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TMI Blog2016 (8) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... inn, guest house, club or camp-site by whatever name called to any provision, accommodation for a continuous period of less than three months has been made amenable to service tax. 1.2 The additional prayers in the writ petition are for a declaration that Section 66 E (i) of the FA to the extent it seeks to constitute a service portion in an activity of supply of food or other articles as 'declared service' to be bad in law. The Petitioners seek a declaration that Rule 2C of the Service Tax (Determination of Value) Rules, 2006 is invalid. Profile of the Petitioners 2.1 Petitioner No.1 is the Federation of Hotels and Restaurants Association of India, a registered association whose members are a number of hotels spread all over the country. Petitioner No.2, the Leela Palace, Chanakya Puri, New Delhi is a unit of Hotel Leela Venture Limited which runs 5-star hotels all over the country. Petitioner No.3 is Rodeo, a restaurant which is part of the chain operating in the National Capital Territory of Delhi. 2.2 Several members of the Petitioner No.1 Association run hotels which provide both lodging and meals to the residents. They also operate airconditioned restaurants where meals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to. Articles 245, 246 and 248 of the Constitution read thus: "245. (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 246. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"). (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Delhi Value Added Tax Act 2004 defines 'sale' thus: "(zc) "sale" with its grammatical variations and cognate expression means any transfer of property in goods by one person to another for cash or for deferred payment or for other valuable consideration (not including a grant or subvention payment made by one government agency or department, whether of the central government or of any state government, to another) and includes- (i) to (vi).... (vii) supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service is for cash, deferred payment or other valuable consideration." Impugned provisions of the Finance Act 1994 9. By the Finance Act 2011the following sub-clauses, (zzzzv) and (zzzzw) were inserted in sub-section 105 of Section 65 of the FA making the following transactions taxable as service, viz., the service provided: "(zzzzv)- to any person, by a restaurant, by whatever name called, having the facility of air-conditioning in any part of the establishment, at any time during the financial year, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to serve liquor. Such restaurants provide conditions and ambience in a manner that service provided may assume predominance over the food in many situations. It should not be confused with mere sale of food at any eating house, where such services are materially absent or so minimal that it will be difficult to establish that any service in any meaningful way is being provided. 1.5 It is not necessary that the facility of air-conditioning is available round the year. If the facility is available at any time during the financial year the conditions for the levy shall be met. 1.6 "The levy is intended to be confined to the value of services contained in the composite contract and shall not cover either the meal portion in the composite contract or mere sale of food by way of pick-up or home delivery, as also goods sold at MRP. Finance Minister has announced in his budget speech 70% abatement on this service, which is, inter alia, meant to separate such portion of the bill as relates to the deemed sale of meals and beverages. The relevant notification will be issued when the levy is operationalised after the enactment of the Finance Bill." 11. Likewise on the aspect of short-ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity." 14. By a Notification No. 12/2012-Service Tax dated 17th March 2012 the Union of India exempted various taxable services from the whole of the service tax leviable under Section 66B of the Finance Act, 1994. The following two activities, which were taxable services were exempted by the said notification: "18. Services by way of renting of a hotel, inn, guest house, club, campsite or other commercial places meant for residential or lodging purposes, having declared tariff of a room below rupees one thousand per day or equivalent; 19. Services provided in relation to serving of food or beverages by a restaurant, eating joint or a mess, other than those having the facility of air-conditioning or central airheating in any part of the establishment, at any time during the year and which has a licence to serve alcoholic beverages." 15. On 20th June 2012 by Notification No. 25/2012-ST, the aforementioned notification dated 17th March 2012 was superseded. The two activities which were exempted read a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract, after deducting- (i) the amount charged for such goods or services, if any; and (ii) the value added tax or sales tax, if any, levied thereon: Provided that the fair market value of goods and services so supplied may be determined in accordance with the generally accepted accounting principles. Explanation 2.- For the removal of doubts, it is clarified that the provider of taxable service shall not take CENVAT credit of duties or cess paid on any goods classifiable under Chapters 1 to 22 of the Central Excise Tariff Act, 1985 (5 of 1986)." 17. These further changes by the Finance Act, 2012 have also been challenged in the present writ petition. The additional prayers in the amended writ petition are for a declaration that Section 66E of the FA to the extent it seeks to constitute a service portion in an activity of supply of food or other articles as 'declared service' to be bad in law. Further the Petitioners seek a declaration that Rule 2C of the 2006 Rules is also bad in law. 18. By Notification No.3/2013-Service Tax dated 1st March, 2013 issued under Section 93 (1) of the FA the Notification dated 10th June, 2012 was amended and Entry 19 was substituted as under: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to a matter fully covered by Entry 54 of List II (the State list). He pointed out that Entry 92C of List I which provides 'Taxes on Services' is yet to be notified and in any event could not make any difference to the legal position. According to him, it is not possible to extricate and assign separate value of the various aspects associated with the provisions of service. 22. Referring to Section 65(105) (zzzz) he pointed out that the renting of immovable property excludes building used solely for residential purposes and building used for the purposes of accommodation including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities from the ambit of service tax. With the above services having been exempted under Section 65(105) (zzzz), it cannot be brought back by introducing another entry in the form of Section 65(105) (zzzzw). He submitted that both VAT and luxury tax are collected by the State Governments. VAT is calculated on the sale of goods and luxury tax is payable by hotels, inn, guest houses, clubs and camp sites on provision of accommodation. Service tax on either of these aspects, therefore, cannot be levied as the two impost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision in Bharat Sanchar Nigam Ltd. v. Union of India (2006) 3 SCC 1, which according to him held that the Union did not have any power to tax a transaction the dominant nature of which was the sale of goods. 25. According to Mr Venkataraman Rule 2C of the 2006 Rules which deemed 40% of the total value of the transaction to be attributable to the value of services was arbitrary and without any basis and was liable to be quashed. Likewise, there was no basis for fixing the figure of Rs. 1,000 per day tariff for the exemption from service tax on accommodation in terms of the notifications dated 17th March and 6th June 2012. 26. Mr. Venkataraman sought to distinguish the judgment of the Bombay High Court in Indian Hotels and Restaurant Association v. Union of India 2014 (34) S.T.R 522 (Bom)which negatived the challenge to the validity of Section 65 (105) (zzzzv) of the FA, the decision of the Karnataka High Court in Ballal Auto Agency v. Union of India 2015 (40) S.T.R. 51 (Kar) which negatived the challenge to the validity of Section 65 (105) (zzzzv) and (zzzzw) of the FA and the decision of the Chhattisgarh High Court in Hotel East Park v. Union of India 2014 (35) S.T.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion. The stand of the Respondents is that if the State took cognizance of the meaning of tax on supply of goods and services under Article 366(29A) (f) and limited their taxation in the case of restaurant service to the goods portion leaving the service portion for taxation by the Union then the issue of double taxation would not arise. Likewise, as far as short-term accommodation (hotel) service is concerned, the power of the State to impose tax on the aspect of luxuries would not preclude the Union to levy tax on the service. A reference is made to the decisions in Federation of Hotel & Restaurant Association of India v. Union of India 1988 AIR 1291 and Association of Leasing Financial Service Companies v. Union of India (2011) 2 SCC 352. (iv) By the notification dated 17th March 2012, as modified by the Notification dated 6th June 2012, there has been an increase in the value of the service portion of the composite contract of supply of goods and services in a restaurant from 30 to 40%. Further a limited exemption has been granted from the service tax leviable on short-term accommodation (hotel) service when the declared tariff per day for a hotel room is less than Rs. 1000. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value arrived at after abatement. It is possible that the activity may be service for the purpose of one statute and sale for the purpose of another. The same activity could be treated as service in one situation and as sale in another. (ix) Levy of service tax falls under Entry 97 of List I read with Article 248 of the Constitution of India as held in Tamil Nadu Kalyana Mandapam Association v. Union of India (supra) Gujarat Ambuja Cements Ltd. v. Union of India (2005) 4 SCC 214 and All India Federation of Tax Practitioners v. Union of India (2007) 7 SCC 527. In terms of Tamil Nadu Kalyana Mandapam Association (supra), if an aspect is not covered within List II Schedule VII of the Constitution of India, it would fall within the exclusive power of the Parliament in terms of Article 248 of the Constitution of India. Since in the present case it is clear that the power to tax the service element does not lie within the legislative competence of the States, the same falls within the domain of the Parliament under Entry 97, List I of Schedule VII of the Constitution of India. Legislative History of the 46th Amendment 28. Before discussing the scope of expression 'tax on the sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in State of Himachal Pradesh v. Associated Hotels of India Ltd. (supra) and held that the true essence of the transaction was service and did not involve a transfer of the general property in the food supplied. The Court observed: "6. It has already been noticed that in regard to hotels this Court has in M/s. Associated Hotels of India Limited adopted the concept of the English law that there is no sale when food and drink are supplied to guests residing in the hotel. The court pointed out that the supply of meals was essentially in the nature of a service provided to them and could not be identified as a transaction of sale. The court declined to accept the proposition that the Revenue was entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs. If that be true in respect of hotels, a similar approach seems to be called for on principle in the case of restaurants. No reason has been shown to us for preferring any other. The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a huma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision in Gannon Dunkerley held various other transactions, which resemble, in substance, transactions by way of sales, to be not liable to sales tax. As a result of these decisions, a transaction, in order to be subject to the levy of sales tax under Entry 92-A of the Union List or Entry 54 of the State List, should have the following ingredients, namely, parties competent to contract, mutual assent and transfer of property in goods from one of the parties to the contract to the other party thereto for a price. 3. This position has resulted in scope for avoidance of tax in various ways. An example of this is the practice of inter-State consignment transfers i.e. transfer of goods from head office or a principal in one State to a branch or agent in another State or vice versa or transfer of goods on consignment account, to avoid the payment of sales tax on inter-State sales under the Central Sales Tax Act. While in the case of a works contract, if the contract treats the sale of materials separately from the cost of the labour, the sale of materials would be taxable but in the case of an indivisible works contract, it is not possible to levy sales tax on the transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion it was observed that the "proposed amendments would help in the augmentation of the State revenues to a considerable extent." The focus was on ensuring that State sales tax was leviable on the portion of supply of food and drinks even where it was as a part of a composite catering contract. The focus at that stage was not on capturing any portion of that composite contract for the purpose of levy of service tax. This was 1982 and service tax was not thought of till a decade later. Therefore, it is difficult to imagine that Parliament had in 1982 at the time of the 46th Amendment consciously decided that no portion of the composite contract of a catering contract would be amenable to levy of Union service tax. Validity of Section 65 (105) (zzzzv) of the FA 37. With the above legislative history in the background, the challenge to Section 65 (105) (zzzzv) of the FA which provides for levy of service tax on provision of service by air-conditioned restaurants having license to serve liquor is now examined. 38. The broad parameters on which the challenge to constitutional validity of central taxing statutes on the ground of lack of legislative competence of the Parliament is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent the levy contained in a taxing statute transgresses into a prohibited exclusive field, it is liable to be struck down. In the present case, the dichotomy is between sales tax leviable by the States and service tax leviable by the Centre. When it comes to composite indivisible works contracts, such contracts can be taxed by Parliament as well as State legislatures. Parliament can only tax the service element contained in these contracts, and the States can only tax the transfer of property in goods element contained in these contracts. Thus, it becomes very important to segregate the two elements completely for if some element of transfer of property in goods remains when a service tax is levied, the said levy would be found to be constitutionally infirm. 41. As regards the limitation on the legislative power of the States to levy sales tax on services the Court in Bharat Sanchar Nigam Limited v. Union of India (supra) observed: "80. ... No one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. 81. This does not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act is not to transfer the property in goods and rather it is the rendering of service or the ultimate transaction is transfer of immovable property, then also it is open to the States to levy sales tax on the materials used in such contract if it otherwise has elements of works contract." 46. By the same logic even if some part of the composite transaction involves the rendering of service, there should be no difficulty in recognising the power of the Union to bring to tax that portion. Section 66 E (i) of the FA which defines 'declared service' to be the "service portion in an activity wherein goods, being food or any other article of human consumption or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity." 47. The sheet anchor of the case of the Petitioners is the decision of the Constitution Bench in K Damodarasamy Naidu v. State of Tamil Nadu (supra) whereas the Respondents rely extensively on the decision in Tamil Nadu Kalyana Mandapam Association v. Union of India (supra). Both the said decisions therefore require to be examined in some detail. 48. In K Damodarasamy Naidu v. State of Tamil Nadu (supra) the Supreme Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction, which is understandable if the break-up was not provided by the seller. This becomes even more evident when the following sentence is read carefully. The Court observed: "The supply of food by the restaurant-owner to the customer though it may be a part of the service that he renders by providing good furniture, furnishing and fixtures, linen, crockery and cutlery, music, a dance floor and a floor show, is what is the subject of the levy." Thus it reiterated that the subject of the levy is "the supply of food". The decision in K Damodarasamy Naidu (supra) did not engage with the question whether the service element involved in the supply of food and drink would be amenable to service tax. The only question was whether the entire transaction was exigible to sales tax even where the supply of food and drink was in the course of providing a service and that question that was answered in the affirmative. The Court is, therefore, of the considered view that the decision in K Damodarasamy Naidu (supra) is not an authority for proposition that in a catering contract, which is admittedly a composite contract, the service portion thereof cannot be made exigible to service tax le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , fishscaler, nailfile, etc., a description of it must mention everything but in characterising it the particular use proposed to be made of it determines what it is. (p. 116) "... I pause to comment on certain correlations of operative incompatibility and the 'aspect' doctrine. Both grapple with the issues arising from the composite nature of a statute, one as regards the preclusory impact of federal law on provincial measures bearing on constituents of federally regulated conduct, the other to identify what parts of the whole making up a 'matter' bring it within a class of subjects...." (p. 117) 51. The aspect doctrine was highlighted by the Supreme Court in the context of levy of service tax on the service portion of leasing and financing transactions in Association of Leasing Financial Service Companies v. Union of India (supra) as under: "30. .....The object behind enactment of Article 366(29A) is to tax the composite price so that the full value of the hire-purchase price is taxed and to avoid the judgment in K.L. Johar's case whose implication was to narrow the tax base resulting in seepage of sales tax revenue. It is in that sense "splitting" of the contract needs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly the services rendered by outdoor caterers is clearly distinguishable from the service rendered in a restaurant or hotel inasmuch as, in the case of outdoor catering service the food/eatables/drinks are the choice of the person who partakes the services. He is free to choose the kind, quantum and manner in which the food is to be served. But in the case of restaurant, the customer's choice of foods is limited to the menu card. Again in the case of outdoor catering, customer is at liberty to choose the time and place where the food is to be served. In the case of an outdoor caterer, the customer negotiates each element of the catering service, including the price to be paid to the caterer. Outdoor catering has an element of personalized service provided to the customer. Clearly the service element is more weighty, visible and predominant in the case of outdoor catering. It cannot be considered as a case of sale of food and drink as in restaurant. Though the Service Tax is leviable on the gross amount charged by the mandapkeeper for services in relation to the use of a mandap and also on the charges for catering, the Government has decided to charge the same only on 60% of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. In fact, as pointed out earlier, the manner of service provided assumes predominance over the providing of food in such situations which is a definite indicator of the supremacy of the service aspect. The legislature in its wisdom noticed the said supremacy and identified the same as a potential region to collect indirect taxes. Moreover, it has been a well established judicial principle that so long as the legislation is in substance, on a matter assigned to a legislature enacting that statute, it must be held valid in its entirety even though it may trench upon matters beyond its competence. Incidental encroachment does not invalidate such a statute on the grounds that it is beyond the competence of the legislature (Prafulla Kumar vs. Bank of Commerce). Article 246(1) of the Constitution specifies that the Parliament has exclusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Article 246(3), the State Government has exclusive powers to make laws with respect to matters enumerated in List II (State List). In respect of matters enumerated in List III (Concurrent List) both Parliament and State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except to the extent that the clauses in Art. 366(29A)operate. By introducing separate categories of 'deemed sales', the meaning of the word 'goods' was not altered. Thus the definitions of the composite elements of a sale such as intention of the parties, goods, delivery etc. would continue to be defined according to known legal connotations. This does not mean that the content of the concepts remains static. Courts must move with the times. But the 46th Amendment does not give a licence for example to assume that a transaction is a sale and then to look around for what could be the goods. The word "goods" has not been altered by the 46th Amendment. That ingredient of a sale continues to have the same definition. The second respect in which Gannon Dunkerley has survived is with reference to the dominant nature test to be applied to a composite transaction not covered by Article 366(29A).Transactions which are mutant sales are limited to the clauses of Article 366(29A). All other transactions would have to qualify as sales within the meaning of Sales of Goods Act 1930 for the purpose of levy of sales tax. Of all the different kinds of composite transactions the draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Saran v. CST 1985 Supp SCC 205: "6. The components which enter into the concept of a tax are well known. The first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third is the rate at which the tax is imposed, and the fourth is the measure or value to which the rate will be applied for computing the tax liability. If those components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law. Any certainty or vagueness in the legislative scheme defining any of those components of the levy will be fatal to its validity." 61. What Rule 2C does is to enable the assessing authority to put a definite value to the service portion of the composite contract of supply of goods and services in an air-conditioned restaurant. Correspondingly there is an abatement for that portion which pertains to the supply of goods in the form of food and drink which would be amenable to sales tax or value added tax. As rightly pointed out by learned counsel for the Respondent that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the challenge to Section 65 (105) (zzzzw) of the FA by which the service tax is sought to be levied on short-term accommodation provided in a hotel, it must be noticed at the outset that main contention of the Petitioners is that levy of tax on luxuries as contemplated under Article 246 read with Entry 62 of List II (State List) of the Constitution entirely covers the field and therefore, Parliament lacks the legislative competence to levy such service tax. 65. To test the above submission it requires to be examined if indeed the Petitioners may be right in their contentions when the definition of 'luxury' is examined. Since the Petitioners are based in Delhi, the Court proposes to examine the relevant legislation applicable in the National Capital territory of Delhi. 66. Under Section 2 (i) of the Delhi Tax Luxuries Act, 1996 ('DTL Act'), the expression "luxury provided in a hotel" is defined to mean "accommodation and other services provided in a hotel, the rate or charges for which including the charges for air-conditioning, telephone, radio, music, extra beds and the like, is five hundred rupees per room per day or more; but does not include the supply of food, dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try 62 of List II and the State is therefore competent to levy and collect luxury tax on such taxable event. 69. In Godfrey Phillips India Ltd. v. State of U.P., (2005) 2 SCC 515, the Constitution Bench of the Supreme Court considered at length the meaning of term 'luxuries' in Entry 62 of List II of the Seventh Schedule to the Constitution. The exercise was undertaken in the context of the challenge laid to State legislations seeking to levy tax on luxury goods or articles. Holding that the levies were invalid as they could not, with respect to that entry, be on luxury 'articles' the Court observed as under: "68. ... The juxtaposition of the different taxes within Entry 62 itself is in our view of particular significance. The entry speaks of "taxes on luxuries including taxes on entertainments, amusements, betting and gambling". The word "including" must be given some meaning. In ordinary parlance it indicates that what follows the word "including" comprises or is contained in or is a part of the whole of the word preceding. The nature of the included items would not only partake of the character of the whole, but may be construed as clarificatory of the whole. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no difference between production or manufacture of saleable goods and production of marketable/saleable services in the form of an activity undertaken by the service provider for consideration, which correspondingly stands consumed by the service receiver. It is this principle of equivalence which is inbuilt into the concept of service tax under the Finance Act, 1994. That service tax is, therefore, a tax on an activity. That, service tax is a value added tax." 71. In the counter affidavit filed by the Respondent, it is simply asserted that service tax is a levy that is distinct from luxury tax levied by the States. But the basis for this assertion is not set out. On the other hand, while seeking to explain the exemption granted to rooms with a tariff of less than Rs. 1000 per day, reference is made to the threshold limits fixed in the luxuries tax legislation of the States like for e.g., Maharashtra and Delhi. It is, therefore, plain that there is not merely an overlap of luxury tax and service tax as far as accommodation provided in hotels is concerned. It is in fact the same levy but by different statutes: one enacted by the State and the other by the Union. This is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Kerala v. Larsen and Toubro Ltd. (2016) 1 SCC 170, the Supreme Court affirmed the decision of the Orissa High Court in Larsen and Toubro Ltd. v. State of Orissa (2008) 12 VST 31 to the effect that the machinery provisions for levy of the tax could not be provided by instructions and circulars. It was held by the Orissa High Court that "It is a well-settled principle that in matters of taxation either the statute or the Rules framed under the statute must cover the entire field. Taxation by way of administrative instructions which are not backed by any authority of law is unreasonable and is contrary to article 265 of the Constitution of India." 75. Consequently, the Court is satisfied that the provision of short-term accommodation in hotels etc. envisaged in Section 65 (105) (zzzzw) of the FA read with Section 65 (44) of the FA is a taxable event that is entirely covered by the term 'luxuries' in Entry 62 of List II of the Seventh Schedule to the Constitution and therefore outside the legislative competence of Parliament. 76. Before concluding the Court would like to observe that it has refrained from discussing the decisions of the other High Courts which have taken a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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