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Rambhai L. Patel v. Commissioner Of Income-Tax

Gujarat High Court
Aug 9, 2001
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Income-tax Reference No. 130 of 1986

JUDGES

A.R Dave

D.A Mehta, JJ.

ACTS

SECTION 2 FOREIGN EXCHANGE REGULATION ACT 1973

Section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"),

FOREIGN EXCHANGE REGULATION ACT 1973

provisions of the Foreign Exchange Regulation Act and the Rules

FOREIGN EXCHANGE REGULATION ACT 1947

SECTION 73 A FOREIGN EXCHANGE REGULATION ACT

provisions in Section 10(4A) of the Income-tax Act

Section 10(4A) of the Income-tax Act

INCOME TAX ACT

Finance Act, 1968,

FINANCE ACT 1982

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Structured Summary of the Opinion — Question Referred under Section 256(2), Income-tax Act, 1961

Factual and Procedural Background

The question referred to the Court by the Income-tax Appellate Tribunal, Ahmedabad Bench "C", was whether, on the facts and in the circumstances of the case, the interest earned by the assessee was exempt under Section 10(4A) of the Income-tax Act (para 1; blockquote).

The applicant-assessee was a Hindu undivided family whose status under the Income-tax Act was "resident, but not ordinarily resident." The assessment years involved were 1977-78 and 1978-79 (financial years ended March 31, 1977 and March 31, 1978) (para 2).

The assessee had opened a fixed deposit "Non-resident (External) Account" with the Central Bank of India when his status under the Act was "non-resident." For the two years in question the assessee earned interest of Rs. 22,710 and Rs. 52,629 respectively, and claimed the interest to be exempt under Section 10(4A) (para 3).

For assessment year 1977-78 the Income-tax Officer accepted the claim but the Commissioner, invoking Section 263, directed inclusion of the interest in taxable income on the ground that exemption under Section 10(4A) was not available to an assessee who was "not ordinarily resident." The assessee appealed to the Tribunal against the order under Section 263. For assessment year 1978-79 the assessee's appeal to the Appellate Assistant Commissioner failed and the assessee appealed to the Tribunal. The Tribunal heard both appeals together and held that the assessee was not entitled to exemption under Section 10(4A) because the exemption, in their view, was available only to an assessee who is "non-resident" and not to one who is "not ordinarily resident" (para 4-5).

Legal Issues Presented

  1. Whether, on the facts and in the circumstances of the case, the interest earned by the assessee was exempt under Section 10(4A) of the Income-tax Act? (as referred by the Tribunal) (para 1; blockquote).

Arguments of the Parties

Appellant's (Assessee's) Arguments — summarized from submissions of Mr. J. P. Shah

  • The assessee was "non-resident" when the account was opened and therefore should get the benefit of the exemption under Section 10(4A) (para 5(1), para 6).
  • The circular issued by the Reserve Bank of India under the Foreign Exchange Regulation Act and the Rules should have the same binding force as they originate from another government department within the same Ministry, thus lending credibility to the assessee's position (para 5(2), para 6).
  • Section 10(4A) should be interpreted with its object in mind — to encourage bringing foreign currencies into the country — and a literal interpretation should not defeat that object (para 5(3), 5(4)).
  • The 1982 amendment to Section 10(4A) highlighted an existing anomaly and should be treated as declaratory, making it applicable to earlier assessment years as well (para 5(5)).
  • The Department must act with fairness and justice; a mechanical approach should be avoided when applying Section 10(4A) (para 5(6); para 6).
  • Since the Government (through the Department of Banking) continued to use the funds deposited, interest on those funds should remain exempt; the assessee's subsequent change in status should not defeat the exemption entitlement that arose when the moneys were deposited (para 6).
  • The term "non-resident" in Section 2(30) of the Income-tax Act should be read in light of popular understanding or the definition in the Foreign Exchange Regulation Act because of the compelling circumstances (para 6).

Respondent's (Revenue's) Arguments — summarized from submissions of Shri Akil Kureshi

  • The statutory definition of "non-resident" in Section 2(30) of the Income-tax Act must be read in the context of definitions of "resident" (Section 6) and "not ordinarily resident" (Section 6(6)) of the Act; it is not permissible to import the meaning of "not ordinarily resident" into "non-resident" (para 7).
  • Where the Legislature intended an inclusion it did so expressly (reference to mention of Sections 92, 93 and 168 in Clause 2(30)); there is nothing in the context of Section 10(4A) that would permit reading "not ordinarily resident" as "non-resident" (para 7).
  • Section 10(4A) specifies conditions; only on fulfilment of those conditions does an assessee qualify for exemption; entitlement under FERA does not automatically create entitlement under the Income-tax Act (para 7).
  • The provisions of Section 10(4A) were clear and unambiguous as they stood before the 1982 amendment, so the amendment cannot be treated as retrospectively clarificatory to apply to earlier years (para 7).
  • Reserve Bank of India circulars were issued under Section 73 of the Foreign Exchange Regulation Act and the Reserve Bank had no power to grant exemption under the Income-tax Act; any claim in a circular that creates such exemption is a misreading of powers and cannot have the force of a statutory provision (para 7).
  • Counsel relied on the Supreme Court decision in Tarulata Shyam v. CIT to submit that when statutory wording is clear and unambiguous there is no scope to import or substitute words — arguing that Section 10(4A)'s words are plain and admit no other meaning (para 8).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Tarulata Shyam v. CIT, [1977] 108 ITR 345 Principle that where the wording of a statutory provision is clear and unambiguous, there is no scope for importing or substituting words into the provision (para 8). The Revenue relied on this decision to argue for a literal reading of Section 10(4A). The Court recorded that submission (para 8) but the ultimate decision did not adopt a rigid literal approach in the circumstances before it (see Court's reasoning and conclusion).
K.V. Muthu v. Angamuthu Ammal, AIR 1997 SC 628 When interpreting a definition, the interpretation should not be repugnant to the context and should aid achievement of the purpose of the Act; constructions defeating the Act's purpose should be ignored (para 30-31; blockquote). The Court reproduced this principle to support reading the term "non-resident" in Section 10(4A) in its contextual setting so as to achieve the statute's object (para 30-31; 17, 18).
Taiyabji Lukmanji v. CIT, (1981) 131 ITR 643 Authorities and Tribunals should consider the credibility of the Department and the practical effects of departmental statements/advertisements or instructions; policy and principle questions must be met squarely with regard to departmental credibility (para 33-34; blockquote). The Court invoked this approach to justify assessing the case from the standpoint of the credibility of the Department and to support granting the assessee the benefit of exemption in view of the circular and the Department's representations (para 19-20).

Court's Reasoning and Analysis

The Court analysed the issue by reference to the legislative intent, the Central Board of Direct Taxes circular dated July 6, 1968, the Reserve Bank of India's scheme and rules for Non-resident (External) Accounts, and the statutory language before and after the 1982 amendment.

Key steps in the Court's reasoning (drawn from the opinion text):

  1. The circular of July 6, 1968 (issued after the Finance Act, 1968 amendment effective from April 1, 1969) clarified that the exemption was intended only in respect of interest on funds which are repatriable outside India, and that the exemption would be available in respect of interest on moneys standing to the credit of a non-resident in a "Non-resident (External) Account" maintained in accordance with the Foreign Exchange Regulation Act and Reserve Bank rules (para 9; quoted circular at para 16-17).
  2. The Court observed that the Reserve Bank of India's scheme for Non-resident (External) Accounts permitted Indians and persons of Indian origin who are "not resident in India" as defined in Section 2(q) of the Foreign Exchange Regulation Act, 1973, to open such accounts (para 11-12). The Non-resident (External) Account Rules were notified in 1970 (para 12).
  3. It was undisputed that the assessee was permitted to open a Non-resident (External) F.D. Account when his status was "non-resident" and that for the years under consideration his status under the Income-tax Act was "not ordinarily resident" while he qualified as "not resident in India" under Section 2(q) of the Foreign Exchange Regulation Act. Thus, he was eligible to open and operate the account as per RBI rules (para 13).
  4. The Court emphasised that the legislative intent was to limit the exemption to interest on repatriable funds and to interest credited in Non-resident (External) Accounts maintained under the Foreign Exchange Regulation Act and RBI rules; therefore those rules and the RBI scheme must be considered in ascertaining eligibility under Section 10(4A) (para 10).
  5. The Court compared the text of Section 10(4A) as it stood from 1969 to 1982 with the amended version effective April 1, 1982. The 1982 amendment substituted "in the case of a person resident outside India" and included an explanation referencing clause (q) of Section 2 of the Foreign Exchange Regulation Act (para 14-15, 26-28).
  6. The Court concluded that the content of the 1968 circular had been incorporated into the statutory scheme by the 1982 amendment and therefore the position created by the circular (treating those eligible under the RBI scheme as entitled to the exemption) applied up to March 31, 1982, and thereafter by the statute itself. The Court characterised the 1982 amendment as declaratory of legislative intent as reflected in the circular (para 16, 29).
  7. The Court held that the term "non-resident" in Section 2(30) of the Income-tax Act must be read in the contextual setting of Section 10(4A) and, when so read, should include the meaning prescribed under the Foreign Exchange Regulation Act and RBI rules — i.e., a person who is not resident in India for FERA purposes and eligible to maintain a Non-resident (External) Account (para 17, 18).
  8. The Court noted the parties' debate on promissory estoppel but, without deciding that doctrine, preferred to approach the question from the angle of departmental credibility and policy — relying on the reasoning in Taiyabji Lukmanji v. CIT — and concluded that, in the light of the circular and credibility considerations, the assessee should be granted the benefit of the exemption (para 19-20).
  9. On this basis, the Court held that the Tribunal was not justified in denying the assessee the claim that the interest was exempt under Section 10(4A) (para 21).

Holding and Implications

Holding: The Court answered the referred question in the affirmative — i.e., in favour of the assessee and against the Revenue — holding that the interest earned by the assessee was exempt under Section 10(4A) of the Income-tax Act (para 21).

Implications and direct effects (as stated in the opinion):

  • The assessee is entitled to the exemption under Section 10(4A) for the interest in question (para 21).
  • The Court recorded that the circular dated July 6, 1968 set out the legislative intent, and that the 1982 amendment embodied that position; the Court described the amendment as declaratory of legislative intent (para 16, 29). On that basis the entitlement applied up to March 31, 1982 by virtue of the circular and thereafter by the statute itself (para 16, 29).
  • The reference was disposed of accordingly, with no order as to costs (para 22).

The opinion confines its reasoning to the facts, the circular and statutory text; it does not purport to lay down a general rule beyond the circumstances addressed and applies the circular, the RBI scheme and the contextual reading of "non-resident" to the present factual matrix.

Show all summary ...

1. The following question of law has been referred to us under Section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), by the Income-tax Appellate Tribunal, Ahmedabad Bench "C", Ahmedabad, for the opinion of this court :

"Whether, on the facts and in the circumstances of the case, the interest earned by the assessee was exempt under Section 10(4A) ?"

2. The applicant-assessee is a Hindu undivided family and the status under the Act is "resident, but not ordinarily resident". The assessment years involved in this reference are 1977-78 and 1978-79 and the relevant accounting periods are the financial years ended on March 31, 1977, and March 31, 1978, respectively.

3. The applicant-assessee opened an account with the Central Bank of India which was a fixed deposit account and the same was treated as "Nonresident (External) Account" as per the provisions of the Foreign Exchange Regulation Act, 1947. The status of the assessee under the Act was "nonresident" when the aforesaid account was opened. For the two years under consideration the assessee earned interest of Rs. 22,710 and Rs. 52,629, respectively, and the said interest was claimed to be exempt under the provisions of Section 10(4A) of the Act.

4. For the assessment year 1977-78, the claim was accepted by the Income-tax Officer while for the assessment year 1978-79 the claim was rejected. For the first year, i.e., the assessment year 1977-78, the Commissioner of Income-tax, under Section 263 of the Act, directed the Income-tax Officer to include the interest earned by the assessee in the taxable income on the ground that the exemption provided by Section 10(4A) of the Act was not available to an assessee who was "not ordinarily resident". The assessee preferred an appeal before the Tribunal against the aforesaid order under section 263 of the Act. For the second year the assessee's appeal before the Appellate Assistant Commissioner failed and the assessee preferred a second appeal before the Tribunal. The Tribunal heard both the appeals together and held that the assessee was not entitled to the exemption granted under Section 10(4A) of the Act, as the exemption was available only in case of an assessee who is "non-resident", while the assessee was "not ordinarily resident" as defined under the Act.

5. Mr. J. P. Shah, learned counsel for the assessee, made the following points :

(1) that the assessee was "non-resident" when the account was opened and, therefore, the benefit should he available ;

(2) that it was a question of credibility of the Government of India and not the Income-tax Department, because the circular issued by the Reserve Bank of India under the provisions of the Foreign Exchange Regulation Act, and the Rules thereunder should also have the same binding force as they were from another Government Department falling under the same Ministry ;

(3) that the provisions of Section 10(4A) of the Act must be interpreted keeping the object of the provisions in mind, namely, to bring foreign currencies in the country ;

(4) literal interpretation of the provisions should be avoided if it defeated object of the provisions ;

(5) that the amendment made in 1982 specifically highlighted the fact that anomaly existed and hence the amendment should be held to be declaratory and should thus be made applicable for the earlier assessment years also ;

(6) that while reading the provisions of Section 10(4A) of the Act a mechanical approach should be avoided and the Department must act with fairness and justice.

6. It was further contended by Mr. Shah that when the Government of India, through the Department of Banking, continued to use the funds deposited by the assessee it was necessary that the interest earned on those funds should continue to be exempt, especially in view of the fact that the assessee was admittedly "non-resident" when the moneys were deposited and the subsequent change in status should not be pleaded against the assessee for denying the exemption under Section 10(4A) of the Act. It was further contended that though the term "non-resident" was defined under Section 2(30) of the Act, the same should be interpreted as understood popularly or at least, as understood and defined under the Foreign Exchange Regulation Act, because of the compelling circumstances surrounding the case of the assessee. For this proposition, our attention was invited to the opening portion of Section 2 wherein the phrase "unless the context otherwise requires" has been used.

7. Shri Akil Kureshi, learned standing counsel appearing on behalf of the respondent-department, has referred to the definition of "non-resident" within the meaning of Section 2(30) of the Act and urged that the said definition has to be read in the context of the meaning of "resident" as defined in Section 6 and "not ordinarily resident" as defined in Section 6(6) of the Act. According to Mr. Kureshi, it was not possible to urge the meaning of "non-resident" as including "not ordinarily resident" for the purposes of Section 10(4A) of the Act; as where the Legislature intended such inclusion it had specifically provided and for this purpose our attention was drawn to the mention of Sections 92, 93 and 168 of the Act in the definition Clause 2(30) of the Act defining the term "non-resident". Mr. Kureshi further submitted that there was nothing in the context of Section 10(4A) of the Act which would permit reading the term "not ordinarily resident" so as to mean "non-resident" ; that Section 10(4A) specifies two conditions and only on fulfilment of the said conditions, did an assessee qualify for the exemption granted by the said provision ; that merely because an assessee was entitled to be treated as person not resident in India under the Foreign Exchange Regulation Act it did not permit him to automatically qualify for exemption under Section 10(4A) of the Act. It was further submitted that the provisions of Section 10(4A) of the Act are clear, unequivocal and the bare reading of the same clearly showed that no other interpretation was possible and it was only in this context that the Legislature amended the provisions in 1982. It was further urged that the amendment of 1982 being clarificatory in nature cannot be applied retrospectively, and to the contrary, by virtue of the said amendment it was abundantly clear that the provisions as they stood before the amendment were not applicable in cases of persons who did not fulfil the criteria of being "non-resident" within the meaning of the Income-tax Act. Referring to the circulars issued by the Reserve Bank of India, it was submitted that the same were issued under Section 73 of the Foreign Exchange Regulation Act, and the Reserve Bank of India had no powers to grant exemption under the provisions of the Income-tax Act and even if it was so mentioned in the circular, it was a misreading of powers by the said authorities and the said circular cannot have the force of the statutory provision.

8. Mr. Kureshi, pointedly drew our attention to the decision of the Supreme Court in the case of Tarulata Shyam v. CIT [1977] 108 ITR 345, and submitted that as stated thereunder when the wordings of the provision are clear and unambiguous, when they plainly manifest what is stated therein, there is no scope for importing or substituting words in the provision, and the provisions of Section 10(4A) of the Act are such where it is not possible to ascribe any other meaning to the words "not resident".

9. When the Finance Act, 1968, amended and altered the exemption originally granted by Section 10(4A) of the Act with effect from April 1, 1969, the Central Board of Direct Taxes issued Circular No. 6-P (LXXVI-66) of 1968, dated July 6, 1968. The relevant portion from the said circular reads as under :

"115. Interest income of non-residents from non-resident accounts in a bank in India--Under the provisions in Section 10(4A) of the Income-tax Act prior to its amendment by the Finance Act, 1968, a non-resident was exempt from tax on his income by way of interest on moneys standing to his credit in a non-resident account in any bank in India in accordance with the Foreign Exchange Regulation Act, 1947, and any rules made thereunder. The intention underlying this provision has been to provide the exemption in respect of interest only on funds which are repatriable outside India. In order to bring out this intention, Section 10(4A) of the Income-tax Act has been amended by the Finance Act, 1968. Under the amended provision, the exemption will be available only in respect of interest on moneys standing to the credit of a non-resident in a 'Non-resident (External) Account' in any bank in India in accordance with the Foreign Exchange Regulation Act, 1947, and any rules made thereunder. The Rules in this behalf will be made and notified by the Reserve Bank of India. This provision takes effect, prospectively, from the assessment year 1969-70" [Circular No. 6-P (LXXVI-66) of 1968, dated 6th July, 1968]."

10. Thus the legislative intent underlying the provisions is to provide exemption in respect of interest earned only on funds which are repatriable outside India. It is further clear that the exemption will be available in respect of interest on moneys credited in "Non-resident (External) Account" in the case of "non-resident" ; that such account has to be maintained in accordance with the Foreign Exchange Regulation Act and the Rules made thereunder, and such rules are to be made and notified by the Reserve Bank of India. Therefore, the rules and the scheme framed by the Reserve Bank of India for the purpose of opening and operating a "Nonresident (External) Account" will have to be taken into consideration for the purpose of ascertaining the eligibility of an assessee to claim exemption under Section 10(4A) of the Act.

11. The scheme for opening and maintenance of a "non-resident account" is designated in foreign currencies with authorised dealers in foreign exchange as framed by the Reserve Bank of India is available at page 41 of the paper-book and the eligibility for opening an account is in the following terms :

Eligibility for opening accounts :

The benefit of the scheme will be available to all individuals, being Indians and persons of Indian origin who are not resident in India. For the purpose of this scheme, non-residents will be persons resident outside India as defined in Section 2(q) of the Foreign Exchange Regulation Act, 1973. Companies, firms, bodies, corporate and other associations of persons, by whatever name called, will not be eligible to open foreign currency (non-resident) accounts under the scheme,

12. Thus, a person who is an individual, will be permitted to open non-resident account and will be treated as "non-resident" for the purposes of operating "Non-resident (External) Account", if he is an Indian or a person of Indian origin who is not resident in India. It is further clarified that a person shall be held to be "not resident in India" as defined in Section 2(q) of the Foreign Exchange Regulation Act, 1973. It is pertinent to note that the Non-resident (External) Account, Rules, 1970, were published by the Government of India under the Notification No. G. S. R. 265, dated February 10, 1970.

13. Admittedly, in the case of the assessee, he was permitted to open "Nonresident (External) F. D. Account" when his status was "non-resident" within the meaning of the Act. Further, there is no dispute that even for the years under consideration, the status of the assessee was "not ordinarily resident" and he was a person who was not resident in India within the meaning of the provisions of Section 2(q) of the Foreign Exchange Regulation Act, 1973, and thus was eligible to open and operate a "Non-resident (External) Account" as per the rules and the scheme framed by the Reserve Bank of India. The effect of this situation is that by virtue of the aforesaid circular dated July 6, 1968, the assessee who fulfils the eligibility conditions under the scheme framed by the Reserve Bank of India was entitled to operate "Non-resident (External) Account" and in the light of the same he would be entitled to the benefit of being treated as "non-resident" for the purposes of the Act as specified in the circular issued by the Central Board of Direct Taxes.

14. The provision of section 10(4a) as was effective from April 1, 1969, up to March 31, 1982, reads as follows :

"(4A) in the case of a non-resident, any income from interest on moneys standing to his credit in a Non-resident (External) Account in any bank in India in accordance with the Foreign Exchange Regulation Act, 1947 (7 of 1947), and any rules made thereunder ;"

15. The amended provision as substituted with effect from April 1, 1982, by the Finance Act, 1982, reads as under :

"(4A) in the case of a person resident outside India, any income from interest on moneys standing to his credit in a Non-resident (External) Account in any bank in India in accordance with the Foreign Exchange Regulation Act, 1973 (46 of 1973), and any rules made thereunder :

Explanation.--In this clause, 'person resident outside India' shall have the meaning assigned to it in clause (q) of Section 2 of the Foreign Exchange Regulation Act, 1973 (46 of 1973) ."

16. Therefore, what was stated by way of circular being Circular No. 6-P (LXXVI-66) of 1968, dated July 6, 1968, was incorporated as part of the provisions with effect from April 1, 1982. Therefore, the position in relation to an assessee who is otherwise eligible to open and operate "Non-resident (External) Account as per the guidelines issued by the Reserve Bank of India is that such a person is entitled to be treated as "non-resident" for the purpose of exemption under Section 10(4A) of the Act by virtue of the circular dated July 6, 1968, up to March 31, 1982, and by virtue of the provision itself with effect from April 1, 1982. The amendment is thus declaratory of the legislative intent as can be gauged from the circular and even on that count the assessee would be entitled to the relief claimed.

17. Even otherwise the term "non-resident" as defined in Section 2(30) of the Act has to be read in the contextual setting of Section 10(4A) of the Act and if read in that manner the term "non-resident" will have to include within its fold the meaning as prescribed under the provisions of the Foreign Exchange Regulation Act and the Rules thereunder. Thus, Section 10(4A) of the Act will apply to a person who is not resident in India, that is to say, "non-resident" will be a person residing outside India. We may usefully reproduce from the decision of the Supreme Court in the case of K.V Muthu v. Angamuthu Ammal., AIR 1997 SC 628, where it is stated (page 631) :

"While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted."

18. As already seen, the circular of July 6, 1968, specifically declares the object of the provisions and incorporates the provisions of the Foreign Exchange Regulation Act and the Rules framed thereunder by the Reserve Bank of India in Section 10(4A) of the Act. Thus, those provisions should be applicable to a person claiming exemption under Section 10(4A) of the Act and in this situation also the context requires that the term "non-resident" should be read so as to include the definition of the non-resident as understood under the provisions of the Foreign Exchange Regulation Act and the Rules thereunder.

19. During the course of hearing we were addressed at great length by both the sides on the applicability or otherwise of doctrine of promissory estoppel. However, without going into that aspect of the matter we feel that the matter should be approached from another angle as stated by this court in the case of Taiyabji Lukmanji v. CIT (1981] 131 ITR 643, wherein it was observed that (page 646) :

In our opinion, the Tribunal ought to have considered the question as regards the legality and propriety of levying penalty under Section 271(1)(c) of the Act in the light of the instructions given by the Board in the advertisement referred to above. Whether or not it amounted to promissory estoppel and created a legal right apart, the question was required to be examined from the standpoint of the credibility of the Department. Would it not cause greater harm to the Department itself if assessees who respond to its appeals and desire to cleanse themselves of the past sins are deterred from doing so ? In a way, in the long run, it might be counter productive to do so. All these questions cannot be elbowed aside. They have to be met squarely in the face by the revenue authorities and the Tribunal by addressing themselves to it and answering the same in the manner considered right by them on policy and principle.

20. Therefore, even from the standpoint of the credibility of the Department and in the light of the aforesaid circular it is necessary that the asses-see should be granted benefit of the exemption under Section 10(4A) of the Act.

21. In the light of what is stated hereinbefore we hold that the Tribunal was not justified in denying the claim of the assessee that the interest earned by the assessee was exempt under Section 10(4A) of the Act. The question referred to us is, therefore, answered in the affirmative, i.e., in favour of the assessee and against the Revenue.

22. The reference stands disposed of accordingly with no order as to costs.

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