Case Law Details

Case Name : Manthena Satyanarana Raju Charitable Trust Vs Union of India (Telangana High Court)
Appeal Number : WP No. 33798 of 2016
Date of Judgement/Order : 07/02/2017
Related Assessment Year :

Manthena Satyanarana Raju Charitable Trust Vs Union of India (Telangana High Court)

petitioner was providing various services, such as, steam bath, sauna/infrared bath, foot and arm bath, whirlpool bath, circular jet, full emersion bath, spinal spray, spinal bath, hip bath, hydro deluxe bath, jacuzi, mud bath, neem paste bath, plant leaf bath, sand bath, massage, mud packs, vibro massages, physiotherapy, exercises, yoga, meditation, colon therapy, etc. On the basis of the said information, the 2nd respondent came to the conclusion that what was offered by the petitioner fell under the category of “health and fitness services” and that therefore, service tax was payable by the petitioner.

In response to the show cause notice issued, the petitioner sent a reply contending that they were actually providing nature cure treatment; that their main activity was to spread awareness of health by way of naturopathy, food therapy, water therapy and yoga at their premises and that their main activities could be divided into two parts, the first dealing with the creation of public awareness and the second dealing with the provision of nature cure treatment to the clients in their premises.

After giving an opportunity of personal hearing, the 2nd respondent came to the conclusion that the various therapies and treatments provided by the petitioner under the system of medicine of naturopathy, were only incidental to the over all services of physical well being and fitness. Therefore, the 2nd respondent came to the conclusion that what was done by the petitioner fell under the category of health and fitness services, and liable to be taxed.

Unfortunately, the 2nd respondent has failed to take note of the scope and ambit of the exemption notification bearing No.25/2012, dated 20.06.2012. If we have a look at para-2(k) of the exemption notification, it will be clear that the petitioner satisfies both the limbs indicated in sub-clause (a) and (b) of Clause (i) of para-2(k). The petitioner is allegedly indulging in public awareness and the petitioner is also indulging in the spreading of public health by way of care and Therefore, even on the basis of the findings recorded in para-30.2 it is not possible to conclude that the activities carried on by the petitioner would not fall within para-2(k) of the exemption notification.“In fine the objective of MSCT is lifestyle correction by inculcating good habits and achieving physical and mental wellbeing and fitness of body and mind. I observe that provision of various therapies and treatments under the system of medicine of naturopathy was incidental to the service of MSCT of providing physical well being and fitness.” An important aspect to be taken note of is that under Serial No.2 of the exemption notification health care services by a clinical establishment is exempted from payment of service tax.

An exemption notification, which is understood by the respondents to confer a benefit upon the clinical establishments, cannot be made inapplicable to a holistic health care institution such as the petitioner herein, as the same would tantamount to killing our indigenous system of health and well being. A system of medicine which focused mainly on healthy living and not merely a prolonged existence cannot be denied the benefit of the exemption notification on the basis of a misconception that a clinical establishment is one that would treat people after they fall ill and not one which will prevent people from falling ill.

There is a very clear distinction between fitness centres or unisex saloons, which provide different types of services to the customers. Their focus is mostly on beauty rather than on maintenance of health. The 2nd respondent appears to have fallen into an error in mixing up both. Therefore, we are of the considered view that even on the basis of the findings of fact recorded by the 2nd respondent, the conclusion reached by him cannot be sustained.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

The petitioner, which is registered as a public charitable institution with the department of Income Tax under Section 12AA of the Income Tax Act, 1961 and which provides Naturopathy services for various types of ailments, has come up with the present writ petition challenging an Order in Original dated 31.05.2016 passed by the 2nd respondent herein, demanding a sum of Rs.80,65,975/- towards service tax, apart from imposing penalties.

2. Heard Mr. K.G. Krishna Murthy, learned Senior Counsel for the petitioner and Mr. M.V.J.K. Kumar, learned Senior Standing Counsel appearing for respondents 1 and Respondents 3 and 4 are only formal parties against whom no relief is claimed.

3. Admittedly, the petitioner has a statutory alternative remedy of appeal to the CESTAT under Section 86(1) of the Finance Act, But the petitioner has chosen to come up with the present writ petition, bypassing the alternative remedy of appeal, on the short ground that the impugned order is completely without jurisdiction and contrary to the statutory scheme. It is now well settled that a writ petition can be entertained, without directing the party to avail the statutory alternative remedy, under two contingencies, viz., – (a) wherever there is violation of natural justice; and (b) where there is lack of jurisdiction.

4. Since the case on hand is projected as one falling under the second category, we shall examine the same to a limited extent.

5. A perusal of the impugned Order in Original shows that a show cause notice was issued to the petitioner, on the basis of information gathered by the preventive section to the effect that the petitioner was providing various services, such as, steam bath, sauna/infrared bath, foot and arm bath, whirlpool bath, circular jet, full emersion bath, spinal spray, spinal bath, hip bath, hydro deluxe bath, jacuzi, mud bath, neem paste bath, plant leaf bath, sand bath, massage, mud packs, vibro massages, physiotherapy, exercises, yoga, meditation, colon therapy, etc. On the basis of the said information, the 2nd respondent came to the conclusion that what was offered by the petitioner fell under the category of “health and fitness services” and that therefore, service tax was payable by the petitioner.

6. In response to the show cause notice issued The petitioner also pointed out that they have registered themselves as a public charitable trust under Section 12AA of the Income Tax Act, 1961 and that the donations paid to the petitioner were also exempted under Section 80G of the Income Tax Act. In response to the show cause notice issued, the petitioner sent a reply contending that they were actually providing nature cure treatment; that their main activity was to spread awareness of health by way of naturopathy, food therapy, water therapy and yoga at their premises and that their main activities could be divided into two parts, the first dealing with the creation of public awareness and the second dealing with the provision of nature cure treatment to the clients in their premises.

7. The petitioner also pointed out that they have registered themselves as a public charitable trust under Section 12AA of the Income Tax Act, 1961 and that the donations paid to the petitioner were also exempted under Section 80G of the Income Tax Act.

8. After giving an opportunity of personal hearing, the 2nd respondent came to the conclusion that the various therapies and treatments provided by the petitioner under the system of medicine of naturopathy, were only incidental to the over all services of physical well being and fitness. Therefore, the 2nd respondent came to the conclusion that what was done by the petitioner fell under the category of health and fitness services, and liable to be taxed.

9. But unfortunately, the 2nd respondent has failed to take note of the scope and ambit of the exemption notification bearing No.25/2012, dated 20.06.2012. By the said notification issued in exercise of the powers conferred by Section 93(1) of the Finance Act, 1994, the Central Government exempted the following taxable services under Section 66B of the Act.

2. Health care services by a clinical establishment, and authorized medical practitioner or para-medics:

3. Services by a veterinary clinic in relation to health care of animals or birds;Health care services by a clinical establishment, and authorized medical practitioner or para-medics:

4. Services by an entity registered under Section 12AA of the Income Tax Act, 1961 (43 of 1961) by way of charitable activities;

5. xxxxxx

6. xxxxxx

7. xxxxxx

8. Services by way of training or coaching in recreational activities relating to arts, culture or sports;

9. Services provided to or by an educational institution in respect of education exempted from service tax, by way of, –

(a) auxiliary educational service; or

(b) renting of immovable property;

10. Services provided to a recognized sports body by –

(a) an individual as a player, referee, umpire, coach or team manager for participation in a sporting event organized by a recognized sports body;

(b) another recognized sports body;

10. In the order impugned in the writ petition, the 2nd respondent has not disputed the claim of the petitioner that they have registered themselves under Section 12AA of the Income Tax Act as a charitable institution. But what the 2nd respondent did was to go by the definition of the expression “charitable institution” found in the definition part of the notification dated 20.06.2012. The definition of the expression “charitable activities” under para-2(k) of the exemption notification dated 20.06.2012 reads as follows:

“Charitable activities” means activities relating to –

(i) public health by way of –

(a) care or counseling of (i) terminally ill persons or persons with severe physical or mental disability, (ii) persons afflicted with HIV or AIDS, or (iii) persons addicted to a dependence-forming substance such as narcotics drugs or alcohol; or

(b) public awareness of preventive health, family planning or prevention of HIV inflection;

(ii) advancement of religion or spirituality;

(iii) advancement of educational programmes or skill development relating to, –

(a) abandoned, orphaned or homeless children;

(b) physically or mentally abused and traumatized persons;

(c) prisoners; or

(d) persons over the age of 65 years residing in a rural area;

(iv) preservation of environment including watershed, forests and wildlife; or

(v) advancement of any other object of general public utility up to a value of, –

(a) eighteen lakh and seventy five thousand rupees for the year 2012-13 subject to the condition that total value of such activities had not exceeded twenty five lakhs rupees during 2011-12;

(b) twenty five lakh rupees in any other financial year subject to the condition that total value of such activities had not exceeded twenty five lakhs rupees during the preceding financial year;

11. In other words, the expression “charitable activities” found in Serial No.4 of the exemption notification has to be given an interpretation in tune with the definition of the said expression found in Para-2(k) of the exemption notification. To put it differently, an institution claiming the benefit of exemption under Serial No.4 of the exemption notification should establish two things, viz., (a) that they are an entity registered under Section 12AA of the Income Tax Act, 1961; and (b) that their activities fall within one or more of the activities indicated in Para-2(k) of the exemption notification.

12. Even as per the impugned Order in Original there is no dispute that the petitioner is an entity registered under Section 12AA of the Income Tax Act, 1961. But insofar as the second aspect is concerned, the 2nd respondent has recorded a finding in Para-30.2 of the impugned order to the following effect:

“In fine the objective of MSCT is lifestyle correction by inculcating good habits and achieving physical and mental wellbeing and fitness of body and mind. I observe that provision of various therapies and treatments under the system of medicine of naturopathy was incidental to the service of MSCT of providing physical well being and fitness.”

13. Keeping the above finding of fact intact, if we have a look at para-2(k) of the exemption notification, it will be clear that the petitioner satisfies both the limbs indicated in sub-clause (a) and (b) of Clause (i) of para-2(k). The petitioner is allegedly indulging in public awareness and the petitioner is also indulging in the spreading of public health by way of care and Therefore, even on the basis of the findings recorded in para-30.2 it is not possible to conclude that the activities carried on by the petitioner would not fall within para-2(k) of the exemption notification.“In fine the objective of MSCT is lifestyle correction by inculcating good habits and achieving physical and mental wellbeing and fitness of body and mind. I observe that provision of various therapies and treatments under the system of medicine of naturopathy was incidental to the service of MSCT of providing physical well being and fitness.”

14. An important aspect to be taken note of is that under Serial No.2 of the exemption notification health care services by a clinical establishment is exempted from payment of service tax. The expression “clinical establishment” is defined in para-2(j) of the exemption notification as follows:

“clinical establishment” means a hospital, nursing home, clinic, sanatorium or any other institution by, whatever name called, that offers services or facilities requiring diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India, or a place established as an independent entity or a part of an establishment to carry out diagnostic or investigative services of diseases;”

15. It is clear from the above definition that even Multi Specialty Hospitals and Nursing Homes, which are obviously run on profit motive, are entitled to the exemption. It is important to note that a Multi or Super Specialty Hospital, which is not registered under Section 12AA would still fall under Serial No.2 of the exemption notification. But unfortunately, a hospital or Health Care Centre providing indigenous system of treatment or wellbeing may have to fall only within the purview of the Entry No.4 of the exemption But treating the health care establishment for promoting an indigenous system of medicine, cannot go under such a discriminatory treatment. As a matter of fact, the expression “clinical establishment” would mean a hospital, nursing home, clinic, or any other institution, which offers services or facilities requiring diagnosis or treatment or care for illness. It is found from the impugned Order in Original that the fact that the petitioner is rendering services and facilities requiring treatment or care for illness, is admitted by the 2nd respondent himself.

16. Insofar as the expression “health care services” is concerned, the same is defined in para-2(t) of the exemption notification as follows:

“Health care services” means any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India and includes services by way of transportation of the patient to and from a clinical establishment, but does not include hair transplant or cosmetic or plastic surgery, except when undertaken to restore or to reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, injury or trauma;

17. It is found from the above definition that any institution, which provides services by way of diagnosis or treatment or care for illness,injury, deformity, abnormality or pregnancy comes within the definition of health care services. That the petitioner renders such services is not in doubt even from the findings recorded by the 2nd respondent herein.

18. Where the 2nd respondent appears to have gone wrong is that the 2nd respondent has taken the services provided by the petitioner for the wellbeing of an individual, as something out of the purview of the diagnosis or treatment. The 2nd respondent has fallen into an error in thinking so, due to a fundamental misconception that is normally prevalent in society. While Allopathic system of medicine is only for diagnosis and treatment of illness, many of the indigenous system of medicines, seek to prevent rather than prescribe.

19. One of us (VRS,J) had an occasion to consider the significance of and the need to nurture indigenous systems of medicine, in a decision rendered on 12.03.2012 in Dr. T. Arutselvam v. The Government of Tamilnadu, (W.P.Nos.3589 and 4452 of 2012 of the Madras High Court). Paragraph Nos.53 to 60 of the said decision is extracted as follows:

53. The history of Ayurveda and Siddha dates back to several centuries. Literally meaning the “science of life”, Ayurveda is often used in a narrow sense as a “system of medicine”, which considerably dilutes and distorts its real scope and objective. Health, according to Ayurveda is not only freedom from disease. According to Susruta, one of the great early practitioners, it is a state of the individual where, in addition to harmony among the functional units (dosas), digestive and metabolic mechanisms (agnis), structural elements (dhatus), and waste products (malas), a person should also be in an excellent state (prasanna) of the spirit (atman), senses (indriyas), and mind (manas). The Encyclopaedia Britannica states that Ayurvedic practitioners work in rural areas, providing healthcare to at least 5 million people in India. Pointing out that the golden age of Indian medicine from 800 B.C., till 1000 A.D., was marked by the production of the medical treatises known as “caraka-samhita” and “susruta-samhita”, the Britannica records in page 776 of Volume-23 (15th Edition) as follows:-One of us (VRS,J) had an occasion to consider the significance of and the need to nurture indigenous systems of medicine, in a decision rendered on 12.03.2012 in T. Arutselvam v. The Government of Tamilnadu, (W.P.Nos.3589 and 4452 of 2012 of the Madras High Court). Paragraph Nos.53 to 60 of the said decision is extracted as follows:

“In surgery, ancient Hindu medicine reached its zenith. Operations performed by Hindu surgeons included excision of tumours, incision and draining of abscesses, punctures to release fluid in the abdomen, extraction of foreign bodies, repair of anal fistulas, splinting of fractures, amputations, cesarean sections, and stitching of wounds.

A broad array of surgical instruments were used. According to Susruta the surgeon should be equipped with 20 sharp and 101 blunt instruments of various descriptions. The instruments were largely of steel. Alcohol seems to have been used as a narcotic during operations, and bleeding was stopped by hot oils and tar.

Hindu surgeons also operated on cataracts by couching or displacing the lens to improve vision.”

54. In a Book titled “Man and Medicine – A History” authored by Farokh Erach Udwadia, an Emeritus Professor of Medicine (Allopathy) and published by Oxford University Press (2001 Edition), an interesting event is reported at page No.43. It is about the documented performance of rhinoplasty (for which Susruta was famous) witnessed and recorded in 1793 in Pune. A Parsee gentleman by the name of Cowasjee, who was serving the English Army at the time of the Mysore War in 1792, was captured by the soldiers of Tipu Sultan. His nose and one hand was cut off. He and 3 of his friends, who had met with the same fate, consulted a person who was only a bricklayer by profession. The bricklayer performed a surgery, which was witnessed by Thomas Cruso and James Findlay, Senior British Surgeons in Bombay Presidency. They described and drew the skin graft procedure and the same was published in the Madras Gazette. It was later reproduced in the October 1794 issue of the Gentleman’s Magazine of London. The surgery was described in the following words:-

“A thin plate of wax is fitted to the stump of the nose so as to make a nose of a good appearance, it is then flattened and laid on the forehead. A line is drawn around the wax which is then of no further use and the surgeon then dissects off as much skin as it had covered, leaving undivided a small slip between the eyes. This slip preserves the circulation till a union has taken place between the new and old parts.

The cicatrix of the stumps of the nose is next paired off and immediately behind the new part an incision is made through the skin which passes around both alae, and goes along the upper lip. The skin now brought down from the forehead and being twisted half around, is inserted into this incision, so that a nose is formed with a double hold above and with its alae and septum below fixed in the incision.”A thin plate of wax is fitted to the stump of the nose so as to make a nose of a good appearance, it is then flattened and laid on the forehead. A line is drawn around the wax which is then of no further use and the surgeon then dissects off as much skin as it had covered, leaving undivided a small slip between the eyes. This slip preserves the circulation till a union has taken place between the new and old parts.

A little Terra Japanica (pale catechu) is softened with water and being spread on slips of cloth, five or six of these are placed over each other to secure the joining. No other dressing but this cement is used for four days. It is then removed and clothes dipped in ghee (clarified butter) are applied. The connecting slip of skin is divided about the twentieth day, when a little more dissection is necessary to improve the appearance of the new nose. Four, five or six days after the operation, the patient is made to lie on his back and on the tenth day bits of soft cloth are put into the nostrils to keep them sufficiently open.”

55. The learned author of the Book Mr.Udwadia, goes on to say that the above occurrence caught the attention J.C.Carpue, a 30 year old Surgeon in London. He successfully used the same skin graft procedure for nose repair on a patient in 1814. He reported his successful results in 1816, introducing the “Hindu Surgical Technique” and with it, “The Indian Nose” to the West.

56. After pointing out that Susruta recommended the use of a facial skin flap for repair of a cleft lip, the author of the book states that Carl Ferdinand Von Graefe (1747-1840) popularised the Indian Surgical Technique of plastic reconstruction of the nose in Germany and Europe.

57. It is common knowledge that smallpox vaccine was invented by Dr.Edward Jenner, an English Physician in 1798. But on the occasion of the opening ceremony of the King’s Institute of Preventive Medicine in February 1905 at Madras, the then Governor of Madras, Lord Ampthill, said the following:-

“It is also very probable, so Colonel King assures me, that the ancient Hindus used animal vaccination secured by transmission of the smallpox virus through the cow, and he bases this interesting theory on a quotation from a writing by Dhanwantari, the greatest of the ancient Hindu physicians, which is so striking and so appropriate to the present occasion that I must take the liberty of reading it to you. It is as follows:

“Take the fluid of the pock on the udder of the cow or on the arm between the shoulder and elbow of a human subject on the point of a lancet, and lance with it, the arm between the shoulders and elbows until the blood appears : then mixing the fluid with the blood the fever of the smallpox will be produced. This is vaccination pure and simple. It would seem from it that Jenner’s great invention was actually forestalled by the ancient Hindus.””It is also very probable, so Colonel King assures me, that the ancient Hindus used animal vaccination secured by transmission of the smallpox virus through the cow, and he bases this interesting theory on a quotation from a writing by Dhanwantari, the greatest of the ancient Hindu physicians, which is so striking and so appropriate to the present occasion that I must take the liberty of reading it to you. It is as follows:

58. As is the case with Ayurveda, the Siddha System of Medicine also has a history which dates back to several centuries. Traditionally believed to have been developed by 18 Siddhas including Sage Agasthiya, the Siddha System of Medicine has its own merits. But unfortunately, due to lack of patronage for the culture of the ancient times, this system of Medicine also suffered to a great extent under the colonial rule. It will be of interest to know that an Allopathy Doctor and Professor by name Dr.C.N.Deivanayagam, who is a Fellow of the Royal College of Physicians (Edinburgh), who retired as the Superintendent of the Government Hospital of Thoracic Medicine, Tambaram, presented a paper titled “HIV/AIDS and Siddha System of Healthcare – an experience of 13 years”. He reported in the said paper that after the Government Hospital of Thoracic Medicine at Tambaram adopted an open door policy for HIV/AIDS in 1992, there was an exponential increase in the number of HIV sufferers seeking care and treatment. While the number of patients were only 2 in 1993, it rose upto 365 in 1996 and 6,791 in the year 2000. Since ARV Drugs could not be provided by the Government to all the patients, the Hospital invited 90 Siddha Physicians to a Seminar to identify suitable Siddha formulations to combat the killer disease. All of them agreed on formulations containing processed Sulphur and processed Mercury to fight the disease. As a consequence, a formulation known as RAN was born as the child of Tambaram. The acronym RAN stands for Rasagandhi Mezhugu, Amukkira Chooranam and Nellikkai Ilagam. It has become an immunogenic and adaptogenic drug. The said Medical Practitionaer demonstrated through laboratory evidence that there was clinical improvement in more than 60% of the patients who received either RAN alone or in combination with OL controlling drugs (reported in the publication “Evaluation of Siddha Medicare in HIV Disease” – JAPI March 2001, 49:390-1. – an indexed Journal).

59. Keeping the above historical perspective in mind, if we look at what happened in the country during colonial rule, it would be clear that there was a systematic campaign, in a subtle manner, to make the indigenous systems of medicine fade away from the public domain. In a paper submitted by Ms.Padma Srinivasan, a Senior Research Officer at the Indian Institute of Health Management Research in the World Health Forum (Vol. 16 – 1995), the Author pointed out that during 19th and first half of the the 20th Century, the traditional systems of medicine were gradually replaced by modern medicine, under the influence of The British Raj. During the period 1920-1940, Provincial Governments and popular leaders like Mahatma Gandhi, made various efforts to reverse this trend. But unfortunately, the country’s first National Healthcare Policy outlined in 1946 by Bhore Committee completely ignored the traditional practices. Subsequent Committees attempted to correct this error and in 1961, the Mudaliar Committee made strong recommendations for integrating modern medicine with the traditional medicine. But by that time, the dominance of modern medicine had become irreversible. The learned Author also made an interesting observation in the said article about the role played by the Central Government vis-a-vis the State Governments. The observations read as follows:-

“At present, most of the larger institutions promoting indigenous systems of medicine are controlled and financed by the State Governments, and little interest is shown at the central level. This is probably because the Central Government depends on support for healthcare from international organisations backed by rich Western countries. Extensive promotion of indigenous systems might jeopardise this support and discourage foreign investment in drugs and healthcare.

..        ..        ..        ..        ..        ..        ..

Two World Bank reports (1,2) recommend that the Government should leave tertiary curative healthcare to the private sector and concentrate on primary healthcare in the rural areas, immunisation and disease eradication programmes. This implies that India should go deeper into international debt by borrowing more money for these programmes, thus supporting the propagation of Western medicine on behalf of the multi-national drug and healthcare companies. Apart from the questionable economics of this prescription, it completely overlooks the existence of alternative systems of medicine and the possibility of using them to ensure healthcare coverage for the rural and urban populations of the nation.”

60. Therefore, it is clear that there has been some resistance worldwide, to the Government patronage of indigenous systems of medicine. But Latin American countries and even China, spend millions of dollars for developing indigenous systems of medicine. The National Health Service of the United Kingdom is said to be funding billions of pounds every year on Homeopathy, despite opposition. In February 2010, the Science and Technology Committee of the British Parliament submitted a report alleging that there is no evidence to show that Homeopathic treatments work better than a placebo. Therefore, the Committee recommended that the National Health Service should cease to provide funds for Homeopathic Hospitals and that Doctors in the N.H.S. System should not refer patients to Homeopaths. The Committee even recommended that the Medicines and Healthcare Products Regulatory Agency (MHPRA) should bar homeopathic treatments from displaying medical claims on their labels. The British Medical Association Junior Doctors Committee even went to the extent of terming Homeopathy as witchcraft. But it is reported in the Print and Electronic Media that the campaign initiated by the Orthodox Medical Profession was effectively countered by a campaign called H:MC21 (Homeopathy: Medicine For the 21st Century) pointing out that more than 100 million European Union citizens, including Prince Charles use Homeopathy for their health care. This has made it difficult for the Science and Technology Committee of the British Parliament to make inroads into State funding of homeopathy.

20. Therefore an exemption notification, which is understood by the respondents to confer a benefit upon the clinical establishments, cannot be made inapplicable to a holistic health care institution such as the petitioner herein, as the same would tantamount to killing our indigenous system of health and well being. A system of medicine which focused mainly on healthy living and not merely a prolonged existence cannot be denied the benefit of the exemption notification on the basis of a misconception that a clinical establishment is one that would treat people after they fall ill and not one which will prevent people from falling ill.

21. There is a very clear distinction between fitness centres or unisex saloons, which provide different types of services to the customers. Their focus is mostly on beauty rather than on maintenance of health. The 2nd respondent appears to have fallen into an error in mixing up both. Therefore, we are of the considered view that even on the basis of the findings of fact recorded by the 2nd respondent, the conclusion reached by him cannot be sustained. Without appreciating the fact that the case of the petitioner would fall clearly within the purview of the exemption notification, the 2nd respondent has made a distinction, which did not exist except in his mind and in the paper. Therefore, the writ petition deserves to be allowed. Accordingly the writ petition is allowed and the impugned order is set aside.

22. As a sequel, pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.

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