TaxTMI 
TaxTMI 
2017 (9) TMI 1230
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....case Tribunal is justified in deleting the disallowance out of interest / commission paid by Assessee to depositors, to the extent it has less charged from Promoters and their relatives and their sister concerns? 2. Whether on the facts and circumstances of case, Tribunal is justified in ignoring ratio of decision laid down by Jurisdictional High Court in H.R. Sugar Factory P. Ltd. 187 ITR 363? 4. M/s Sahu Investment Mutual Benefit Co. Ltd. (hereinafter referred to as the "Assessee") is a Mutual Benefit Company. As per Memorandum of Association, main objectives of Assessee are, (i) to receive deposits from shareholders and (ii) to lend money to shareholders. A Mutual Benefit Company is supposed to take deposits/ give advances only to its members or shareholders. 5. During the A.Y. 1993-94, Rs. 1,12,14,665.30 was paid as interest on deposits. Interest on deposit scheme is calculated on product basis. Further interest is calculated on quarterly compounding basis in F.D.R. Schemes and half yearly basis in other schemes. Further a sum of Rs. 38,13,119.10 was debited in profit and loss account towards commission to agents, for procuring these deposits. Against this, total recei....
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.... 1,12,230.00 8. Interest rates earlier being 20% in A.Y. 1992-93 was reduced to 16% in A.Y. 1993-94. Assessing Officer (hereinafter referred to as the "A.O.") found that Assessee has paid compound interest including commission charges on various deposit schemes at higher rate. Interest has been charged on unsecured loans, from above persons, at simple interest at 16% per annum, thus resulting in interest received/ receivable of Rs. 1,24,41,611.51 as against Rs. 1,51,91,943.03 paid by Assessee as interest and commission to obtain these deposits under various schemes. There is thus a difference of loss, which varies from Rs. 27 lacs and odd. 9. By this system, Assessee has received funds from public in the form of various types of deposits, by paying a high rate of interest, and commission to agents, and advanced these funds in the form of unsecured loans mainly to sister concerns at a very low rate of interest. It is pertinent to mention that in cases of loans, other than to sister concerns, Assessee has charged interest upto 28% p.a. also. 10. It was also noticed from the books of accounts produced, that, interest has been paid to depositors under various sche....
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....Benefit Society" means a company which the Central Government may, by notification in the Official Gazette, declare to be a Nidhi or Mutual Benefit Society, as the case may be. (2) The Central Government may, by notification in the Official Gazette, direct that any of the provisions of this Act specified in the notification- (a) shall not apply to any Nidhi or Mutual Benefit Society, or (b) shall apply to any Nidhi or Mutual Benefit Society with such exceptions, modifications and adaptations as may be specified in the notification. (3) A copy of every notification issued under sub- section (1) shall be laid as soon as may be after it is issued, before each House of Parliament." 16. The nature of "Mutual Benefit Company" was explained by observing that their objects inter alia are to enable members to save money or invest their savings and secure loans at favourable rates. They inculcate idea of thrift and compulsory savings in the minds of poor and middle class people. It was pointed out that A.O. wrongly held that "Mutual Benefit Company" cannot admit, as member, any body corporate or trust, since this amendment came into force by notification dated 04.12.1995 and n....
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..../o Sahu Agencies) 20% 38,493 36,202 28. Vijay Kumar Sahu (C/o Vijay Kumar Santosh Kumar & Co.) 20% 33,126 33,155 29. Shubhash Kumar Sahu (C/o Sahu Hotel & Restaurant) 20% 22,460 21,124 30. Ajai Kumar Sahu (C/o Sahu Investments) 20% 17,752 16,696 Total 1,06,90,541 1,04,49,652 17. CIT(A) observed that there is a difference of only Rs. 2,40,000/- whereas cost of general administration and infrastructure, as is required to maintain corporate status, would be much more. Hence on this fact also there is no under recovery of interest as alleged by Assessee. 18. Against this part of the order of CIT(A), dated 10.01.2000, Revenue preferred appeal before Tribunal which has been rejected. Tribunal has recorded findings, relevant for our purposes, in paras 10 and 11, as under: "10. We have carefully considered the submissions of the ld. Representatives of the parties and have perused the orders of the authorities below. There is no dispute to the fact that the assessee is a company, which is recognized as a "Nidhi" or a Mutual Benefit Society in terms of provisions of Section 620A of the Companies Act, 1956. A s....
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....t and/ or it was to receive higher rate of interest, but the assessee waived a part of the interest or it has accounted for lesser rate of interest in its books of account and thereby showing lesser profit. We observe that the A.O. has added the said sum of Rs. 29,20,123/- by calculating the notional income of the assessee on the basis that the cost of fund to the assessee was at the rate of 24.5% and, therefore, the assessee company should have charged the interest at the said rate from the persons to whom it hand lent money. Hon'ble Supreme Court of India had held that the income tax is levied on the income earned by the assessee and not on the income that could have been earned by and assessee. It was further held by their Lordships in the case of Calcutta Discount Co. Ltd., 91 ITR 8 and in the case of A. Raman & Co., 67 ITR 11, that if the assessee had, in fact, not earned any income, there could not be any levy of income and further the law casts no obligation upon any assessee to earn income. The Hon'ble Calcutta High Court has also held in the case of Kewalchand Bagdi vs. CIT, 183 ITR 207, that no hypothetical income can be assessed, which cannot be realized. The Hon....
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....ision rendered in respect of a different nature of Company involving different activities and business, having different factors, cannot be applied universally in all cases. A minor deviation in a fact may have a wider impact on the ultimate inference and conclusion. In the present case A.O., at least, has found no fallacy or incorrectness in the statement or fictitious nature of transaction. 21. Assessee is a Mutual Benefit Company duly declared so by Government of India, Ministry of Finance, under Section 620A of Act, 1956. Objective of Assessee is to receive, deposit and advance loans to its members. A.O. did not find that advancement of loan was not to the members of Assessee Company, but what it has observed, that a corporate body could not have been member of Assessee Company ignoring the fact that this prohibition came into force in 1995, hence was not applicable in A.Y. 1993-94. 22. If this finding of A.O. is excluded, then what facts remained as recorded by A.O. are that loans were advanced to the members of Assessee Company. No evidence also has come on record before A.O. that the rate of interest claimed by Assessee in respect of advance of loans to members was inc....
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....ed on behalf of Revenue are not in respect of Assessee which was a Mutual Benefit Company but had a different status and are not applicable in this case. 27. Two judgments very heavily cited and relied by appellant, i.e., Commissioner of Income Tax vs. Saraya sugar Mills (P.) Ltd. (1992) 193 ITR 575 and Commissioner of Income Tax vs. H.R. Sugar Factory Pvt. Ltd. (1991) 187 ITR 363 have already been considered by this Court in Income Tax Appeal No. 139 of 2005 (The Commissioner of Income Tax Vs. M/s Raj Kumar Singh and Co.), decided on 09.01.2017 and in paras 5 and 6, both judgments have been distinguished by referring to relevant distinguishing features in the aforesaid judgments as under: 5. So far as Question-2 is concerned, we find that both the decisions are not applicable to the case in hand and do not help Revenue in respect to its claim with regard to the amount involved in Question-1. The judgment in CIT Vs. Saraya Sugar Mill Pvt. Ltd. (supra) was decided on its own peculiar facts as is evident from following: "The Income-tax Officer was of the opinion that the interest relatable to the amount lent to the directors and to the said firm cannot be granted deduction, ....
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....ures mentioned in the questions referred clearly shows that huge amounts are being paid by the assessee on account of interest. May be that the company borrows large amounts for the purpose of its business every year, but that does not explain the huge advances to the directors/shareholders. Had this money been not advanced to the directors, it would have been available to the assessee for its business purposes and to that extent it may not have been necessary to borrow from the banks." (emphasis added) 28. Deduction under Section 36(1)(iii) of Act, 1961 is applicable in respect of interest of loan raised for business purpose. Section 36 is a residual Section in respect of certain deductions which are to be made from income of Assessee while arriving at taxable income and that is why it is nomenclatured as "other deductions". Any amount on account of interest paid becomes an admissible deduction under Section 36, if interest was paid on capital borrowed by Assessee and this borrowing was for the purpose of business or profession. This is very clear from Section 36(1)(iii) of Act, 1961. 29. In the present case, deposits were received from members and loans and advances were gi....
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....tisfied that once genuineness of transactions of deposits or advances are not doubted and not shown fictitious, colourable etc., mere fact that Assessee paid higher rates on amount received/ deposits or realized lesser rates on advances/ loans, would not entitle interference with the claim of deduction, on any notional basis as that is impermissible in law. 33. Learned counsel for appellant placed reliance on an earlier judgment in Commissioner of Income Tax Vs. Sahu Enterprises Pvt. Ltd., 2013(352) ITR 8 (All) wherein claim of deduction towards payment of interest on advances was disallowed and department's appeal was allowed. Assessee in the said case was a different personality and person for the purpose of Act, 1961. Sahu Theater was being run by Sri S.N. Sahu in his proprietorship. During his life time there was heavy losses as Sri S.N. Sahu made heavy withdrawals from his business. On his death, debit balance in his capital amount was distributed amongst his legal heirs. The business was taken over by partnership firm, namely, "M/s. Sahu Enterprises". Debit balances were reflected in the name of legal heirs and family members in balance-sheet. In 1991-92, business was ....
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....unning its business. It may not be relevant as to whether the advances have been extended but of the borrowed funds or out of the mixed funds, which included borrowed funds. The test to be applied in such cases is not the source of the funds but the purpose for which the advances were extended." (emphasis added) 34. The aforesaid judgment, therefore, has no application to the facts of this case. 35. Sri Manish Misra laid great stress upon the judgment in Mcdowell and Co. Ltd. vs. Commercial Tax Officer (supra) and contended that here is a case of tax avoidance device, hence it is duty of Court to expose and refrain Assessee from taking advantage of colourable device, it has planned. It is a Constitution Bench judgement. Majority judgment was delivered by Hon'ble Ranganath Misra, J. on behalf of Himself and Hon'ble Y.V. Chandrachud, C.J., Hon'ble D.A. Desai, J. and Hon'ble E.S. Venkataramiah, J, while a concurring but separate judgment was delivered by Hon'ble Chinnappa Reddy, J. Real dispute was, whether excise duty paid on liquor, sold by Company to wholesellars would be part of return for the purpose of assessment of sales tax. This question earlier came....
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....moral plane than honest payment of taxation. The proper way to construe a taxing statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally or liberally, nor whether transaction is not unreal and not prohibited by statute, but whether transaction is a device to avoid tax, and whether transaction is such that judicial process may accord its approval to it. Court said that it is neither fair not desirable to expect legislature to intervene and take care of every device and scheme to avoid taxation. It is up to the Court to take stock to determine nature of new and sophisticated legal devices to avoid tax and consider whether situation created by devices could be related to the existing legislation with aid of 'emerging' techniques of interpretation, to expose the devices for what they really are and to refuse to give judicial benediction. 37. Aforesaid authority, in our view, has no application in the case in hand considering the facts as already discussed above and findings of fact recorded concurrently by CIT(A) as well as Tribunal which nowhere shows a case of an attempt to evade tax or to discover a device for t....
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....s found that in a number of cases certain persons constituting an association, calling it to be Corporation or Company, and thereby had indulged in fraudulent and speculative activities defrauding the public at large. It resulted in enactment of Bubble Act, 1720 prohibiting generally the use of Corporation unless the Corporation was authorised to act as such by the Act of Parliament or Royal Charter. This enactment could not suppress formation of company. Moreover, unincorporated associations were formed, which, in law, were large partnerships but by ingenious legal devices, approximated to the form of company having transferable shares. The Bubble Act, 1720 thus was repealed in 1825. At that time, following three types of companies were known: (1) Companies incorporated by Royal Charter, (2) Companies incorporated by Special Act of Parliament; and (3) Deed of Settlement Companies. 42. British Parliament passed "Joint Stock Companies Act, 1844" which prohibited large unincorporated companies and admitted creation of Joint Stock Companies by registration. This Act, however, did not provide immunity to the members of incorporated company from direct liability and on the contrary e....
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....mpany. A company which is not a "Private Company" is a "Public Company". 48. Section 12 of the Act provides that any seven or more persons associated for any lawful purpose may, by subscribing their names to a Memorandum of Association and by complying with the requirement of Act in respect of registration, form an incorporated company with or without limited liability. For the companies incorporated with unlimited liability, the liability of the members like unincorporated company is unlimited but the difference is that an unlimited company registered under the Act is a legal person with perpetual succession and a common seal capable of borrowing, suing and being sued and holding property in its own name i.e. has its own legal personality; while in an unincorporated association, the individual members alone have right and duties; and the association has no legal entity. 49. For the purpose of the present case, however, we are concerned with a company incorporated under the Act with limited liability. In respect to such companies, the memorandum is required to be submitted at the time of incorporation. It shall specifically state that the liability of its members is limited b....
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....anaging Director has been held to have a dual capacity inasmuch as being a Director he is an agent of the company but he is also an employee. In Shri Ram Pershad Vs. C.I.T., AIR 1973 SC 637, Court held: "It is again true that a director of a company is not a servant but an agent inasmuch as the company cannot act in its own person but has only to act through directors who qua the company have the relationship of an agent to its principal. A Managing Director may have a dual capacity. He may both be a Director as well as employee......." 55. The work, performance and responsibility of Directors, Managing Directors and other Officers of the company is provided in the various provisions of the Act and it is not necessary for us to go in further details of those provisions for the purpose of present case. 56. From the above discussion the position as culled out is that the word "Company" imports an association of number of individuals formed for a common purpose. When such an association is incorporated, it becomes a body corporate, a legal entity, separate and distinct from such individuals. Such incorporation must owe its existence to a statutory authority. The corporation/C....
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....s. Death, bankruptcy or lunacy of any or some of the members would not affect the life of the company in any manner for the reason that company is a distinct person. Today if a company has ten members holding the entire shareholding and tomorrow if they transfer their shares to ten other members, company would retain the same person though the members would change. Similar is the position with respect to change of Directors. Perpetual succession means company never dies until it is wound up. Company is not equated with estate and undertakings owned by it though all are intangible. If the estate of a company is taken over by government, it would not constitute as taking over of management of the company. 59. The juristic personality of company is recognised for approaching Courts under the Constitution of India also for protection of fundamental rights which are guaranteed to 'persons'. However, they may not seek protection in respect to fundamental rights which are guaranteed to a 'citizen' for the reason that the company is a person but not a citizen (State State Trading Corporation of India Ltd. Vs. The Commercial Tax Officer and others, AIR 1963 SC 1811). When....
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....nnot be made liable under a decree against a company, as held in Nihal Chand Vs. Kharak Singh Sunder Singh, (1936) 2 Company Cases 418 and Harihar Prasad Vs. Bansi Missir, (1932) 6 Company Cases 32. Doctrine of Piercing of Veil (Lifting the Corporate Veil): Exception to the Law of Separate Entity: 63. The aforesaid doctrine of separate juristic personality of Company, however, with the passage of time has been subjected to certain exceptions, sometimes on account of specific provisions of the statute, and, sometimes by judicial pronouncements. 64. The most important exception in this regard is that of "piercing the veil" or "lifting the corporate veil" to find out who is the real person, beneficiary or in controlling position of the Company. The doctrine of "lifting the veil" has marked a change in the attitude, the law had originally adopted, towards the concept of separate entity or personality of the corporation, but the same has not been applied in general or routine manner. It has been adopted exceptionally whenever and wherever situation has warranted. The circumstances in which said doctrine has been invoked, vary from case to case. 65. Lord Denning M.R. in Littl....
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....pt to avoid recognition by the eye of equity. 71. In The Workmen Employed in Associated Rubber Industry Ltd., Bhavnagar Vs. The Associated Rubber Industry Ltd., Bhavnagar and another, AIR 1986 SC 1 Court held where ingenuity is expended to avoid taxing and welfare legislation, it is the duty of Court to get behind the smoke-screen and discover true state of affairs. There, a new company was created, wholly owned by principal company, without having assets of its own, except of those transferred to it by principal company and with no business or income of its own except of receiving dividends from shares transferred to it by the principal company. The purpose evident from the entire action was to reduce amount to be paid by way of bonus to workmen. In the circumstances, Court lifted veil and held principal company responsible for payment of bonus on the entire amount without making any distinction between new company and principal company. It upheld application of lifting of veil to prevent device to avoid welfare legislation and said that it may be lifted where a statute itself contemplates lifting the veil, or fraud or improper conduct is intended to be prevented, or a taxing s....
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....ion of electricity and the entire generation was consumed by the principal company. Court pierced the veil in view of the fact that Renusagar Power Company was wholly owned subsidiary of Hindalco and completely controlled by the same to the extent of even day to day affairs. The entire generation of electricity of Renusagar Power Company was consumed by M/s Hindalco and it was also found from the facts that the separate company was set up by Hindalco to avoid any complication in future if power station is taken over by State or Electricity Board. In order to avoid liability of electricity duty it sought to rely on the principle that two companies are different entities. Court in the aforesaid facts and noticing that the device was sought to be relied to avoid liability of electricity duty, ignored distinct juristic personality of the companies, lift the veil of subsidiary and held that both companies are one and the same for the purpose of liability of electricity duty. Court further held that in modern company jurisprudence, the veil on corporate personality even though not lifted, sometimes is becoming more and more transparent. It was thus held that consumption of electricity by....
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...., to circumvent a statute, to achieve or perpetuate monopoly, or protect knavery or crime, Courts will draw aside the web of entity, will regard corporate company as an association of live, up-and-doing, men and women shareholders, and will do justice between real persons. Consequently in the aforesaid case corporate character was ignored by Court observing that Tejwant Singh and his family has evolved the said method not to encourage and promote trade and commerce but to commit illegalities and defraud peoples. 79. In Subhra Mukherjee and another Vs. Bharat Coking Coal Ltd. and others, 2000 (3) SCC 312 it was observed that to look at the realities of the situation and to know the real state of affairs behind the facade of the principle of the corporate personality, the Court would pierce the veil of incorporation. In the said case some immovable property was alleged to be sold in favour of the wives of the Directors of the Company which is alleged to be collusive and, therefore, Court applied doctrine of piercing the veil to ascertain true nature of the transaction, as to who were the real parties to the sale and whether it was a genuine or bona fide transaction or not. 80. ....
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....ers, 2003 NTN (22) 358. 83. In M/s Nand Auto Hire Purchase Pvt. Ltd. (Supra) recovery of road tax was in dispute. Petitioner contended that the truck was handed over to the financier M/s Nav Instalments and, therefore, recovery should be made from the said financier which is a different legal entity. From the facts on record, Court found that petitioner, M/s Nand Auto Hire Purchase Pvt. Ltd. has its Managing Director, Sri Vishnu Bhagwan Agrawal who was also managing partner of the firm M/s Nav Instalments. In these circumstances not finding any substantial distinction between the person who was operating behind the said two bodies, and noticing that the entire attempt was to frustrate recovery of road tax, this court recorded a finding of fact that Sri Vishnu Bhagwan Agrawal is really controlling both namely, the petitioner as well as M/s Nav Instalments, invoked doctrine of piercing the veil. 84. In Naresh Chander Gupta (Supra) the dues of trade tax were sought to be recovered from M/s Shiv Sewa Samiti, a society registered under Societies Registration Act of which petitioner, Naresh Chander Gupta was the secretary. Though recovery certificate was issued against society but ....
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....Jain (Supra): "......In the instant case, there is an agreement between the parties and also the statutory provisions under which the only consumer company is liable for payment of the arrears of electricity dues and the Director of the company cannot be made personally liable. Hence the doctrine of lifting the veil can not be invoked in the instant case....." (Para 23) 87. In Sri Ram Gupta (Supra) also trade tax dues were sought to be recovered from the petitioner, a Director of a Private Limited Company. Court after recording its inference that the assets of the company have been diverted or syphoned off by petitioner for his own benefit and is left only a shell, refused to exercise its discretionary remedy. Thus the aforesaid judgment also does not lay down any legal proposition that whenever dues are to be recovered from a company, the Directors would be personally responsible. 88. In Reflex Industries (Supra) one Smt. Poonam Suri purchased an industrial plot from its owner M/s Wazid Sons Exports Ltd., New Delhi vide sale deed dated 23.06.1987. The said premises was in tenancy of M/s Krisons Electronics System Pvt. Ltd. Sri R.K. Suri, Managing Director of M/s Krisons E....
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....pierce the veil of the corporate personality of M/s Krisons Electronics System Pvt. Ltd. to find out the beneficiaries behind it and recorded a finding that fraud vitiates all proceedings. In the said case the whole transaction was to avoid tax recovery by playing fraud between the petitioner, Smt. Poonam Suri and M/s Krisons Electronics System Pvt. Ltd. Therefore, in the facts of that case, as we have already noticed, the doctrine of piercing the veil could effectively been invoked. The said judgement is thus not an authority to lay down as a general proposition that whenever tax dues are recoverable from a company, its Directors would also be severally and jointly liable to pay the same and proceedings can be initiated against their personal assets. 89. In Sanjay Kumar Gupta (Supra) also this Court in para 8 of the judgement proceeded by observing: "In our view, even if that is so it is not fit case for interference under Article 226 of the Constitution." 90. Therefore, in the facts of that case the Court declined to interfere under Article 226 of the Constitution as is also evident from para 19 of the judgment. In para 16 and 17 of judgment Court observed that the doctr....
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....le for the payment of such tax unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company. (2) Where a private company is converted into a public company and the tax assessed in respect of any income of any previous year during which such company was a private company cannot be recovered, then, nothing contained in sub-section (1) shall apply to any person who was a director of such private company in relation to any tax due in respect of any income of such private company assessable for any assessment year commencing before the 1st day of April, 1962." 94. A perusal of Section 179 shows that it has been given an overriding effect over the various provisions of the Act and makes Director of a Private Company responsible for payment of tax dues outstanding, of the period, he was Director, provided he proves that non recovery is not attributed to any gross neglect, misfeasance or breach of duty on his part. The said provision, therefore, while making Director of the private company responsible for payment of tax dues jointly and severally, makes an exception that in case h....
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....who have proceeded to prevent such liability or to achieve an impermissible objective by taking recourse to corporate personality, the veil of the corporate personality shall be lifted so that those persons who are so identified are made responsible. However, this doctrine is not to be applied as a matter of course, in a routine manner and as a day to day affair. If such a course is permitted, it would lead to not only disastrous results but would also destroy completely the concept of juristic personality conferred by various statutes and would make several enactments and their effect, redundant and illusory. 97. In P.C. Agarwala vs. Payment of Wages Inspector, M.P. and Ors., AIR 2006 SC 3576 Court has said that at present judicial approach in cracking upon the corporate shell is somewhat cautious and circumspect. It is only when the statute justifies adoption of such a course or in exceptional cases, where Courts have felt themselves satisfied to ignore the corporate entity and to treat the individual shareholder(s) liable for its acts, such a course has been adopted. Broadly, where fraud is intended to be prevented, or trading with enemy is sought to be defeated, the veil of ....
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.... the Courts in India also. There is no doubt about the proposition that whenever the circumstances so warrant, the corporate veil of the company can be lifted to look into the fact as to whose face is behind the corporate veil who is trying to play fraud or taking advantage of the corporate personality for immoral, illegal or other purpose which are against public policy. Such lifting of veil is also has to implemented whenever a statute so provided. However, it is not a matter of routine affair. It needs a detailed investigation into the facts and affairs of the company to find out as to whether the veil of the corporate personality needs to be lifted in a particular case. Initial burden for application of the doctrine of "Piercing of Veil": 101. Whether in respect to tax dues or other public revenue or in other cases, if one has to discard the corporate personality, then the initial burden would lie upon it to place on record relevant material and facts to justify invocation of doctrine of lifting of veil and to plead that the corporate shell be not made a ground of defence. A personality conferred by the statute cannot be overlooked or ignored lightly and in a routine mann....
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....the case in hand. 104. Commissioner of Income Tax, Gujarat II vs. B.M. Kharwar (supra) relied by Sri Manish Misra, is a case where issue raised was "whether Nasik Math can be said to be in State of Bombay and liable to be registered under Bombay Public Trusts Act, 1950". It was held that principal Math is situate in State of Mysore and as His Holiness is a Sanyasi, who generally names the house properties with temples as 'Maths'. The properties at Nasik, Panchavati, are known as properties of Shringeri Math. The Samadhis have been constructed to look like temple. There is Sabha Mandap in which an image of Adi Shankaracharya is installed. All the expenses have been incurred by His Holiness from the income of Shringeri Math. Court held that purpose of Bombay Public Trusts Act, 1950 was not to regulate or make better provision for administration of trusts outside the State of Bombay. In order to determine situs of trust, which consists of a Math and subordinate so-called Math or maths, it is the situs of principal Math which will determine applicability of Act. The aforesaid judgment, by no stretch of imagination has any application to the issues raised in this appeal and d....