Full Judgment Text
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PETITIONER:
STATE OF TAMIL NADU
Vs.
RESPONDENT:
M/S BURMAH SHELL OIL STORAGE & DISTRIBUTINGCO. OF INDIA LTD.
DATE OF JUDGMENT10/10/1972
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
HEGDE, K.S.
KHANNA, HANS RAJ
CITATION:
1973 AIR 1045 1973 SCR (2) 636
1973 SCC (3) 511
CITATOR INFO :
RF 1980 SC2038 (3)
RF 1989 SC 945 (12)
ACT:
Madras General Sales Act 1959--The amendment Act of 1961 and
1964--S.2 d(iii) whether before and after the amendment, the
assessee is liable to Sales Tax for the sale of scrap and
for the sale of tea and edibles in its canteen to its
workmen.
HEADNOTE:
The respondents in these two appeals are Oil Companies and
in C.A. No. 2119/69, the respondent under the Factories Act
had to supply tea and edibles to its workmen for the Canteen
established by it. It also supplied to its agents
calenders, purses and key chains. Both the respondents also
sell periodically as scraps, unserviceable oil drums, rubber
hoses, jerry cans, rims etc.
In C.A. No. 2119/69, the respondent challenged the Sales
Tax, levied under the Madras General Sales Tax Act 1959, in
respect of advertisement materials, canteen sales, sale of
scrap and the penalty. Whereas in C.A. No. 2120/69 only the
Sales Tax levied in respect of sale of scrap and penalty had
been challenged. In both these appeals, the turnover of
sales for the assessment year 1964-65 was divided into 2
parts-(1) 1st April to 31st August 1964 and (2) 1st
September 1964 to 31st March, 1965. The first part was
governed by the Madras General Sales Tax Act, 1959, while
the second part was governed by the Act after its amendment
in 1964.
It was contended before the High Court that the Tribunal was
wrong in holding that the Sales of publicity materials were
chargeable to sales tax on the ground that (a) there was no
sale at all by the assessee in the true sense-, and (b) even
if there was, it was not as a dealer. The High Court held
in favour of the assessee on the ground that the assessee
does not engage itself in trade of publicity materials, and
that sale of scraps and canteen sales were not liable to tax
following its earlier judgment in Deputy Commissioner of
Commercial Taxes, Coimbatore Division, Coimbatore, v. Shri
Thirumagal Mills Ltd., 20 S.T.C. 287.
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Before this Court, as regards the 1st part of the turnover,
the appellant contended that even under the 1959 Act, before
its amendment, transactions which are incidental to trade or
commerce, whether or not profit has been made, are liable to
tax. Secondly, after the amendments in 1964, the definition
of ’business’ and ’casual trader’ has been changed to in-
clude (i) any trade, commerce etc. whether or not such trade
is carried on with a motive to make profit or not. (ii) any
transaction in connection with or incidental to such trade,
commerce etc., and ’casual traders’ meant any person who had
occasional transactions of a business nature involving
buying, selling etc. whether for cash or otherwise.
Therefore, the assessment with respect to the second part of
the turnover is also a valid assessment under the amendment
Act. The respondent contended that under G.O. 2238 dt. 1st
September 1964, canteen sales are exempt from tax. These
were nevertheless included for assessment. Partly allowing
the appeal,
HELD : (i) An attempt to realise price by sale of surplus
unserviceable ,or discarded goods may enter the accounts of
a trader and may on over;all view, enhance his total profit;
but it does not necessarily lead to an
637
inference that business is intended to be carried on in
those goods and the fact that unserviceable goods are sold
does not lead to an inference that business is intended to
be carried on in selling those goods. Therefor--, the
contention of the appellant, so far as the first part of
turnover for 1964-65 is concerned, fails. [640G]
The State of Gujarat v. Raipur Manufacturing Co. Ltd. 19
S.T.C. 1, referred to.
(ii) After the Amendments of 1961 and 1964 of the Madras
General Sales Tax Act 1959, the definition of the word
’business’ and ’casual trader’ has changed considerably.
Profit-motive is now immaterial and the concept of business
in respect of matters ’falling under Sec. 2 (d) (ii) in the
commercial sense put forward and accepted in earlier cases
must be abandoned. [642G]
Hyderabad Asbestos Cement Products Ltd. v. State of Andhra
Pradesh, 30 S.T.C. 26 referred to.
(iii) In the present appeals, the sale of scrap
consisted of spoiled drums, hose pipes etc., were all
connected with the business of the Company. The assessee
being an Oil Company, had to use oil drums, hose pipes etc.,
as part of its trading activity and any sale of
unserviceable goods as scrap is a transaction connected with
its trade or commerce and the turnover in respect of the
sale of the assessee’s advertisement materials, such as,
calendars, wallets etc., are all given by the dealers to its
customers for purposes of increase in sales etc., and
therefore, it is also connected with the business of the
assessee. The respondents, therefore, had been rightly
assessed. [643E]
A.P. State Road Transport Corporation v. Commercial Tax
Officer, 27 S.T.C. 42 and State of Gujarat v. Raipur
Manufacturing Co., 19 S.T.C. 1 discussed and distinguishes.
(iv) In view of the evidence that the assessee had brought
to the notice of the Sales Tax Officer its claim and was
willing to produce the accounts before him, the Sales Tax
Officer will give an opportunity to the assessee to produce
its accounts to show that it subsidized at least 25% of the
total expenses and in running the canteen in order to get
relief under G.O. No. 2238 of the State Government. [645F]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2119 &
2120 of 1969.
Appeals by special leave from the judgment and order dated
August 2, 1967 of the Madras High Court in Tax Cases Nos.
108 and 110 of 1967.
P. Ram Reddy A. V. Rangam and A. Subhashini, for the
appellants. (in both the appeals).
T. A. Ramachandran, for respondent (in C.A. No. 2119/69.
S. T. Desai and A. K. Varma, for the respondent (in C.A.
No. 2120/69).
638
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-These are two appeals by special leave
against the judgment of the Madras High Court. In Appeal
No. 2119/69 the chargeability to sales tax under the Madras
General Sales Tax Act 1959 (hereinafter called the ’Act’) as
amended by Acts of 1961 and 1964 in respect of (1)
advertisement materials (2) canteen sales (3) sale of scrap
and (4) penalty have to be considered, while in Appeal No.
2120/1969 only the sales tax levied in respect of sale of
scrap and penalty has been challenged. The respondents are
oil companies and it appears in the first of the appeals the
respondent under the factories Act had to supply tea and
edibles to its workmen for the canteen established by it.
It also supplies to its agents at cost price or less than
the cost price advertisement materials such as calendars,
purses and key chains. Both the respondents also sell as
scrap periodically unserviceable oil drums, rubber hoses,
jerry cans, rims, unserviceable pipe fittings and old
furniture. The amount of turnover in respect of each if the
items in the respective appeals is not relevant, but what is
relevant is that in both the appeals the year 1964-1965 for
which assessment is made on the turnover of sales is divided
into two parts (i) 1st April to 31st August, 1964 and (ii)
1st September, 1964 to 31st March, 1965, the first part
being governed by the 1959 Act while the second part is
chargeable under the Act after its amendment in 1964 The
definition of business, casual trader and dealer before and
after the amendment is different and the question is,
whether under the amended definition of the said terms on
and after 1964, Act, attracts sales tax on the above
transactions. In the High Court it was contended that the
Tribunal was wrong in holding that sales of publicity
materials were chargeable to sales tax on the ground that
(a) there was no sale at all by the assessee in the true
sense and (b) even if there was, it was not as a dealer.
The High Court dealt with the latter aspect holding that the
object of the respondent is not shown to be to engage itself
in trade or commerce of publicity materials, and though it
may be that the distribution of the publicity materials to
the distributors is connected with the business of the
assessee that will not be sufficient to make it a trade or
an activity in a commercial sense. In this view it held
that it was not a dealer nor is it its business carried on
as a dealer. The High Court also held that the sale of
scrap and canteen sales were not liable to tax following its
earlier judgment in Deputy Commissioner of Commercial Taxes,
Coimbatore Division, Coimbatore v. Sri Thiromagal Mills
Limited(1)
It may be mentioned that in the original Act viz. The
Madras Sales Tax Act, 1939 ’dealer’ was defined as meaning
any person
(1) 20 S. T. C. 287.
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639
who carried on the business of buying and selling goods. In
that Act-there was no definition of a casual dealer nor of
business. The 1959 Act,defined these terms for the first
time and by the Amending Act of 1964 the definition of
business was substituted so as to do away with motive for
making profit or the making of profit as elements in
determining what constitutes a business. Even the
definition of casual trader in the 1959 Act was substituted
by the Amending Act in 1961. These definitions are given
below one against the other for facility of comparison:-
1959 Act
Section 2 (d) "business includes (i) any trade, commerce or
manufacture or any adventure or concern in the nature of
trade, commerce or manufacture, whether or not any Profit
accrues from such. trade, commerce, manufacture, adventure
or concern.
(e) "casuai trader" means a person who has, whether as
principal, agent, or in any other capacity, occasional tran-
cash or for deferred payment, or for commission,
remuneration, or other valuable consideration;
(g)"dealer" means any person who carries on the business of
buying, selling, supplying or distributing goods, directly
or otherwise, whether for cash, or for deferred payment, or
for commission, remuneration or other valuable
consideration, and includes
(i)------
(ii) a casual trader;
After the 1961 and 1964 Amendment Act.
Section 2(d) "business" includes any trade, commerce or
manufacture or any adventure of concern in the nature of
trade, commerce or manufacture whether or not such trade,
commerce, manufacture, adventure or concern is carried on
with a motive to make gain or profit and whether or not any
profit accrues from such trade, commerce, manufacture,
adventure or concern, and or incidental or ancillary to,
such trade, commerce, manufacture, adventure or concern, and
(ii) any transaction in connection with, or incidental or
anciallary to, such trade, commerce, manufacture, adventure
or concern;
(e) "Casual trader" means a person who has, whether as
principal, agent, or in any other capacity, occasional
transactions of a business nature involving the buying,
selling, supply or distribution of goods in the State,
whether for cash, or for deferred payment, or for
commission, remuneration or other valuable consideration.
and who does not reside or has no fixed place of business
within the State;
(g) "dealer". means any person who carries on the business
of buying, selling, supplying or distributing goods directly
or otherwise, whether for cash, or for deferred payment, or
for commission, remuneration or other valuable
consideration, and includes------
(i)----
(ii) a casual trader;
At the outset the learned advocate for the appellant did not
press the contention in respect of the penalty having regard
to the decision of this Court in State of Madras v. Javaraj,
Nadar &
640
Sons(1). In so far as the business turnover for the first
part of the assessable year 1964-65 is concerned it is not
denied that the Act of 1959 prior to its amendment in 1964
is applicable. The contention that the 1964 amendment has
retrospective operation was negatived in State of Tamil Nadu
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v. Thirumagal Mills Ltd.(2) but before this judgment was
rendered the Sales Tax Tribunal had held that that part of
the assessment is also covered by the 1964 amendment. But
the learned advocate for the appellant nonetheless submits
that even under the 1959 Act before its amendment to
transactions which are incidental or ancillary to trade or
commerce whether or not profit has been made, are liable to
tax. This contention was clearly negatived in State of
Gujarat v. Raipur Manufacturing Co. Ltd.(3) In this case
which was under the Bombay Sales Tax Act 1953 where the
definition of a dealer under s. 2(6) is in pari materia with
s. 2(g), the disposal by a company carrying on the business
of manufacturing and selling cotton textiles of its
miscellaneous old and discarded items such as cans, boxes,
cot-ton ropes, rags etc., was held by this Court not to be
carrying on the business of selling these items of goods.
It further stated that from the fact that the sales of these
items were frequent and their volume was large it cannot be
presumed that when the goods were acquired there was an
intention to carry on the business in those discarded
materials, nor are the discarded goods, by-products or
subsidiary products of or arising in the course of
manufacturing process. Shah, J. who spoke, for the Court
observed at pages 7-8 :
"But the question is of intention to carry on
business of selling any particular class of
goods. Undoubtedly from the frequency,
volume, continuity and regularity of
transactions carried on with a profit motive,
an inference that it was intended to carry on
business in the commodity may arise. But it
does not arise merely because the price
received by sale of discarded goods enters the
accounts of the trader and may on an overall
view enhance his total profit, or indirectly
reduce the cost of production of goods in the
business of selling in which he is engaged.
An attempt to realize price by sale of surplus
unserviceable or discarded goods does not
necessarily lead to an inference that business
is intended to be carried on in those goods,
and the fact that unserviceable goods are sold
and not stored so that badly needed space is
available for the business of the assessee
also does not lead to inference that business
is intended to be carried on in selling those
goods.
(1) 28 S.T.C. 700. (3) 19 S.T.C. 1.
(2) 29 S.T.C. 290.
641
The contention on behalf of the State in respect of the
first part of the turnover for 1964-65 therefore fails.
With respect to the second part of the turnover the question
whether the amendments in 1964 to the definition of
"business" and "casual trader" are directly applicable has
to be considered. It will be observed that under the
definition of "business" even commercial transactions
carried on without a motive to make gain or profit, or
whether or not any profit accrues from such activity are
included in that definition. The amended sub clause (ii)
also includes with that definition transaction in connection
with or incidental or ancillary to such trade, manufacture
or adventure or concern. The question is, whether the word
"such" in sub-cl. (ii) of cl. (d) of s. 2 refers to the
trade etc. defined in sub-cl. (i). It was contended before
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the Madras High Court that it is not so and that incidental
or ancillary activity must partake the nature of ’business
in its generic sense. In Dy. Commr. of Commercial Taxes v.
Thirumagal Mills Ltd. (supra) a Bench of that Court had held
that notwithstanding the amendment the presence or absence
of profit will not make any difference. According to it
what has to be considered is that the activity should be of
a commercial character and in the course of trade or
commerce and accordingly the definition of ’business’ in the
second clause was still one invested with commercial
character inasmuch as the reference was to "any transaction
in connection with or incidental or ancillary to any trade,
commerce, manufacture, adventure or concern’. It was
observed that unless the transaction is connected with trade
that is to say, it has something to do with trade or has the
incidence or elements of trade or commerce it will not come
within the definition. The Court observed :
"The words ’in connection with or incidental
or ancillary to’ in the second part of the
definition of "business" in our opinion, still
preserve or retain the requisite that the
transaction should be, in the course of
business understood in a commercial sense.
The intention of Madras Act 15 of 1964 does
not appear to be to bring into the tax net a
transaction of sale or purchase which is not
of commercial character."
In this view it held that the fair price shop which the,
assessee, a spinning mill manufacturing cotton yam, had
opened to make available to its workmen sale of commodities
at fair prices could not be said to be carrying on the
business of selling commodities in the fair price shop in a
trade or commercial sense even if profit accrued to it and
it was therefore with reference to the fair price shop, not
a dealer within the meaning of the Act. This decision
642
does not take note of the words "such" in the second sub-
clause which in our view imports by reference the definition
in sub-cl. (i) into that of sub-cl. (ii). A similar
question came up for consideration before the Andhra Pradesh
High Court on the analogous provisions of the Andhra Pradesh
General Sales Tax’ Act in Hyderabad Asbestos Cement Products
Ltd. v. State of Andhra Pradesh(1). In that case the
assesee company maintained a canteen for the use of workers
in compliance with the provisions of the Factories Act 1948
and the rules made thereunder. The question was, whether
the turnover relating to the supplies of food and drink to
the workers at the canteen could be, charged to sales tax
under the Andhra Pradesh General Sales Tax Act, 1957. The
assessee contended that it was compelled by statute to
provide and maintain a canteen for use of the workers, that
the canteen was not run with a profit motive, as such it
could not be said that there were any sales when food and
drink were supplied to the workers at the canteen and that
even if profit motive was not an ingredient of ’business’ it
must be established that the assessee intended to do
business in food and drink before it could be subjected to
the levy of sales tax. The Court held that in, view of the
definition of "business’ as amended ’by the Amendment Act of
1966, proof of profit motive is unnecessary to constitute
business and that the transaction of supply of food and
drink to the workmen in the canteen maintained by the asses-
see, in pursuance of the Factories Act and the Rules, were
sales and constituted business for the purpose of the Act.
Dealing with the case of Dy. Commissioner of Commercial
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Taxes v. Thirumagal Mills Limited (supra) the learned Judges
said that they were unable to agree with that case as the
Madras High Court had not paid sufficient attention to the
word "such" occurring in the second part of the definition
which according to them obviously referred to the "trade,
commerce, manufacture, adventure or concern" mentioned in
the first part of the definition, that is to say, "trade,
commerce, manufacture, adventure or concern" of which a
motive to make gain of profit is not an essential requisite,
nor was it permissible to hold that there was no "business
in the commercial sense of ’business’ with a motive to make
profit, when such motive has been expressly declared
unnecessary by the Legislature. In their view under both
parts of the definition profit-motive is now immaterial and
the concept of business in respect of matters falling under
See. 2 (d) (ii) in the commercial sense put forward and
accepted in the earlier cases must be abandoned. We think
the view adopted by the Andhra Pradesh High Court is in
consonance with our own reading of the section which we have
indicated earlier.
(1) 30 S. T. C. 26.
643
The learned advocate for the respondent in the second of the
appeals contended that the very two learned Judges of the
Andhra Pradesh High Court had earlier rendered a decision in
A.P. State Road Transport Corpn. v. Commercial Tax
Officer(1) which is in conflict with the Hyderabad Asbestos
Cement Products Ltd. case, and in the latter case the former
case was neither referred to nor distinguished by them. We
think that this comment is the result of an insufficient
appreciation of what was decided in the former case because
therein the assessee was not a dealer and consequently a
seller of scrapped vehicles and other scrap was not liable
to be assessed. It was pointed out at the very outset that
in view of the pronouncements of the Supreme Court, the A.P.
State Road Transport Corporation which is primarily con-
stituted to provide an efficient, adequate, economical and
properly co-ordinate system of road transport service could
not be held to be a dealer carrying on the business in old
and scrapped vehicles and other scrap and it could not be
assessed to sales tax. The Commercial Tax Officer was not,
therefore, right in holding that the assessee Corporation
was a dealer. The chargeable section, viz., s3, makes every
dealer liable to pay tax in respect of the turnover for the
year and consequently the assessee not being a dealer cannot
be assessed to tax under the Act. The sale of scrap in
these appeals which as we have said earlier, consisted of
spoiled drums, hose pipes etc. were all held to be connected
with the business of the company. This finding is a finding
of fact but even otherwise the very nature of the particular
scrap prima facie would indicate that they are connected
with the business of the company. The assessee being an
oil company has to use oil drums, hose pipes, jorry cans
etc. as part of its trading activity and any sale of these
unserviceable goods as scrap is a transaction connected with
its trade or commerce. It is a contended by the respondent
that in State of Gujarat v. Raipur Manufacturing Co. (supra)
this Court had observed at p. 9 that the miscellaneous, old
and discarded items such as stores, machinery iron scrap,
cans, boxes, cotton ropes, rags etc, were held to be not
part of_or incidental to the main business of selling
textiles. This contention in our view does not take into
account the context in which that finding had been given.
In that case, as already pointed out, what was held under
analogous Bombay Sales Tax Act which was similar to that
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under the Madras Sales Tax Act prior to its amendment in
1964, the sale of scrap does not necessarily lead to an
inference that business which was an element in determining
the liability of the dealer for the turnover in such goods
was intended to be carried on in those goods. This Court
had observed, it cannot be presumed, that when the goods
were acquired
(1) 27 S. T. C. 42.
644
there was an intention to carry on business in those
discarded material nor are the discarded goods by-products
or subsidiary products or are produced in the course of
manufacturing process; that they are either fixed assets of
the company or are goods which are incidental to the
acquisition or use of stores or commodities consumed in the
factory and that when these go into the profit and loss
account of the business and may indirectly be said to reduce
the cost of production of the principal item, the disposal
of those goods on that account cannot be said to be part of
or incidental to the main business of selling textiles. As
the scrap in that case was not held to be incidental to the
acquisition or use of stores, or commodities consumed in the
factory, the turnover was not included but in the case of
caustic liquor which is regularly and continuously
accumulated in that tanks in the process of mercirisation of
cloth, this Court held that that being a waste material it
has still a market amongst other manufacturers or launderers
as by products or subsidiary products in the course of
manufacture, and the sale thereof is incidental to the
business of the cornpany. In the view we hold the scrap
sold is certainly connected with die business of the company
and the turnover in respect of this commodity is liable to
tax. It cannot also be said that the turnover in respect of
the sale of the assessees advertisement material at cost
price or less than cost price is not connected with the
business of the assessee. Calenders, wallets and key chains
are all given by the dealers to its customers for purposes
of maintaining and increasing the sales of the products of
the assessee and is therefore connected with the business.
What the, assessee is doing is to facilitate the dealers to
acquire at their cost such advertising materials of a
uniform type approved by the assessee company which instead
of allowing each of them to have these separately printed or
manufactured, itself undertook to do so and supplied them to
its dealers. The supply of such material is in our view
being connected with the business is liable to be included
in the turnover of the assessee.
It is pointed out by the learned advocate for the respondent
in the first of the appeals that under G.O. 2238 dated 1st
September 1964 the canteen sales are exempt and
notwithstanding the fact that the assesee in that appeal has
complied with the terms and conditions of that G.O. the
canteen sales have not been excluded. The G.O. to which
reference is made is in, the following terms:-
"III No. 336 of 1964.--In exercise of the
powers conferred by section 17 of the Madras
General Sales Tax Act, 1959 (Madras Act 1 of
1959), the Governor of Madras hereby exempts,
with effect on and from the 1st September,
1964, the tax payable under the said
645
Act on the sales by all canteens run by an
employer or by the employers on Co-operative
basis on behalf of the employer, under a
statutory obligation without profit motive,
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provided that the employer subsides at least
twenty-five per cent of the total expenses
incurred in running the canteen.
Under this G.O. what has to be established is that the
assessee has subsidised at least 25% of the total expenses
in running the canteen. The Sales Tax Officer disallowed
this amount because the assessee had not produced the
accounts. In the memorandum of appeal to the Appellate
Assistant Commissioner the assessee characterized this
statement as unfair as the Commercial Tax Officer was
invited to state what other records he required but he did
not raise this point during the checking of the accounts.
In support of this grievance a letter of the assessee’s
advocate to the officer was referred. In that letter it was
stated that out of the turnover of Rs. 35,974-96 in respect
of the canteen sales, the assessee had supplied free tea to
the staff of the value of Rs. 13,740-37. It was further
mentioned in that letter that the assessee bears the
expenses towards salaries and amenities provided for the
employees in the. canteen as also the electric charges and
corporation taxes. It also provides free of charge all
equipment including furniture and fittings and a rent free
building for this canteen. It therefore prayed that the
turnover be exempted under the aforesaid G.O. Neither the
Appellate Assistant commissioner nor the Sales Tax Tribunal
considered this aspect nor did the assessee pray for
producing any evidence before them. We think as the assesee
had sufficiently brought to the notice of the Sales Tax
Officer its claim and was willing to produce accounts it
should be permitted to do so. The Sales Tax Tribunal will
give an opportunity to the assessee to produce evidence to
show under the terms of G.O. 2238 it is entitled to
exemption from the turnover in respect of the canteen sales.
In the result both the appeals are dismissed in respect of
levy of penalty. They are partly allowed so far as they are
related to scrap in respect of the second period, 1-9-64 to
31-3-65 and dismissed in respect of the 1st period, 1-4-64
to 31-8-64. In so far as appeal 2119 of 1969 is concerned
it is also partly allowed in respect of the advertisement
materials for the period 1-9-64 to 31-3-65 and dismissed in
respect of the 1st period, 1-4-64 to 31-8-64 and with
respect to canteen sales the appeal dismissed in respect of
the 1st period, 1-4-64 to 31-8-64 and allowed in respect
of the second period 1-9-64 to 31-3-65 and the matter
remanded with the directions given above. There will be no
order as to costs in both these appeals.
S.C. Appeals partly allowed.
646