C.I.T. West Bengal Ii, Calcutta v. Coal Shipment (P) Ltd.

Judgment

C.I.T. WEST BENGAL II, CALCUTTA COAL SHIPMENT (P) LTD. October 14, 1971 [1<. S. HEGDE, A. N. GROVER AND H. R. KHANNA, JJ.J Income-tax Act, (II of 1922)." 10(2)(xv)-Payments made to rival trader to ward off cofnpetition-When constitutes revenue or capital expen•diture. In pursuance of an agreement . between the assessee-respondent and another firm L & ·Co., by which, L agreed to assist the respondent in procuring coal for export whenever asked to do so and not to export any coal during the subsistence of the agreement, L supp1ied various quantities of coal to the respondent and tm respondent made .payments as per the agreement. The respondent claimed the payments as admisstuk expenditure under s. 10(2) (xv) of thi> Income-tax Act. 1922, duting the relevant assessment years. The Department held that they were payments. to secure a monopoly and were therefore not allowable as reve11ue •x· penditure.

The Tribunal found that the respondent did not acquire any monopoly rights, that the payments were only made to carry on trade in a more facile and profitable mannel', that the arrangement was a temporary measure liable to be terminated at will, that the respondent did not derive any advantage of an enduring character and that therefot e. the· expenditure was attributable to revenue and not to capital. and held in favour of the assessec. The High Court, on reference, agre~ing with the· findings of the Tribunal and holding that the consideration was not ouid once for all but was related to uncertain shipments to be mad~, decided io· favour of the assessee.

In appeal to tnts Court it was contended tb.at though the payment for assistance to the respondent i11 procuring coal was an item of revenueexpenditure, that part of the payment which was made because of L agreeing,, not to export coal during the subsistence of the agreement constituted a L:apital expenditure and not a revenue expenditure. Dismissing the appeal, HELD : Although payments made to ward off competition in business to a rival dealer would constitute capital expenditure if the object of making that payment is to derive an advantage by eliminating the competition over some length. of time, the same result would not follow if the·re is no. certainty of the duration of the advantage and the same can be put to an end at any time. How long the period of contemplated advantage should be in order to constitute an enduring benefit would depend upon the circumstances and facts of each individual case.

An enduring benefit need not be of an everlasting character, but it should not, at the same time, beso transitory and ephemeral that it can be terminated at any time at the· volition of any of the parties. [1096 B; 1097 B-'C] Further, the payments were relaied to the. actual shipments of coal in tbe course' of the trading activities of the respondent and had no relation to the capital value of the assets. The payments were not related t<i or tied up irl any way to any llMd sum agreed between the p~tties. lt was not a case .of mtin<!p(Jly value J1SYtnents bei11g permitted to be paid in instalments giving a false apj!eatsttcd elf periodicity. [1fJtJ1 F-G; 1099 0-Hl [1972] l S.C.R. Travancore Sugars and Chemica/.r Ltd. v. C.l.T., Kerala 62 I.T.R. 566, followed. Atherton v. British Insulated and Halaby Cables Ltd. 10 T.C. 155, Robert Addie and Sons' Collieries Ltd. v. Commissioners of Inland Revenue, 8 T. C 67 I, Assam-Bengal Cement Co. Ltd. v. C. I. T., West Bengal, i1 I.T.R. 34, Com111issioner of Taxes Nchanga Consolidated Copper Mines Ltd. 58 l.T.R. 241 and Hanrikesen (Inspector of Taxes) v. Grafton Hotel Ltd., JI I.T.R. 10, referred to.

C1v1L APPELLATE JURISDICTION : Civil Appeals Nos. I 494 to 1498 of 1971. Appeals by special leave from the judgment and order dated November 15, 1967 of the Calcutta High Court in Income-tax Reference No. 13 of 1963. S. T. Desai, S. K. Ai.var, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals). N. A. Palkhivala,. T. A. Ramachandran and D. N. Gupta, for the respondent (in all the appeals). The J udgm~nt of the Court was delivered by - Khanna, J. This judgment would dispose of five Civil Appeal Nos. 1494 to 1498 of 1971 by Special Leave filed by the Commissioner of Income-tax, West Bengal against the judgment of Calcutta High Court whereby the question referred to that Court under section 66 ( 1) of the Indian Income-tax Act, 1922 (hereinafter referred to as· the Act) for fiye assessment years was answered in-favour of the assessee-resoondent-Coal Shipments (P) Ltdo;

During the pendency of the appeals, the name of the respondent was changed to Heilgers Investment Ltd. The matwr relates to the assessment years 1951-52, 1952-53, 1953-54, 1954-55 and 1955-56, the correwonding accounting years for which ended on 31-3-1951, 31-3-1952, 31-3-1953, 31-3-1954 and 31-3-1955 respectively. The respondent was one of the companies which exported coal from India to Burma before the Second World War. Amongst the other exporters were Messrs, Kanmchand Thaper & Bros. Ltd., Messrs. Macheill Barry Ltd., M<!ssrs. Andrew Yule & Co. Ltd. and Messrs. R. V. Low & Co. Ltd. The shipment of coal to Burma Railways before the war was the subject of open tenckr. After the cessation of hostilities \n 1946, it became possible to resume the export of coal to Burma. In order to overcome the difficulties in the conduct of the trade following the war, the members of th>~ coal trade in Bengal formed an association styled Coal Exporters and Charters Association.

The respondent company as ·well as M/s. H. V. Low & Co. Ltd. were two of the major members C.J.T. v. COAL SHIPMENT (P) LTD. (Khanna, J.) of the said association. When Ml s. H. V. Low & Co. learnt of th~ resumption of coal export to Burma by the respondent in 1946, they also expressed intention to export coal to Burma. Thereupon the rtwo companies came to an und·~rstanding and arrived at a mutual arrangement or agreement on: the following lines :- ( i) Mis. H. V. Low & Co. Ltd. would not export coal to Burma durinp; the subsistence of the· agreement. (ii) Mis. H. V. Low & Co. Ltd. would assist the respondent in procuring coal for shipment ito Burma. (iii) The respondent would carry on the coal shipping business and pay Mis. H. V. Low & Co. Ud. @Rs. -151. per ton (subsequently raised to ;Rs. l-5- per \on) of coal shipped to Burma.

According to the respondent, the last shipment of coal under the above arrangement was made in June, 1954 a~ter which the arrangement came to an end automatically and the Government of Burma made some other arrangement for its coal requirement. The assessee respondent claimed to have made _the following payments to M:ts. H. V. Low & Co. Ltd. or their nominees in pursuance 9f the aforesaid agreement during the period of five accounting years from 1st April, 1950 to March 31, 1955 :- Rs. 1951-52 . 91,149 1952-53 . 1,77.898 19'53-54 . 3,03,631 1954-55 . 2,32,355 1955-56 . 79,917 The amounts mentioned above were taxed-in the hands of Mis. H. V. Low & Co. Ltd. The respondent claimed the payment of the above amounts as admissible business expenditure for the assessment years in question.

The Income-tax Officer held that the expenditures claimed could not be allowed, as there was no written agreement in proof of the alleged arrangement and it was not possible· to say that the payments were made for the purpose of the assessee's business. The Income-tax Officer further held that even assuming that the payments were made to keep off Mis. H. V. Low & Co. Ltd. from the Burma trade, they were payments to secure a. monopoly and were not, therefore, allowable as revenue expenditure. The Appellate Assistant Commissioner on appeal upheld the order of the I.ncome-tax Officer. When the matter came up in second appeal before the Incometax Appellate Tribunal, the Tribunal found that there was some !092 [1972] l S.C.R. discrepancy in the facts stated on behalf of the assessee and the Revenue. The Tribunal thereupon required the respondent company to swear an affidavit in support of the facts relied upon by it.

In pursuance thereof, Sir Walter Michelmore, Director o[ Managing Agents of the respondent compa.ny filed an affidavit. Sir Walter was also examined orally before the Tribunal. The case was thereupon remanded 'to the Income-tax Officer to ver1fy the facts as stated in the affidavit of Sir Walter and re_port back to the Tribunal. The Income-tax Officer after making further investigation submitted his report. In deciding the appeal, the Tribunal formulated two points for its decision : ( 1) Were the payments made for the purpose of the assessee's trade in terms of the alleged agreement? (2) If the answer to the above question is in the affirm~­ tive, did the assessee acquire a monopoly by such payment? Both the questions were answered in favour of the respondent by the Tribunal. It was held that the payments were made in pursuance o& the alleged agreement in the i.nterest of the respondent's trade. The version of the respondent about its agreement with Mis. H. V. Low & Co. Ltd. was accepted.

According to the agreement, M/s. H. V. Low & Co. Ltd. agreed to assist the respondent in procuring coal for export to Burma whenever asked to do and further agreed not to export coal to Burma during the sub.sistence of the arrangement. The agreement was found to have been acted upo.n and it was held that M/s. H. V. Low & Co. Ltd. supplied varying quantities of coal to the respondent for shipment to Burma. It was further held that the respondent company did not acquire any monopoly rights to carry o,n Burma trade ~nd the impugned payments were made to carry on the trade in a more facile and profitable manner. The Tribunal found that the arrangement arrived at verbally between the respondent and M/s. H. V. Low & Co. Ltd. was a temporary measure liable to be terminated at will and the respondent company did not derive any advantage of an enduring character by such payments. The expenditures in question were, in the opinion of the Tribunal, attribuwble to revenue and not to capital.

As such, they were held to be pem1issible expe,nditures under section 10(2) (xv) of the Act. On application filed by the Revenue, the following question was referred to the High Court :- "Whether on the facts and in the circumstances of the case, the payme.nts made by the assessee to M/s. H. V. Low & Co. Ltd. or their nominees were of a capital nature and as such not allowable under section 10(2) (xv) of the Income-tax Act, 1922 ?" 8 c.r.T. V. COAL SHIPMENT ( P) LTD. (Khanna, J.) It was not disputed before the High Court that there wa3 &n agreement between the respondent and M/s. H. V. Low & Co. Ltd. on terms stated by the respondent and that the payment; in question were made under that agreement. The High Court hdd that the arrangement entered into by the respondent with Mis. H. V. Low & Co. Ltd. was not such as was likely to have an enduring beneficial effect. ln the opinion of the High C Jurt, there was no certainty of duration and the arrangement could b.~ terminated or revoked at any time.

The consideration of the arrangement, it was observed, was not paid once for all but was related to uncertain shipments to be made. Th·~ arrangement, it was further held, did not create any monopoly or bring about any capital advantage to the assessee. The respondent was held en- , titled to claim the deduction of the expenditures under section 10(2) (xv) of the Act. In the result, the question referred to the Court was answered in the negative and in favour of the ass~sscc. We have heard Mr. Desai on behalf of the appellant and Mr. Palkhiwala on behalf of the respondent and are of the opinion that there is no merit in these appeals. The Tribunal has found that the amounts in question were paid by the respondent to M/s. H. V. Low & Co. Ltd. in pursuance of the agreement according to which M/s. H. V. Low & Co. Ltd. were to assist the respondent in procuring coal for shipment to Burma and were themselves not to export coal to Burma during the subsistence of the agreement.

The above findings of fact are, for the purpose of these proceedings, binding upon the appellant and consequently no attempt was made either in the High Court or in this Court to assail them. The payments which were made by the respondent to M/s. H. V. Low & Co. Ltd., it would thus appear, were because of the assistance rendered by them for shipment of coal to Burma and for abstaining from exporting coal to Burma during the subsistence of the agreement. So far as the payment is concerned which was made to M/s. H. V. Low & Co. Ltd. for assistance to the respondent in procuring coal for shipment to Burma, it was admittedly an item of revenue expenditure. The controversy between the parties has centered on the point as to whether that part of the payment which was made because of M/s. H. ".· Low & C?. Ltd. having agreed riot to export coal to Burma durmg the subsistence of the agreement constituted capital expenditure or revenue expenditure. Mr. Desai on behalf of the appellant contends that as the payment was made for warding off competition by rival coal exporter. that payment should be held to be a capital expenditure.

T'· ~ fact that there was no certainty of the duration of the arrangement between the respondent and M/s. H. V. Low & Co. and the same could be ierminated at any time, according to the learn~d counsel, [ 1972] l 5.C.R. is wholly immaterial. As against that, Mr. Palkhiwala argues that in order to constitute capital expenditure, the object of the expenditure should be to secure an advantage of enduring nature. When there is no certainty of the duration of the arrangement and the same can be revoked at any time, the advantage cannot be said to be of an enduring character and the expenditure cannot be held to be of a capital nature. Further as the payment was related to the quantum of coal shipped to Burma in the course of trading activity and was not connected with the capital value of the assets, the payment, Mr. Palkhiwala submits, should be considered to be revenue expenditure. In our opinion, there is considerable force in Mr. Palkhiwala's submission.

Judicial decisions have, from time to time, laid down some broad principles in order to determine whether an expenditure is of a capital nature or revenue nature. Despite the enunciation of those principles, it is not always easy to decide the question ~n the context of the circumstances of an individual case. ~onsiderable difficulty is experienced in border line cases. It was in this connection that Hidayatullah, J. (as he then was) observed in Abdul Kayoom v. Commissioner of Income-tax(1) that "none of the tests (laid down in various authorities) is either exhaustive or universal. Each case must depend on its own facts, and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases .... by matching the colour of the one case against the colour of another".

It may be apposite at this stage to refer to some of the broad tests which have been laid down to distinguish the capital expenditure from revenue expenditure. In the case of Atherton v. British Insulated and Helsby Cables Ltd.('), Lord Cave, L.C. laid down the following criterion which has been referred. to in most of the subsequent cases :- "But when an expenditure is made, not only once .and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of the special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital." The Courts have to bear in mind, according to the dictum laid down in the above case, whether it was an expenditure forming t "part of the cost of the income-earning machine or structure" as (!) 441.T.J. 689. (2) 10 T.C. 155. C.I.T. v. COAL SHIPMENT (P) LTD. (Khanna,!.)

I 095 opposed to part of "the cost of performing the income earning operations". In that case, the House of Lords dealt with a fund which had been created by the respondent company as a nucleus of a pension fund for its employees. After handing over the money to trustees for the employees, the company claimed that the money should be charged to revenue. The claim of the company was rejected by the House of Lords on the ground that the payment of money created for itself an enduring benefit or advantage which was 0f a capital nature. fo the caoe of Robert Addie and Sons' Collieries Limited v. The Commissioners of Inland Revenue(1), Lord President Clyde gave the following test :- "It is necessary accordingly to attend to the true nature of the expenditure, and to ask one's self the question, is it a part of the Company's working expenses ?-is it expenditure laid out as part of the process of profit earning ?-or, on the other hand, is it a capital outlay ?-is it expenditure necessary for the acquisition of property or of rights of a permanent character, the process of which is a condition of carrying on its trade at all ?

The expression ·once and for all' used in the dictum laid down in Atherton's case (supra) was referred to by Bhagwati, J. speaking for this Court in the case of Assam Bengal Cement Co. Ltd. v. Commissioner of Income-tax, West Bengal(') and it was observed that the expression was used to denote art expenditure which is made once and for all for procuring an enduring benefit to the business as distinguished from a recurring expenditure in the nature of operational expenses. The character of the payment can be determined, it was added, by looking at what is the true nature of the asset which has been acquired and not by the fact whether it is a payment in a lump sum or by instalments. It is also an accepted proposition that. the words 'permanent' and 'enduring' are only relative terms and not synonymous with perpetual or ever-lasting. There are some other tests like those of fixed capital and circulating capital for determining the <!lature of the expenditure.

An item of disbursement can be regarded as capital expenditure when it is referable to fixed capital. It is revenue when it can be attributed to circulating capital. It is not the case of any party that this test of fixed and circulating capital can be invoked in this case nor has reference been made to some of the other tests. The case which has been set up on behalf of the revenue is that as the object of making the payments in question was to eliminate competition of a rival exporter, the qenefit which enured to the respon- (!) 8 T.C.' 671. (2) 27 l.T.R. 34. SUPREME COURT RbPORTS dent was of an enduring nature and as such, the payment should be treated as capital expenditure. We find ourselves unable to accede lo this contention because we find that the arrange'h1ent between the respondent and M/s. H. V. Low & Co. Ltd. was not for any fixed term but could be terminated at any time at the volition of any of the parties.

Although an enduring benefit need not be of an ever-lasting character, it should not, at the same time, be so transitory and ephemeral that it can be terminated at any time at the volition of any of the parties. Any other view would have the effect of rendering the word 'enduring' to be meaningless. No cogent ground or valid reason has been given to us in support of the contention that even though the benefit from the arrnngement to the respondent may not be of a permanent or enduring nature, the payments made in pursuance of that arrangement would still be capital expenditure. Such a contention indeed was repelled by the Judicial Committee in the case of Commissioner of Taxes v. Nchanga Consolidated Copper Mines Ltd.('). The respondent company in that case together with two other companies-Rhokana Corporation Ltd. and Bancroft Mines Ltd. formed a group for carrying on the business of copper mining.

Following a steep fall in the price of copper in the world market the group, in common with other producers, decided voluntarily to cut their production by I 0 per cent. In effecting the cut, it was agreed that Bancroft Mines Ltd. should cease production for one year and that the respondent company and Rhokana Corporal.ion Ltd. ;hould undertake between them the whole group programme for the year reduced by the overall cut of 10 per cent. It was further agreed to pay a sum of Bancroft Mines Ltd. to compensate it for the abandonment of the production for the year. Question arose whether the compensation which the respondent company had pa id to Bancroft Mines Ltd. was expenditure of capital nature ? The Judicial Committee held that the compensation paid was an allowable deduction in determining the respondent company's taxable income.

The expenditure, in the view of the Judicial Committee, had no analogy with expenditure for the purpose of acquiring a business or a benefit of long term or enduring contract. Viscount Radcliffe who delivered the judgment while dealing with the question of expenditure observed : "It bought one right only, the right to have Bancroft out of production for 12 months. While, no doubt, money paid to acquire a business or to shut a business down for good or to acquire some contractual right to last for years may well be capital expenditure, it seems a contr;ldiction in terms to speak of what Nchanga thus acquired, which exhausted itself and was created (I) 58 I.T.R. 241. C.I.T, v. COAL SHIPMENT (P) LTD, (Khanna, I.) 10.97 to exhaust itself within the 12 months' period within which profits are ascertained, as constituting an enduring benefit or as an accretion to the capital or incomeearning structure of the business.

If the expenditure is to be treated as capital expenditure at all, it cannot be for any reason such as that". Although we agree that payment made to ward off competition in business to a rival dealer would constitute capital expenditure if the object of making that payment is to derive an advantage by eliminating the competition over some length of time, the .same result would not follow if there is no certainty of the duration of the advantage and the same can be put to a!)_ end at any time. How long the period of contemplated advantage should be in order to constitute enduring benefit would depend upon the circumstances and the facts of each individual case. In the case of .Assam Bengal Cemen; Co. Ltd.( 1), the appellant company acquired from the Government of Assam .a lease of certain lime-stone quarries for a period of twenty years for the purpose of carrying on the manufacture of cement.

In addition to the rent and royalties, the appellant agreed to pay the lessor annually a sum of Rs. 5,000/- during the whole period .of the lease as a protection fee and in consideration of that payment the lessor undertook not to grant to any person any lease, permit or prospecting licence for lime-stone in a group of quarries without a condition that no lim~stone should be used for the manufacture of cement. The appellant also agreed to pay Rs. 35,000/- annually for five years as a further protection fee and the lessor in consideration of that payment gave a similar undertaking in respect of the whole district. It was held by this Court that as a result of the annual payment of the amounts of Rs. 5,000/- and Rs. 35,000/-, there enured an advanrage to the appellant for the whole period of the lease and as such it was capital expenditure. Apart from the above, we find that the payments made to M/s. H. V. Low & Co. Ltd. were related to the actual shipment of coal in the course of the trading activities of the respondent and had no relation to the capital value of the assets.

The payments 'were not related to or tied up in any way to any fixed sum agreed between the parties. The dictum laid down by this .Court in Travancore Sugars and Chemicals Ltd. v. Commissionu of Income-tax, Kera/a(') in the circumstances is attracted. The appellant company in that case was to take over the assets of sµgac manufacturing concern, a distillery and .a tincture factory of ~ Government of Travancore. The promoters of the !lppella.nt tOlllPMY in that connection entered into an agreement ~th (I) '1:7 I.T.R. 34. 18-LH9 Sup Cl/72 (2) 62 l.T.R. 566. 1098. [l 972] l S.C.R the Government. The cash consideration for the sale of the assets of the sugar manufacturing concern was Rs. 3.25 Jakhs, that for the sale of the distillery was agreed to be arrived at as a result of joint valuation and that for the sale of the assets of the tincture factory was the book value.

The Government agreed to recognise the transfer of the licence for the distillery to the appellant company and to secure the continuance of the licence for a period of 5 years after the termination of the existing licence. The Government also agreed to purchase the pharmaceutical products manufactured by the appellant company. Apart from the cash consideration, clause 7 of the agreement provided that the Government would be entitled to 20 per cent of the annual net profits subject to a maximum of Rs. 40,000/- after providing for depreciation and remuneration of the secretaries and treasurers. Clause 7 was amended in January, 1947 to the effect that the Government would be entitled to I 0 per cent of the annual net profits. Question arose whether an amount of Rs. 42,480/- which was payable under clause 7 of the agreement was a permissible expenditure under section 10 of the Incometax Act.

It was held that the above payment was in the nature of revenue expenditure and not capital expenditure. Ramaswami, J. speaking for the Court dealt with the matter m the following words :- "Examining the transaction from this point of view, it is clear in the present case that the consideration for the sale of the three undertakings in favour of the appe:- lant was : ( I) the cash consideration mentioned in the principal agreement, vi~. clauses 3, 4(a) and 5(a) and (2) the consideration that Government shall be e·ntitled to twenty per cent of the net profits earned by the appellant in every year subject to a maximum of Rs. 40,000/- per annum. With regard to the second part of the consideration there are three important points to be noticed. In the first place, the payment of commission of twenty per cent on the net profits by the appellant in favour of the Government is for an indefinite period and has no limitation of time 'attached to it.

In the second place, the payment of the commission is related to the annual profits which flow from the trading activities of the appellant-company and the payment has no relation to the capital value of the assets. In the third place, the annual payment of 20 per cent commission every year is not related to or tied up, in any way, to any fixed sum agreed between the parties as part of the purchase price of the three undertakings. There is no reference to any capital sum in 11 t u C.J.T. V. COAL SHIPMENT (P} LTD, (Khanna, J.) this part of the agreement. On the contrary, the very nature of the payments excludes the idea that any connection with the capital sum was intended ·by the partil)S." The above observations, in our opinion, have a direct bearing on the present case. Mr. Desai has referred to the following observations of Lord Greens in Henriksen (Inspector of Taxes)

Grafton Hotel Ltd.(') :- "It appears to me that there can be no difference in yrinciple between a payment out-and-out for monopory value and a payment in respect of a term. Each licence granted for a term must stand by itself since an application for its renewal falls to be treated as an application for a new licence. This is what I mean when I say that there is a false appearance of periodicity about these payments. Whenever a licence is granted for a term, the payment is made as on a puG chase of a monopoly for that term. When a licence is granted for a subsequent term, the monopoly value must be paid in respect of that term, and so on. The payments are recurrent if the licence is renewed; they are not periodical, so as to give them the quality of payments which ought to be debited to revenue account. The thing that is paid for is of a permanent quality, although its permanence, being conditioned by the length of the term, is short-lived.

A payment of this character appears to me to fall into the same class as the payment of a premium on the grant of a lease which is admittedly not deductible''. Particular reliance has beei;t placed by Mr. Desai upon the concluding part of the above observations. The portion relied upon, in our opinion, hai to be read in the context of the preceding lines and the facts of that case. The lessees of the licenced premises in that case, under a covenant in their lease, paid annually certain sums imposed by the licensing justices as instalments of the monopoly on the grant and renewal of the licence for three years period. It was contended that those sums were not capital payments but should be regarded as revenue payments. It was held that monopoly value payments were imposed for the term of the licence on grant or renewal though the fact that permission was given to pay by yearly instalments gave a false appearance of periodicity.

Such payments, in the opinion of the Court, fell into the same class as a premfum paicl (I) 11 l.T.R. JO. SUPR.EM.B COURT REPORTS [1972) 1 s.c.a. on the grant of a lease and as such should be regarded as of capital nature. It is obvious that the question involved in that case was different and the appellant can derive no assistance from it. The appeals consequently fail and are dismissed with costs. One set of costs. V.P.S. Appeals dismissed.