Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10
PETITIONER:
I. C. I. (INDIA) PRIVATE LTD.
Vs.
RESPONDENT:
C. I. T., WEST BENGAL
DATE OF JUDGMENT20/01/1972
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
BEG, M. HAMEEDULLAH
CITATION:
1972 AIR 1524 1972 SCR (3) 138
1972 SCC (3) 370
CITATOR INFO :
RF 1986 SC1428 (16)
ACT:
Income-tax Act, (1961) ss. 52 and 256-Directions by High
Court to Tribunal to refer questions-Scope of High Court’s
jurisdiction
HEADNOTE:
After negotiations in 1953 with the concerned Department of
the Government of India and the Reserve Bank, a Company,
incorporated in U.K. advanced large sums by way of loans to
its subsidiary in India, namely the assessee, for
subscribing for shares in some Indian Companies. The
correspondence showed that the U.K. Company had the right to
acquire at any time the shares at par, in satisfaction of
the loans. In 1961, the assessee transferred the shares
when called upon by the U.K. Company to do so. The Income-
tax Officer applied s. 52 of the Income-tax Act, 1961, and
assessed the assessee to capital gains tax, which was not in
existence in 1953 but was Reintroduced in the Finance Bill
of 1959. The Income-tax Officer held that the object of the
transfer was to avoid or reduce the assessee’s liability to
capital gains tax. The Appellate Assistant Commissioner
however, held that the assessee was not liable to capital
gains tax, and the Appellate Tribunal, after an elaborate
discussion of the correspondence, confirmed the order,
holding that the transfer was not effected with that object.
The Department applied to the Tribunal to refer the
questions, (i) whether certain documents were not properly
construed, (ii) whether the Tribunal ignored evidence on
essential matters, (iii) whether the finding of the Tribunal
was perverse, and (iv) whether s. 52 was not applicable, as
arising out the Tribunal’s order. The Tribunal rejected the
application.
The Department then moved the High Court and the High Court
directed the Tribunal to state a case in relation to the
four questions, but the High Court did not give any reasons
for doing so.
Allowing the appeal to this Court,
HELD : The High Court can exercise its jurisdiction in the
matter of reference, (a) when the point for determination is
a pure question of law, such as, the construction of a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10
statute or a document of title; (b) when the point for
determination is a mixed question of law and fact-(While the
findings of the Tribunal on the facts are final, its
decision as to the legal effect of the findings is a
question of law. Where, however, the finding is one of
fact, the fact that it is an inference from other basic
facts will not alter its character as one of fact); and (c)
when a finding on a question of fact is perverse. [147C-E]
The necessary ingredients of s. 52 are : (i) there should be
a direct or indirect connection between the person who
acquires a capital asset and the assesee; (ii) the income-
tax officer should have reason to believe that the transfer
was effected with the object of avoidance or reduction of
the liability of the assessee to capital gains; and (iii) if
the first two conditions
139
are satisfied then the full value of consideration for the
transfer may be taken to be the fair market value of the
capital asset on the date of the transfer. The intention
with which a particular transfer is made and the object
which is to be achieved by such transfer are essentially
questions of fact, the conclusion relating to which, are to
be arrived at on a consideration of relevant material; that
is, before the income-tax officer can have any reason to
believe that a transfer was effected with the object
mentioned in the section facts, must exist showing that the
object was to avoid or reduce the liability to capital
gains. [141 H; 142 A-D]
In the present ease, the orders of the Tribunal show that
there was no dispute as to the construction of any
expression in any letter or document, that no relevant
evidence was overlooked, that the inference was drawn from
other facts and, that no question was raised on the
construction of s. 52. When the Tribunal found, as a fact,
that before there was any proposal to reimpose the capital
gains tax which had remained abolished for some time, the
scheme between the assessee and the U.K. Company bad been
fully evolved, the applicability of s. 52 could not be
attracted. The findings of the Tribunal that the object
mentioned in the section could not be held to be established
from the mere absence of a formal agreement between the
assessee and the U.K. Company, is not perverse, but is
supported by evidence and is eminently reasonable. in view
of the clear, cogent and precise findings and conclusions of
the Tribunal, the High Court, should at least have recorded
a speaking order showing how the questions of law of the
nature sought to be referred arose from the order of the
Tribunal. [146 B-D; 141 A-C, F; 148 C.D]
Shree Meenakshi Mills Ltd. v. C.I.T., Madras, 31 I.T.R. 28,
followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1308 of 1970.
Appeal by special leave from the order dated September 8.
1970 of the Calcutta High Court in Income Tax Reference No.
50 of 1971.
N. A. Palkhivala, Veda Vyasa, T. A. Ramachandran and
D. N. Gupta, for the appellant.
Y. S. Desai, S. K. A iyar and H. D. Sharma, for the
respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from an order
of the Calcutta High Court directing the Income-tax
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10
Appellate Tribunal, ’B’ Branch, Calcutta, to draw a
statement of case relating to four questions of law which,
it was stated, arose out of the order of the-Tribunal in the
matter of assessment of the appellant which was the assessee
in respect of the assessment year 1962-63. The Appellate
Tribunal had rejected the application of the Commissioner of
Income-tax requiring it to refer those questions to the High
Court. The High Court, on being moved, issued a rule nisi
and then made it absolute after full arguments without
giving any reasons, whatsoever.
140
The assessee is a 100% subsidiary of Imperial Chemical In-
dustries Ltd., incorporated in the United Kingdom
(hereinafter referred to as I.C.I. for convenience). I.C.I.
advanced large amounts by way of loans to the assessee from
time to time. This, it was claimed, was done for
subscribing to shares in three Indian Companies called
Indian Explosives Ltd., Alkalai & Chemical Corporation of
India and Atic Industries Private Ltd., (hereinafter called
as I.E.L., A.C.C.I and ATIC respectively). Subsequently the
assessee transferred the shares in the aforesaid companies
at par to I.C.I. in satisfaction of the loans advanced by
that company. The Income-tax Officer applied S. 52 of the
Income-tax Act, 1961 (hereinafter called the ’Act’) and
assessed the assessee to capital gains. The Appellate
Assistant Commissioner took the contrary view and held that
on the facts which had been established, the assessee was
not liable to capital gains under the aforesaid section.
The Tribunal upheld the decision of the Appellate Assistant
Commissioner by a detailed and well reasoned order.
Broadly, the case of the assessee was that I.C.I. wanted to
make investments in India in sterling currency. The
assessee was already in existence but the other three
companies which have been mentioned, were incorporated
later. I.C.I. devised a scheme by which it could make the
investment as desired by it and by which it could also take
advantage of the tax relief which could be availed of by the
new enterprises under s. 15(C) and 56.(A) of the Income-tax
Act, 1922. The scheme in short was that I.C.I. would
arrange to let the assessee hold shares in the three com-
panies by investing the money which was to be given by
I.C.I. to the assessee. The modus operandi was that I.C.T.
would give that money by way of loans to the assessee who
agreed that the shares in the three companies would be
transferred to I.C.I. in satisfaction of the loans at par or
issue price as and when desired by I.C.I. All this was done
after negotiations with the concerned Department of the
Government of India at the highest level and with the
approval of the Reserve Bank of India. The entire scheme
was conceived and was put into operation prior to 30th
November 1956 when the Finance Bill was introduced
reimposing capital gains tax which had remained abolished
for certain years. There was a provision for charging
interest by the I.C.I. from the assessee at a rate not
exceeding 1/2% above the Indian Bank rate which came to 51%
per annum but the interest was not to exceed in any case the
dividends received by the assessee from those shares. It
was claimed on behalf of the assessee that this arrangement
was advantageous both to I.C.I. and the assessee, I.C.I.
having taken the risk (of depreciation in shares or
otherwise) attached to the new business pioneering
adventures, ensured that capital appreciation of the shares,
if ’any, also went
141
to itself. The assessee did not suffer any disadvantage
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10
because it had to pay no interest if no dividend was
received and it could keep and get the benefit of any
dividend in excess of 5 1/2%. As a result of I.C.I.
investments being held through the assessee instead of
directly, I.C.I. achieved an advantage of saving tax in U.K.
amounting to pound 68,000 in the relevant years.
In 1959 the structure of Indian taxation regarding the
grossing up of dividends was radically changed and by the
Finance Act 1959, the system of grossing up of dividends
(under s. 16(2) and 18(5) of 1922 Act) was abolished and
intercorporate dividends became liable to income tax at each
stage. Thus, the dividends passing from the three companies
through the assessee to I.C.I. became liable to tax stages.
This affected the net return of I.C.I. on its investments in
the three companies substantially. In these circumstances,
it was decided by I.C.I. that the investments in the three
companies should ’he held by it directly. For that reason
it called upon the assessee in February 1961 to transfer to
it the aforesaid shares in the three companies at the issue
price in satisfaction of the sterling loans in accordance
with the previous agreements. The approval of the Reserve
Bank to these transfers was received in February 1961 and
the transfers were made in March/April 1961. According to
the assessee there was no question of the transfer of shares
having been affected with the object of avoidance or
reduction of the liability of the assessee to capital gains
which alone could attract the applicability of s. 52 of the
Act.
Section 52 is in the following terms
"Consideration for transfer in cases of under-
statement: Where the person who acquires a
capital asset from an assessee is directly or
indirectly connected with the assessee and the
Income-tax Officer has reason to believe that
the transfer was effected with the object of
avoidance or reduction of the liability of the
assessee under s. 45, the full value of the
consideration for the transfer shall, with the
previous approval of the Inspecting Asstt.
Commissioner, be taken to be the fair market
value of the capital asset on the date of the
transfer".
The necessary ingredients of the section are
(i)there should be a direct or indirect connection between
the person who acquires a capital asset and the assessee;
(ii) the Income tax Officer should have reason to believe
that the transfer was effected with the object of avoidance
or reduction of the liability of the assessee to capital
gains; (iii) if the first two conditions are satisfied then
the full value of consideration for the
142
transfer can be taken to be the fair market value of the
capital asset on the date of the transfer.
As regards the first requirement, that was admittedly satis-
fied in the present case. The second requirement could be
satisfied only if there was any cogent material on which the
Income tax Officer could have reason to believe that the
transfers were effected with the object of avoidance and
reduction of liability to capital gains. It is abundantly
clear that the intention with which a particular transfer is
made and the object which is to be achieved by such transfer
is essentially a question of fact the conclusion relating to
which is to be arrived at on a consideration of the relevant
material. In other words, before the Income tax Officer can
have any reason to believe that a transfer was effected with
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10
the object mentioned in the section facts must exist showing
that the object was to avoid or reduce the liability to
capital gains.
The Tribunal examined fully the correspondence and the other
material with regard to each of the three Indian companies
in which the investment had been made of the money advanced
by I.C.I. to the assessee. We may briefly notice the
discussion relating to each company. It was in or about
1949 that I.C.I. was asked by the Government of India to
consider the manufacture of commercial Lasting High
Explosives in India. Negotiations advanced more towards
October 1953 when the representatives of I.C.I. met the
officials of the Government of India. The Tribunal referred
to the minutes of the meeting held on October 1, 1953 as
also on the 6th October 1953. In the final draft of the
Declaration of Intention dated November 5. 1953, it was
mentioned that the Government had agreed that if T.C.I. made
a loan to the assessee the latter would hold the shares in
I.E.L. and that the loan "may be repaid by a transfer of the
shares to I.C.I. at any time". On 21st December 1954, the
assessee applied to the Reserve Bank of India for formal
sanction for borrowing Rs. 160 lakhs from I.C.I. for the
purchase of shares in I.E.L. in terms of the agreement dated
November 5, 1953. It was stated in the letter that I.C.I.
would charge no interest until such time as the shares began
to yield dividends. The loans were advanced from 30th
September 1954 to 30th June 1957 by the I.C.I. to the
assessee of the equivalent of Rs. 160 lakhs in Sterling.
The other correspondence relating to the aforesaid amount
was also noticed by the Tribunal. In 1958 there was a
Rights Issue by I.E.L. I.C.I. agreed to give a loan of Rs.
80 lakhs to the assessee to cover the Sterling requirement
of I.E.L. The assessee was to take up shares of that amount.
The terms of the loan were that I.C.I. had the right to
acquire at any time the shares held by the assessee in
I.E.L.
143
at par in satisfaction of the loan and the rate of interest
payable on the loan was to be I% above the Indian Bank rate.
This was followed by other correspondence and a resolution
which was recorded on 30-9-1958 containing terms of the
second loan of Rs. 80,00,000/-. It is not necessary to
refer to the other correspondence looked into by the
Tribunal with regard to that loan. On 15-2-1961 the
assessee was called upon by I.C.I. to transfer the
investments in satisfaction of the loans. After the
sanction was obtained from the Reserve Bank of India, the
shares were transferred at par. The Tribunal referred to
the undisputed facts relating to the circumstances in which
the scheme for advancing the loan to the assessee for
investment in I.E.L. came to be mooted and was ultimately
approved by the Government. This is what the Tribunal said
:
"The above background would show that the idea
was not to make the assessee the real
beneficial owner of the shares. The fact that
the shares should be held only for a time
beneficially by the assessee is clear from the
"Declaration of Intention" dated 5-11-1953".
Before the Tribunal the counsel for the Department had
accepted the position that if there was an arrangement or
agreement before the reintroduction of capital gains tax he
would have no case. According to him, until the transfers
were actually made of the shares, there was no agreement on
which the parties could have gone to court in order to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10
obtain the share transfers at par in favour of I.C.I. The
Tribunal proceeded first to examine whether there was any
kind of understanding between the assessee and I.C.I.
regarding the transfer of shares at par. After
recapitulating the correspondence and the relevant facts,
the Tribunal came to the following conclusion:
"Taking this along with the minutes of the
meeting with the officials of the Government
of India, in October 1953, it is clear that
the whole idea of I.C.I. throughout was to
make some funds available to the assessee so
that the shares could be acquired in its name
and that the shares could be transferred to
I.C.I. as and when it demanded".
It was, however, stated by the Tribunal that taking into
account the correspondence and the documents referred to
earlier it was satisfied with the assessee’s case that the
transfer of shares to London at issue price or at par was
throughout the basis of the advances of loans to the
assessee. It is necessary to reproduce paragraph 31 of the
order of the Tribunal :-
"In October 1953, there was no mention of any
capital gains tax being revived. At that time
the asses-
144
see could not have had any idea of avoiding or
reducing any liability to capital gains tax.
The learned counsel for the department laid
some emphasis on the fact that there was no
enforceable arrangement. The question as to
whether there was an enforceable arrangement
or not is not really material. What we have
to find out is whether the object in putting
through these transactions of taking over the
shares at par or at issue price was one of
avoidance or reduction of liability to capital
gains tax. That object does not get
established by the mere absence of an
enforceable arrangement. Having regard to the
assessee being the subsidiary of I.C.I., there
is nothing surprising about the arrangement
not being so formal or not being put through
after complying with all the necessary legal
formalities. The absence of formal agreement
is thus understandable in this context and
cannot by itself suggest anything in favour of
the department. Businessmen are not always
motivated by legalistic considerations. Even
taking that the arrangement was only binding
morally and not legally, still so long as the
assessee wanted to fulfil a moral obligation
and had not the capital gains tax in mind, it
cannot be said that the transaction was
entered into with the object of avoidance or
reduction of liability to capital gains tax".
The Tribunal proceeded to say
"We have to find out the object of the,
transaction. It is removed in point of time
from the result. In such a case one cannot
try to infer the object from the results. We
really have to put ourselves at a point of
time when the transaction was
conceived....Taking the materials before us,
we consider that there is nothing to suggest
that the parties had the capital gains tax in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10
their mind in 1953 and later when they put
through the aforesaid transactions. We have,
therefore, to hold that the factual
requisites of section 52 have not been
established here".
In dealing with the second Company, namely, A.C.C.I it was
pointed out by the Tribunal that the scheme for manufactur-
ing Polythene was placed before the Government of India by a
letter of the assessee dated 13-12-1955 addressed to Mr. H.
V. R. lengar, Secretary, Minister of Commerce & Industry, in
which it was specifically stated that to enable the assessee
to subscribe for the new shares I.C.I. would lend the
subscription monies to the assessee on the understanding
that at a later date I.C.I. could acquire at the issue price
these new shares in satisfaction of its
145
loan. The Tribunal dealt with all the relevant facts
relating to the loan advanced to A.C.C.I. including those
stated in the affidavits of P. T. Manzies dated 17-8-1966
and U. R. Newbery dated 10-1-1967 and considered that the
transaction relating to this Company was not in any way
different from those relating to the I.P..L. ATIC, the third
Company was incorporated primarily for the manufacture of
certain Dye-stuffs. On 29-12-1955 I.C.I. agreed to advance
Rs. 25 lakhs as loan to the assessee. The shares acquired
under the loan could be transferred to I.C.I. on request by
the latter at the issue price. I.C.I. waived its right to
interest on the loan until the commencement of the period in
respect of which ATIC paid the dividend. There was a
further loan of Rs. 35,00,000 on the same terms. These
shares were age subsequently required to be transferred to
I.C.I. in February 1961. The Appellate Assistant
Commissioner had referred to the affidavits which had been
filed on behalf of the assessee and had mentioned that the
Department had not cross-examined the deponents. Before the
Tribunal the counsel for the Department stated that he
accepted the affidavits as correct in so far as facts were
concerned but he only disputed the inferences therefrom.
The Tribunal in this connection observed:-
"In our opinion, once the facts mentioned
therein are taken as correct, the inference
that the transaction was not for *he purpose
of avoiding or reducing liability to capital
gains tax has to follow".
Finally the Tribunal, as stated before, confirmed the
decision of the Appellate Assistant Commissioner that the
material on record did not justify the conclusion of the
Income tax Officer that the object of the transfer of the
shares of all the three Companies by the assessee to I.C.I.
was the avoidance of liability to capital gains which would
attract the applicability of s. 52 of the Act.
The Commissioner of Income tax asked for a reference on six
questions. The Tribunal again examined the further
contentions of the Department in its order dated 28-7-1969
by which it declined to make the reference on the ground
that no question of law arose out of the order of the
Appellate Tribunal, Only four questions appear to have been
pressed for being referred. As regards question No. 1
(which was No. 3 before the Tribunal) it was pointed out
that it proceeded on the basis that there was some dispute
about the construction of the correspondence or documents.
The Tribunal observed that there was no such dispute and it
had not been suggested that a particular expression in any
letter or document had been wrongly construed. Regarding
question No. 2 (which was No. 4 before the Tribunal), the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10
Departmental representative was asked to particularise the
docu-
146
ments or evidence omitted from consideration. He referred
to certain documents and evidence which according to him had
not been considered by the Tribunal. The Tribunal made it
cleat that all the relevant materials which had been
referred to had been considered by it. These materials were
distributed over four bulky volumes of typed records and,
therefore, each document could not have been mentioned in
the order. Nothing relevant was actually over-looked. At
any rate the documents on which particular reliance was
placed on behalf of the Department were considered and the
Tribunal observed that the grievance of omission of
materials from consideration related to irrelevant matters.
As regards (the other two questions, the Tribunal observed
that the charge of perversity was only a disparate attempt
at extracting a question of law where, none existed and that
the object or intention of an assessee was always a question
of fact. It was a factual inference to be drawn from other
facts. It was pointed out that on the construction of s.
52, the parties had not joined, any issue.
We may now mention the four questions which the High Court
directed to be referred :-
1. "whether on the facts and in +he
circumstances of the case and on a proper
construction of the documents referred to
and/or considered by it the Tribunal was right
in arriving at the finding that the transfer
of the shares to Imperial Chemical Industries
Ltd., London at the issue price or par was
throughout the basis of the advance of loans
to the assessee ?
2. Whether, in arriving at the said finding
the Tribunal misdirected itself in law in
basing the said finding on evidence covering
some matters only and ignoring, evidence on
other essential matters ?
3. Whether, on the facts and in +,he
circumstances of the case and particularly in
view of the finding that there was no
enforceable agreement making it obligatory
upon the assessee to transfer the shares to
Imperial Chemical Industries Ltd., London, at
par or issue price the conclusion of the
Tribunal that the transfer of the shares by
the assessee to the latter company at par was
not effected with the object of avoidance or
reduction of the liability of the assessee to
capital gains tax was unreasonable or perverse
?
4. Whether, on the facts and in the
circumstances of the case, the Tribunal was
right in holding, that
147
s. 52 of the Income tax Act, 1961, was not
applicable to the facts of the case ?
On the analysis of s. 52 of the Act made by us at a previous
stage and the clear, cogent and precise findings and
conclusions of the Appellate Tribunal, we are wholly unable
to comprehend, how any question of law of the nature sought
to be referred arose; or arises from the order of the
Appellate Tribunal. It is unfortunate that in a case of
this nature and magnitude, the High Court did not choose to
record a speaking order to enable us to appreciate the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10
reasons which prevailed with it for directing the four
questions to be referred. The jurisdiction in the matter of
reference can be exercised (i) when the point for determina-
tion is a pure question of law such ’as construction of a
statute or document of title; (ii) when the point for
determination is a mixed question of law and fact. While
the finding of the Tribunal on the facts is final its
decision as to the legal effect of those findings is a
question of law, (iii) a finding on a question of fact is
open to attack as erroneous in law when there is no evidence
to support it or if it is perverse. Where, however, the
finding is one of fact, the fact that it is an inference
from other basic facts will not alter its character as one
of fact (See Sree Meenakashi Mills Ltd. v., Commissioner of
Income tax, Madras(1). In that case it was held that there
was no question of construction of any statutory provision
or document of title. The issues which arose for
determination, whether the sales entered in books of the ap-
pellant in the names of the intermediaries were genuine, and
if not, to whom the goods were sold ’and for what price,
were all questions of fact. Their determination did not
involve the application of any legal principles to facts
established by the evidence. The findings of the Tribunal
were amply supported by evidence and were eminently
reasonable. It, therefore, followed that there was no
question which could be referred to the Court under s. 66(1)
of the Income tax Act 1922. The same principles will apply
when a reference is sought under s. 256 of the Act. We are
altogether unable to see how findings of the Appellate
Tribunal that the transfer of shares in the present case was
not made with the intention or object of avoidance or
reduction of liability to capital gains were not questions
of fact and did not depend on inference of facts from the
evidence or the material before the Tribunal. It can well
be said that the determination of the question whether the
object of the assessee was to avoid or reduce its liability
to capital gains by making the transfers in question did not
involve the application of any legal principles to the
facts established by the evidence. The findings of the
Tribunal were amply supported by evidence and were eminently
reasonable. It
(1) 31 I.T.R. 28.
148
is true that the amount involved is very large but that
cannot Justify a reference as under S. 256 of the Act
neither the Appellate Tribunal could make a reference nor
could the High Court direct the reference to be made to it
by the Tribunal on pure questions ,of fact.
The learned counsel for the Commissioner has sought to
invite our attention to certain parts of the order of the
Tribunal and, in particular, to the statement extracted by
us at an earlier stage about the question whether the
assessee had held the shares beneficially and the point
which was debated before the Tribunal whether there was any
binding legal agreement between the assessee and I.C.I. for
transfer of the shares at par. We are unable to see how
these matters were relevant for the purpose of determining
the intention or object under-lying the transfer of the
shares to I.C.I. by the assessee. Once the Tribunal came to
the conclusion which was purely one of fact that before
there was any proposal to reimpose capital gains tax which
came to be embodied in the Finance Bill towards the end of
November 1956, the scheme had been fully evolved between the
assessee and I.C.I. of making the loans by the latter to the
former for being invested in the three companies and that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
the shares would be transferred at par by the assessee to
I.C.I. whenever desired, the applicability of s. 52 could
not be attracted as the same depended on certain facts which
must exist or must be found and which had not been so found
by the Tribunal.
In the result the appeal is allowed and the order of the
High ,Court is hereby set aside. The assessee shall be
entitled to its costs in this Court.
V.P.S. Appeal allowed.
149