the previous year. The entire duration of the World Cup matches played in 3(three) Countries namely, India, Pakistan and Sri Lanka was just about one month. In the circumstances, there was no question of any taxation/tax-deduction in India in respect of the said payments of £27450.

"(c)(i) Prize money paid to foreign teams and individual foreign players was not consideration paid for participation in any game and did not fall within the purview of Sections 115BBA/194E.

"(c) (ii)Further and in any event and without prejudice to the aforesaid, a sum £35,000 was paid to teams and players of Countries with whom India had double taxation avoidance agreements. In the circumstances and in any view of the matter, there could be no question of any tax liability or tax deduction in India in respect of the said payments."

q) The Tribunal, however, by order dated November 5, 2003 reiterated the findings of the Commissioner of Income-tax (Appeals) and rejected the appeal.

r) Being dissatisfied, the assessee has preferred the present appeal before this Court.

s) At the time of admission of this appeal, a Division Bench of this Court formulated the following substantial questions of law:

"i) Whether the Tribunal was justified in law in holding that payments to Managers of foreign cricket teams on account of Administrative expenses like stationery items, typing expenses, telephone calls, xerox expenses, etc. required to be incurred while on tour for World Cup matches were income or fell within the purview of Sections 5(2), 9(1) (i), 115BBA, 194E and 201(1) of the Income Tax Act, 1961.

"ii) Whether and in any event the Tribunal was justified in law in holding that the payment of Administrative expenses to the teams of Australia, Kenya, New Zealand, Holland and Sri Lanka were liable to tax in India notwithstanding the double taxation avoidance agreements between India and the said Countries and that the Article relating to entertainers/athletes was applicable.

"iii) Whether the Tribunal was justified in law in holding that umpires and referees were sportsmen or fees paid to them fell within the purview of Sections 5(2), 9(1)(i), 115BBA and 194E.

"iv) Whether and in any event the Tribunal was justified in law in holding that fees paid to umpires and referees of Kenya, New Zealand, Sri Lanka, United Arab Emirates and England were liable to taxation in India notwithstanding the double taxation avoidance agreements between India and the said Countries and that the Article relating to entertainers/athletes was applicable and not the Article relating to independent personal services.

"v) Whether the Tribunal was justified in law in holding that prize money paid to foreign teams and individual foreign players was consideration paid for participation in any game or was income or fell within the purview of Sections

2(24)(ix)/5(2)/9(1)(i)/115BBA/194E.

"vi) Whether and in any event the Tribunal was justified in law in holding that the prize money paid to teams and individual players of New Zealand, Australia, Kenya and Sri Lanka were taxable in India notwithstanding the double taxation avoidance agreements between India and the said Countries and that the Article relating to entertainers athletes was applicable."

In order to appreciate the points involved in this appeal, it will be appropriate to refer to the provisions contained in Sections 2(24) (ix), 5(2), 9(1) (i), 115BBA, 194E, 194J and 201(1) of the Income Tax Act, 1961 which are quoted below:

"2(24) "income" includes--

 (ix) any winnings from lotteries, crossword puzzles, races including horse races, card games and other games of any sort or from gambling or betting of any form or nature whatsoever;

 (2) subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever source derived which--

(a) is received or is deemed to be received in India in such year by or on behalf of such person; or

(b) accrues or arises or is deemed to accrue or arise to him in India during such year.

Explanation 1.--Income accruing or arising outside India shall not be deemed to be received in India within the meaning of this section by reason only of the fact that it is taken into account in a balance-sheet prepared in India.

Explanation 2.--For the removal of doubts, it is hereby declared that income which has been included in the total income of a person on the basis that it has accrued or arisen or is deemed to have accrued or arisen to him shall not again be so included on the basis that it is received or deemed to be received by him in India.

9. Income deemed to accrue or arise in India.--(1) The following incomes shall be deemed to accrue or arise in India--

(i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India.

Explanation.--For the purposes of this clause--

(a) in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India;

(b) in the case of a non-resident, no income shall be deemed to accrue or arise in India to him through or from operations which are confined to the purchase of goods in India for the purpose of export;

(c) in the case of a non-resident, being a person engaged in the business of running a news agency or of publishing newspapers, magazines or journals, no income shall be deemed to accrue or arise in India to him through or from activities which are confined to the collection of news and views in India for transmission out of India;

(d) in the case of a non-resident, being--

(1) an individual who is not a citizen of India; or (2) a firm which does not have any partner who is a citizen of India or who is resident in India; or (3) a company which does not have any shareholder who is a citizen of India or who is resident in India, no income shall be deemed to accrue or arise in India to such individual, firm or company through or from operations which are confined to the shooting of any cinematograph film in India;

115-BBA. Tax on non-resident sportsmen or sports associations.--(1) Where the total income of an assessee,--

(a) being a sportsman (including an athlete), who is not a citizen of India and is a non-resident, includes any income received or receivable by way of--

(i) participation in India in any game (other than a game the winnings wherefrom are taxable under Section 115-BB) or sport;

or

(ii) advertisement; or

(iii) contribution of articles relating to any game or sport in India in newspapers, magazines or journals; or

(b) being a non-resident sports association or institution, includes any amount guaranteed to be paid or payable to such association or institution in relation to any game (other than a game the winnings wherefrom are taxable under Section 115-BB) or sport played in India, the income tax payable by the assessee shall be the aggregate of--

(i) the amount of income tax calculated on income referred to in clause (a) or clause

(b) at the rate of ten per cent; and

(ii) the amount of income tax with which the assessee would have been chargeable had the total income of the assessee been reduced by the amount of income referred to in clause (a) or clause (b):

Provided that no deduction in respect of any expenditure or allowance shall be allowed under any provision of this Act in computing the income referred to in clause (a) or clause (b). (2) It shall not be necessary for the assessee to furnish under sub- section (1) of Section 139 a return of his income if--

(a) his total income in respect of which he is assessable under this Act during the previous year consisted only of income referred to in clause (a) or clause (b) of sub-section (1); and

(b) the tax deductible at source under the provisions of Chapter XVII-B has been deducted from such income.

194-E. Payments to non-resident sportsmen or sports associations.--Where any income referred to in Section 115-BBA is payable to a non-resident sportsman (including an athlete) who is not a citizen of India or a non-resident sports association or institution, the person responsible for making the payment shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct income tax thereon at the rate of ten per cent.

194-J. Fees for professional or technical services.--(1) Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident any sum by way of--

(a) fees for professional services, or

(b) fees for technical services, shall, at the time of credit of such sum to the account of the payee or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to five per cent of such sum as income tax on income comprised therein:

Provided that no deduction shall be made under this section--

(A) from any sums as aforesaid credited or paid before the 1st day of July, 1995; or

(B) where the amount of such sum or, as the case may be, the aggregate of the amounts of such sums credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed--

(i) twenty thousand rupees, in the case of fees for professional services referred to in clause (a), or

(ii) twenty thousand rupees, in the case of fees for technical services referred to in clause (b):

[Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of Section 44-AB during the financial year immediately preceding the financial year in which such sum by way of fees for professional services or technical services is credited or paid, shall be liable to deduct income tax under this section:] [Provided also that no individual or a Hindu undivided family referred to in the second proviso shall be liable to deduct income tax on the sum by way of fees for professional services in case such sum is credited or paid exclusively for personal purposes of such individual or any member of Hindu undivided family.]

Explanation.--For the purposes of this section,--

(a) "professional services" mean services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board for the purposes of Section 44-AA or of this section;

(b) "fees for technical services" shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of Section 9;

(c) where any sum referred to in sub-section (1) is credited to any account, whether called "Suspense account" or by any other name, in the books of account of the person liable to pay such sum, such crediting shall be deemed to be credit of such sum to the account of the payee and the provisions of this section shall apply accordingly. Section 201. CONSEQUENCES OF FAILURE TO DEDUCT OR PAY.

(1) If any such person and in the cases referred to in section 194, the principal officer and the company of which he is the principal officer does not deduct or after deducting fails to pay the tax as required by or under this Act, he or it shall, without prejudice to any other consequences which he or it may incur, be deemed to be an assessee in default in respect of the tax :

Provided that no penalty shall be charged under section 221 from such person, principal officer or company unless the Assessing Officer is satisfied that such person or principal officer or company, as the case may be, has without good and sufficient reasons failed to deduct and pay the tax."

A plain reading of the aforesaid provisions of the Act makes it abundantly clear that if a foreign cricket team, by virtue of agreement among the various teams of different cricket-playing countries, participates in a cricket match played in India and an agreed amount is paid to such a team for participating in such a match in the form of prize money, such prize money, whether for wining or for losing the match, will come within the term "winnings" and hence, should be treated to be "income" within the meaning of Section 2(24) (ix) of the Act. Similarly, such income should be deemed to accrue or arise in India being income accruing or arising, whether directly or indirectly, through or from any source of income in India as provided in Section 9(1) (i) of the Act.

Section 115BBA of the Act, as quoted above, explicitly makes the aforesaid income of a foreign cricket team for participating in a cricket match in India taxable being an amount payable to such association or institution in relation to any game or sport played in India.

Mr. Bajoria, the learned Senior Advocate appearing on behalf of the appellant, in this connection, tried to impress upon us that the money paid to the manager of a foreign team for meeting the administrative expenses, such as, stationery items, typing expenses, telephone calls, xerox-expenses, etc. required to be incurred while on tour for World Cup matches, would not fall within the scope of taxable income and thus, his client had no duty to deduct tax from that amount paid to the team at the source. In our opinion, such contention is not tenable for the simple reason that it was the appellant who made a lump sum amount to the team-manager and as indicated in the proviso to Section 115BBA (1) of the Act, no deduction in respect of any expenditure is permissible for calculation of the income under the said provision from the total amount received by the foreign team for such participation. Thus, in our opinion, the additional amount paid in form of the alleged "administrative expenses" was really part of the prize money allotted to the teams. It goes without saying that prize money is payable also to a losing team, although, at a lesser rate.

In the case of GE India Technology Centre P. Ltd. Vs. CIT and another reported in (2010) 327 ITR 456(SC) and relied upon by Mr. Bajoria, it was pointed out that Section 195(1) of the Act uses the expression "sum chargeable under the provisions of the Act" and there is no necessity to give weightage to those words. Further, it was held that Section 195 of the Act uses the word "payer" and not the word "assessee" and the payer is not an assessee. The payer, the Court proceeded, became an assessee-in-default only when he failed to fulfil the statutory obligation under Section 195(1). If the payment does not contain the element of income, according to the said decision, the payer cannot be made liable and be declared to be an assessee-in-default.

In the case before us, we have already pointed out that the amount paid to the foreign team for participation in the match in India in any shape, either as prize money or as the administrative expenses, is the income deemed to have accrued in India and is taxable under Section 115BBA and thus, Section 194E is attracted. Thus, the said decision does not help the appellant in any way.

We, therefore, find no substance in the aforesaid contention of Mr. Bajoria that the prize money or the purported administrative expenses are not taxable in India and consequently, his client had no liability to deduct at source under Section 194E of the Act.

We, however, find substance in the contention of Mr. Bajoria that the payments made to the Umpires or Match Referees do not come within the purview of Section 115BBA because the Umpires and Match Referee are neither sportsmen (including an athlete) nor are they non-resident sports association or institution so as to attract the provisions contained in Section 115BBA of the Act.

Therefore, although the payments made to them were "income" which had accrued in India, yet, those were not taxable under the aforesaid provision and thus, the liability to deduct under Section 194E of the Act never accrued.

In this connection, we are impressed by the contention of Mr. Bajoria that the liability of his client to deduct amount under Section 194E arose if payments were made to non-resident sportsmen or sports associations. In our opinion, the Umpires and the Match Referee can, at the most, be described as professionals or technical persons who render their professional or technical services as Umpire or Match Referee. But there is no scope of deducting any amount under Section 194E of the Act for such payment. At this stage, it will be profitable to refer to the provisions contained in Section 194 J of the Act which casts a duty upon the payer to deduct at the rate of 5% where payment is made to a resident towards any professional or technical service rendered. It appears from the Notification No. S.O. 2085(E) dated August 21, 2008 issued under Section 194 J, Explanation (a), that the sports persons and Umpires and Referees are included within the meaning of Section 194 J with effect from the date of publication of such notification. Thus, by taking aid of such notification given effect to from August 21, 2008, there is no scope of imposing liability upon the appellant for not deducting tax under Section 194 E of the Act which is applicable to the non- resident for the period we are concerned, whereas the provision contained in Section 194 J of the Act is applicable to the cases of payments made to a resident. Thus, after August 21, 2008, the resident Umpires and Referees can come within the purview of deduction at source under the said Section 194 J. At any rate, in the case before us, we find that for the payments to Umpires and Match Referees, there was no scope of invocation of Section 195E or even Section 195J at the relevant point of time.

The next question is whether the double taxation avoidance agreements between India on one hand and the Australia, Kenya, New Zealand, Holland and Sri Lanka, on the other exempts the operation of Section 194E of the Act.

We have gone through the provisions contained in those agreements. Those agreements do not exempt the operation of the provisions contained in the Act if the tax is payable in terms of Sections 115BBA or 194E of the Act. We find that in none of those agreements, there is any provision indicating that the income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artists or a musician or as an athlete, from his personal activities as such, exercised in the other Contracting State should not be taxed in that other Contracting State; on the contrary, the provisions are just the reverse. Mr. Bajoria could not place before us any provision from those agreements which will stand in the way of application of the provisions contained in Section 115 BBA or Section 194E of the Act.

In the case of Union of India and another Vs. Azadi Bachao Andolon and Another reported in (2003) 327 ITR 706 (SC), while construing the Indo- Mauritius Double Taxation Avoidance Convention, 1983 it was held that in a situation where the terms of the DTAC had been made applicable by reason of Section 90 of the Income-tax Act, 1961, even if they derogated from the provisions of the Income-tax Act, it was not possible to say that the principle of lifting the veil of incorporation should be applied by the Court. It was further emphasized that the whole purpose of the DTAC was to ensure that the benefits there under were available even if they were inconsistent with the provisions of the Indian Income-tax Act. In the case before us, we have noticed that in the six agreements placed before us, there is no provision which excludes the operation of the provisions contained in Sections 115BBA or 194E of the Act and thus, existence of those agreements did not do away with the liability of the appellant to deduct tax at the source in respect of payments of the alleged Prize Money or the Administrative expenses to the foreign teams playing on the soil of India.

We, therefore, find that double taxation avoidance agreements mentioned above did not absolve the appellant of its duties to deduct at source in terms of Section 194E of the Act.

Consequently, the order impugned is modified only to the extent by declaring that the appellant had no duty to deduct in terms of Section 194E of the Act in respect of payments made to the Umpires and Match Referees and thus, we direct the Assessing Officer to modify the order of penalty by excluding the amount paid to the Umpires and the Match Referees.

The appeal is, thus, allowed in part by modifying the order of the Tribunal to the extent indicated above by answering the first, second, fifth and sixth questions in the affirmative and in favour of the Revenue and the third question in the negative and against the Revenue. In view of our answer to the third question, the fourth question becomes redundant.

In the facts and circumstances, there will be, however, no order as to costs.

(Bhaskar Bhattacharya, J.) I agree.

(Sambuddha Chakrabarti, J.) Later:

After this judgment is passed, the learned counsel appearing on behalf of the appellant prays for stay of operation of our aforesaid order.

In view of what have been stated above, we find no reason to stay our order. The prayer is refused.

Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties by day after tomorrow upon compliance of all other formalities.