The Judgment of the Court was delivered by

Sen, J.:— This reference arises out of an assessment of Duncan Brothers & Co., under the Companies (Profits) Surtax Act, 1964 (hereinafter referred to as “the said Act”), in the assessment year 1965-66, the previous year whereof ended on the 31st December, 1964.

2. Under the said Act, a special tax is levied on the “chargeable profits” of a Company, to be computed in accordance with the provisions contained in the First Schedule thereto. The Second Schedule to the said Act contains rules for computing the capital of a company. Under the Third Schedule to the Act surtax is charged on the amount by which the “chargeable profits” exceed the amount of statutory deduction. The part of the chargeable amount as does not exceed 5% of the amount of capital as computed in accordance with the Second Schedule is taxed at the rate of 25%. On the balance, if any, of the chargeable amount, tax is charged at the rate of 40%. In the assessment, the assessee had claimed that under r. 2 of the Second Schedule to the said Act its capital should be diminished by the cost of its assets, the income from which was excluded from its total income in computing its chargeable profits, less two funds, being a provision for taxation of Rs. 31,78,000 and proposed dividend being Rs. 15,90,000. The ITO did not accept the contentions of the assessee and computed the capital without taking into account the said funds.

3. Being aggrieved by the order of the ITO the assessee preferred an appeal. It was contended before the AAC that the provision for taxation and the proposed dividend should be deducted under r. 2 of the Second Schedule to the Act. The AAC took note of a decision of the Tribunal in respect of an earlier assessment and held that the provision for taxation and the proposed dividend were reserves and could not be deducted in computing the capital under the First Schedule, but he held that the dividend proposed to be distributed by the assessee was a surplus and this had to be deducted from the investments in working out the capital. The appeal of the assessee was partly allowed.

4. Being still aggrieved the assessee preferred a further appeal to the Income-tax Appellate Tribunal.

5. It was contended before the Tribunal that the provision for taxation should have been allowed as a reserve in the computation of the capital of the assessee and in support of this contention the decision in CIT v. Security Printers of India (P.) Ltd., [1972] 86 ITR 210 (All) was cited. In view of the Explanation introduced in the First Schedule to the said Act the Tribunal rejected the contention and held that a provision for taxation cannot be treated as reserve or surplus or fund for the purpose of computation of capital in terms of r. 1 of the First Schedule to the said Act.

6. Thereafter, the assessee filed a miscellaneous application before the Tribunal contending that the Tribunal had not discussed in its order whether in the computation of its capital the assessee would be entitled to the benefit of the deduction of the provision for taxation from the cost of its investments in terms of r. 2 of the Second. Schedule to the said Act.

7. The Tribunal held that at the hearing the representative of the assessee did not canvass the same. The departmental representative for the revenue submitted that the notes left by his predecessor-in-office who appeared at the hearing did not contain any reference to this point having been urged on behalf of the assessee. The Tribunal, accordingly, rejected the miscellaneous application.

8. On an application of the assessee under s. 256(2) of the I.T Act, 1961, read with s. 18 of the Companies (Profits) Surtax Act, 1964, this court directed the Tribunal to draw up a statement of case and to refer the following questions as questions of law arising out of the order of the Tribunal:

“1. Whether, on the facts and in the Circumstances of the case, the Tribunal was right in holding that, in the computation of capital the company was not entitled for the inclusion of the provision for taxation as a reserve or surplus or fund for the purpose of computation of capital in terms of rule 1 of the First Schedule of the Companies (Profits) Surtax Act, 1964?

2. If the answer to the above is in the affirmative whether the Tribunal was right in not deciding on the claim of the company that it should get the benefit of deduction of provision for taxation from its cost of investments in terms of clause (ii) of rule 2 of the Second Schedule of the Companies (Profits) Surtax Act, 1964?

3. If the answer to question No. 2 is in the negative whether the company is entitled to the deduction of provision for taxation from its cost of investment in terms of clause (ii) of rule 2 of the Second Schedule of the Companies (Profits) Surtax Act, 1964?”

9. Mr. K. Ray, learned counsel for the assessee has contended at the hearing that so fat as question No. 1 is concerned it was covered by a decision of this court in Duncan Brothers, and Co. Ltd. v. CIT, [1978] 111 ITR 885, where it was held that a provision for taxation was not a reserve as to form part of the capital of a company under r. 1 of the Second Schedule to the Super Profits Tax Act, 1963. Mr. Ray conceded that following the same it must be held that a provision for taxation was, also not a reserve within the meaning of the Companies (Profits) Surtax Act, 1964, and, therefore, the first question had to be answered in the affirmative and in favour of the revenue.

10. On question No. 2, Mr. Ray submitted that the Tribunal erred in not deciding the question as to the deductibility of the amount set apart as a provision for taxation from the cost of its investments under cl. (ii) of r. 2 of the Second Schedule to the Act raised by the assessee in its grounds of appeal. He submitted that this point had been specifically raised before the ITO. The point was also urged before the AAC who only allowed the deduction of the proposed dividend-from the cost of investments, but not the other item, namely, the provision for taxation. Mr. Ray contended that this was the only point which the. Tribunal had really to decide in the appeal inasmuch as the other ground relating to the deduction of the Pakistan tax had not been expressly pressed. The only other contention as to whether the provision for taxation was a reserve or not did not really arise because this point had not been canvassed by the assessee at any earlier stage.

11. Mr. Ray has also drawn our attention to the records in Income-tax Reference No. 371 of 1975 intituled Duncan Brothers and Co. Ltd. v. CIT, where the revenue had come up in appeal against the same order of the AAC in allowing the deduction of the amount of the proposed dividend from the cost of investments of the assessee under cl. (ii) of r. 2 of the Second Schedule for the purpose of computation of capital. Mr. Ray contended that the Appellate Tribunal heard the appeal of the revenue on the same day as the present appeal and in the appeal preferred by the revenue the question of deductibility of a fund from the cost of investments was thoroughly discussed. The Tribunal, after hearing the parties, allowed the appeal of the revenue.

12. Mr. Ray submitted further that in the above facts and circumstances it must be held that the assessee had raised the question before the Tribunal though the Tribunal had not dealt with it in its order and, therefore, question No. 2 had to be answered. He submitted that, even otherwise, the question having been raised before the Tribunal but not dealt with by it, it was a case covered by the well-known decision of the Supreme Court in CIT v. Scindia Steam Navigation Co. Ltd., [1961] 42 ITR 589 and, therefore, it was open to this court to deal with question No. 3 without dealing with question No. 2.

13. In support of his contentions, Mr. Ray cited the following decisions:

(a) Stroud's Judicial Dictionary, 4th Edn., Vol. 1, P. 155. This was cited for the definition of the expression “, appeal” as stated by Lord Davey in Ponnamma v. Arumogam, [1905] AC 383, 390 (PC) as follows:

“…… an appeal, strictly so called, is one ‘in which the question is, whether the order of the court from which the appeal is brought was right on the materials which that court had before it.”

Ram Datta Sita Ram of Basti, In re, [1947] 15 ITR 61 (All) [FB]. This was cited for the following proposition laid down by the Allahabad High Court (p. 83):

“… if the legality of an order is questioned, it is a question of law arising out of that order itself within the meaning of the first proviso to sub-section (2) of section 66 of the Act.”

(c) Senairam Doongarmall v. Commissioner Of Income-Tax, Assam, [1956] 29 ITR 122, where a Division Bench of the Assam High Court held, inter Jalia, as follows (p. 146):

“It must however be observed that the omissions complained of have exposed the orders of the Tribunal to just criticism. The orders ought to be complete and it should not be necessary in a mandamus petition or in a petition under section 66(2) of the Income-tax Act to presume what happened at the hearing. ‘If a point is argued it should be dealt with and disposed of in express terms, however weak the argument or baseless the contention. If a point raised in the ground of appeal is not pressed at the hearing, the fact itself should be stated. The Tribunal being the final authority on facts it is desirable that its views on facts should be stated comprehensively to cover all points in controversy. Omissions in the order can give rise to questions of law. The assessee should know on what basis any contention raised has been rejected. The order should embody a complete picture of what happens at the hearing.”

(d) New India Life Assurance Co. Ltd. v. CIT, [1957] 31 ITR 844. In this case, it was laid down by the Bombay High Court that the power of a Tribunal was confined to dealing with the subject-matter of the appeal and that the subject-matter of the appeal was constituted by the grounds of appeal preferred by the appellant.

(e) CIT v. Scindia Steam Navigation Co. Ltd., [1961] 42 ITR 589 (SC). This was cited for the following from the majority judgment (p. 611):

“When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order.”

(f) S. Chenniappa Mudaliar v. Commissioner Of Income-Tax, Madras, [1964] 53 ITR 323. In this case, a Special Bench of the Madras High Court laid down the following propositions:

(i) The order of the Appellate Tribunal should be co-related to the actual subject-matter in controversy.

(ii) The terms of section 33(4) itself appear to suggest that the Tribunal is intended to dispose of the appeal on its merits.

(iii) The fact that opportunity had not been availed of by the appellant cannot obviously discharge the obligation cast on the Tribunal of passing orders on the appeal, that is, on the merits of the appeal.

The court went on to consider the decision of the Supreme Court in Scindia Steam Navigation Co. Ltd., [1961] 42 ITR 589 (SC), and held that where there was a dismissal of an appeal for default by the Tribunal, the matter would come under the second category of cases, namely, when a question of law is raised before the Tribunal, but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it and is, therefore, one arising out of its order. In such a case, the High Court would have jurisdiction to entertain a reference on the question.

(g) Esthuri Aswathiah v. Commissioner Of Income Tax, Mysore, [1967] 66 ITR 478. This decision was cited for the following observation of the Supreme Court (pp. 481-482):

“The function of the Tribunal in hearing an appeal is purely judicial. It is under a duty to decide all questions of fact and law raised in the appeal before it: for that purpose it must consider whether on the materials relied upon by the assessee his plea is made out.”

(h) CIT v. Mahalakshmi Textile Mitts Ltd., [1967] 66 ITR 710 (SC). The facts in this case were that the assessee carried on business of manufacture and sale of cotton yarn. In the relevant assessment year the assessee had spent certain sums for the introduction of a new system in its plant and claimed development rebate for the introduction thereof. The ITO disallowed the claim or the ground; that the introduction did not involve the installation of new machinery. This order was confirmed by the AAC. Before the Tribunal, the assessee, besides submitting its claim for development rebate, also urged that the amount laid out for the introduction of the new system was, in any event, allowable expenditure under s. 10. (2)(v) of the Indian I.T Act, 1922. The. Tribunal accepted such Contention and held that the amount so spent was admissible as an allowance under s. 10(2)(v). A question thereafter arose. whether the Tribunal had jurisdiction to allow, the claim, under s. 10(2)(v). In a final appeal, the Supreme Court held that there was no restriction in, the I.T Act on the Tribunal to determine a question raised before” the departmental authorities, the subject-matter of the appeal remaining the same. The Tribunal was competent to hold that the deduction of “the expenditure was allowable under s. 10(2)(v) and not otherwise…

(i) Cit Bihar v. M/S Kirkend Coal Co. , [1969] 74 ITR 67. This decision of, the Supreme Court was cited for the following observations (p. 72):

“But in a reference under section 66. of the “Indian Income-tax Act, 1922, only the question which was either raise or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently, include an enquiry into other matters which could have been, but were not, ‘raised or argued.”

(j) CIT v. Indian. Molasses Co. P. Ltd., [1970] 78 ITR 474. This decision of the Supreme Court was cited for the following, observations (p. 480):

“Granting that an aspect of the question was not argued before the Tribunal, the question was on that account hot one which did not arise out of the order of the Tribunal. In pur judgment, the expression ‘question of law arising out of such order.’ in section. 66(1) is not’ restricted to take in only those questions which, have been expressly argued and decided by the Tribunal. If a question of law is raised before the Tribunal, even if an aspect of that question is not raised, in our judgment’, that aspect may be urged before the High Court.

14. Mr. A.K Sengupta, nearned’. counsel for the revenue, contended, on the other hand, that the mere raising of a question in the grounds of appeal was not enough to establish that a particular question of law was raised before the Tribunal. He submitted that a ground must be expressly urged before the Tribunal before it can be said that it had been raised. He submitted that a large number of grounds were usually taken in the grounds of appeal most of which were not actually pressed at the hearing. Therefore, it should riot be held that because a ground has been taken in the appeal, the same has Been raised. In support of his contritions, Mr. Sengupta cited the following decisions:

(a) Estate of the late A.M.K.M Karuppan Chettiar v. CIT, [1969] 72 ITR 403 (SC). This decision was Cited for the following observations of the Supreme Court (p. 407)

We are unable to agree With the High Court that the question Whether a notice under section 34 issued by the Income-tax Officer on March 2, 1957, was incompetent did riot arise out of the Order of the Tribunal. It is Clear from the statement of the case (vide paragraph 7] that Karuppan Chettiar had submitted before the Appellate Assistant Commissioner that section 34(1)(a) was inapplicable since the returns made tinder section 22(3) had not been disposed of Before the Tribunal also that contention was raised (vide paragraph 9 of the statement of Case). The question was raised before the Tribunal: Even if it was not expressly dealt with By the Tribunal, it still arose out of the order of the Tribunal: Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd., [1961] 42 ITR 589 (SC).

(b)Thakur Sukhpal Singh v. Thakur Kalyun Singh, AIR 1963 SC 146. This decision was cited for the following observations of the Supreme Court (pp. 148-149):

“It is urged that the judgment of the appellate court has to state the points for determination, the decision thereon and the reasons for the decision, and these the appellate court cannot do till it has gone through the record and considered the entire matter on record including the judgment under appeal. These matters have to been the judgment when points. In dispute between the parties are raised before the appellate court. If no such points are raised for consideration the appellate judgment cannot refer to the points for determination in its judgment and when there be no points raised for determination, there can possibly be no decision there on and no reasons for such decision. Such is the position when the appellant does not address the court and does not submit anything against the decision of the court below. The memorandum of appeal does contain the grounds of objection to the decree appealed from, without any argument or narrative as laid down in sub-r. (2) of T. 1, O. XLI Such grounds cannot take the place of the points or determination as contemplated by r. 31. Not unoften certair grounds of objection raised in the memorandum of appeal are not argued or pressed at the hearing and in that case such grounds cannot be taken to be the points for determination and are rightly not discussed in the judgment at all. It is for the appellant to raise the points against the judgment appealed from. He has to submit reasons against its correctness. He cannot just raise objections in his memorandum of appeal and leave it to the appellate court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the appellate court itself to find out what the points for determination can be and then proceed to give a decision on those points It is in the discretion of the appellate court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It follows, therefore, that if the appellant submits nothing for its consideration, the appellate court can decide the appeal without any reference to any proceedings of the courts below and, in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judgment and decree under appeal were wrong.”

15. On the merits of question No. 3 Mr. Roy cited and relied on the earlier decision of this court in Duncan Brothers & Co. Ltd. v. CIT, [1978] 111 ITR 885. It was contended in that case on behalf of the revenue that a provision for taxation did not constitute a fund within the meaning of cl. (ii) of r. 2 of the Second Schedule to the Companies (Profits) Surtax Act, 1964, and, therefore, could not be taken into account for the purpose of the diminution or the reduction of capital under that rule. It was sought to be argued that a fund as contemplated under the said rule had to be a free fund available for any purpose and not earmarked for a particular purpose. Such contention was negatived in that case and it was held that a provision for taxation constituted a fund within the meaning of that rule.

16. Mr. Roy also brought to our notice a circular, being circular No. I. P. (XV-5) of 1968, dated 23rd January, 1968, which, inter alia, provides as follows:

“Treatment of the amount standing to the credit of ‘Reserve for unexpired risks’. —Attention is invited to the provisions of the Second Schedule to the Companies (Profits) Surtax Act, 1964, which lay down the rules for computing the capital employed by a company for the purposes of the said Act A question has been raised whether the amount standing to the credit of the ‘reserve for unexpired risks’ in the balance-sheet of a general insurance company should be regarded as a fund, surplus or reserve within the meaning of cl. (ii) of rule 2 of the Second Schedule.

The question has since been considered in consultation with the Controller of Insurance. The Board are advised that, while the ‘reserve for unexpired risks’ cannot be regarded as a ‘reserve’ or ‘surplus’, it would qualify for being considered as a ‘fund’ within the meaning of rule 2(ii) of the said Second Schedule. The term ‘fund’, it will be observed, has not been defined in the Companies (Profits) Surtax Act, 1964. As such, it is to be given its ordinary meaning as understood in common parlance Etymologically, ‘fund’ means a sum of money available for the payment or discharge of liabilities As the ‘reserve for unexpired risks’ clearly represents a sum of money available to the company for payment or discharge of unexpected claims that may arise in respect of policies which extend beyond the relevant accounting year, the amount standing to the credit of this account can be regarded as a fund. In view of this position, the amount standing to the credit of the ‘reserve for unexpired risks’ account in the case of general insurance companies is properly deductible from the cost of investments, and only the excess cost of such investments over this amount is to be deducted under rule 2 from the capital as computed under rule 1 of the said Second Schedule.”

17. Mr. Roy also cited Jowitt's Dictionary of English Law, 2nd Edn., Vol. I, page 840, where “fund” has been defined as follows:

“Fund, a sum of money available for the payment or discharge of liabilities. Thus the assets of a testator form a fund for the payment of his debts.”

18. Mr. Sengupta, for the revenue, however, invited us to reconsider the earlier decision of this court. He submitted that for the purpose of computation of capital under the Second Schedule to the said Act, the expressions referred to therein must not be construed or considered in their dictionary meaning or as understood in common parlance; such expressions, he submitted, had to be understood in the background of a company's accounts. The expression “fund” in cl. (ii) of r. 2, he submitted, referred to a special type of fund in the nature of a “reserve”, which for some reason or other might not have been included in the capital. In support of his contentions, he referred to the form of the balance-sheet of a company as prescribed in Sch. VI to the Companies Act, 1956. Under the column “Reserves and surplus” in, the said form there is a marginal note as follows:

“The word ‘fund’ in relation to any ‘Reserve’ should be used only where such reserve is specifically represented by earmarked investments.”

19. Mr. Sengupta also drew our attention to “Dictionary for Accountants”, 4th Edn., by Eric L. Kohler, pp. 204 to 208, which reads as follows:

“Fund. 1. An asset or group of assets within any organization, separated physically or in the accounts or both from other assets and limited to specific uses. Examples: a petty cash or working fund; a replacement and renewal fund; an accident fund; a contingent fund; a pension fund.

2. Cash, securities, or other assets placed in the hands of a trustee, principal or income or both being expended in accordance with the terms of a formal agreement. Examples: a trust fund created by a will; an endowment fund; a sinking fund.

3. (government accounting) A self-balancing group of accounts— asset, liability, revenue and expense—relating to specified sources and uses of capital and revenue.

4. pi. Current assets less current liabilities (on an accrual basis): working capital; a term used in flow statements.

5. pl. = cash.

v. t. 1. To convert currently maturing liabilities into a long-term loan.

2. To provide for the ultimate payment of a liability by the systematic accumulation of cash or other assets in a separate account or trust.

A special revenue fund is created for taxes and other revenues levied or set aside for specified purposes. For example, if a separate fund is authorised for schools, a special revenue fund is set up to, account for its disposition. The accounting principles, procedures, and final statements of a special revenue fund resemble those of the, general fund

Other Funds.

A balance-sheet combining a group of related funds should indicate the amount, of assets, liabilities, reseryes and surplus applicable to each fund within the group. The revenues and expenditures of each fund must likewise be kept independent, and the revenues of one fund should not be used to inept the expenditures, of another without legal authority or opinion behind the action.”

20. Mr. Sengupta also relied on certain observations in Spicer & Pegler's Book-Keeping and Accounts, 17_th Edn., pp. 336 and 337, as follows:

“Another technique used by accountants to interpret the accounts of a business is to compare the Balance Sheet at the beginning of an accounting period with the Balance Sheet at the end of the, period, and to express their findings in a statement which discloses the movements which have taken place during the period in respect of each asset and liability. Such a statement may be termed a ‘Movement of Funds Statement’, or a ‘Statement of Sources and Application of Funds’.

21. It should be stated at this point, that this topic should be approached with some caution and flexibility since considerable controversy exists amongst accountants, both as to the form which such statements, should take and the precise definition of certain terms

22. The statement commences with the opening cash position, i.e, cash and bank balances. The second part of the statement shows the ‘Cash Flow or the value of fresh funds generated by, and retained in, the business: this will consist of the net profit for the year plus any expenses charged before arriving at the net profit, such as depreciation or preliminary expenses, together with over-provision for taxation in the previous year (under-provisions should be deducted), etc., which have not resulted in a flow of cash out of the business; taxation on the profits for the year in question and dividends paid and proposed must then be deducted to disclose the funds which have been ploughed back, or retained in the business, as opposed to ‘external’ sources of finance, such as funds arising from the issue of shares or debentures.”

23. On the facts and records in the present reference, it appears to us that the controversy in the proceedings below up to the Tribunal related to the computation of the capital of the assessee under the Companies (Profits) Surtax Act, 1964. ‘It was specifically contended by the assessee before the ITO and the AAC that the amounts set apart by it for the purposes of the proposed dividend and the provision for taxation should be taken into account and deducted from the cost of its investments under cl. (ii) of r. 2 of the Second Schedule of the Act so that there is a lesser reduction in its capital. This contention has been duly recorded by the ITO and the AAC. Before the Tribunal a further point was raised, namely, that the amount set apart for the provision for taxation was, in any event, a reserve and should be included in the capital to start with. This contention has been negatived by the Tribunal. But the question which still remained before the Tribunal was what should be the correct computation of the capital of the assessee for the purposes of surtax. Respectfully following the observations of the Supreme Court in the case of Indian Molasses Co. Pvt. Ltd., [1970] 78 ITR 474, we hold that this aspect of the question, even if not gone into by the Tribunal, could be agitated by the assessee in this reference.

24. The Tribunal's order is silent on this point and it is not recorded that the assessee abandoned this aspect of the question.

25. On the merits it appears to us that question No. 3 is covered by the earlier decision of this court. The points canvassed by Mr. Sengupta in the present reference, in our opinion, do not affect the legal position to any appreciable extent. The observations from the Dictionary for Accountants relied on by Mr. Sengupta cannot be said to be conclusive on the question and certain parts of such observations appear to support the contentions of the assessee. The principles laid down in the text book by Spicer & Pegler do not deal with this particular question. The learned authors have noted specifically that the topic is controversial and even the accountants are not of uniform opinion on the issue. The view which has been expressed in the earlier decision of this court also appears to be in conformity with the view expressed by the Central Board of Revenue in construing the expression “fund”.

26. Mr. Sengupta has contended that what the Board really laid down in the circular was that only a fund, expected to be available beyond the year, should be taken into account, for the purpose of r. 2. The particular fund which was being considered by the Board in the circular was a fund designed to meet not an expected but an unexpected liability. Even if such submissions are accepted, it is clear from the said circular that the Board construed the expression “fund” as it is done in ordinary parlance and according to its dictionary meaning.

27. For the above reasons, we answer the questions as follows:

Question No. 1 is answered in the affirmative and in favour of the revenue.

Inasmuch as we have held that question No. 3 does arise from the order of the Tribunal in the instant case, we do not propose to answer question No. 2.

28. We reframe question No. 3 as follows;

“Whether the company is entitled to the deduction of provision for taxation from its cost of invesment in terms of clause (ii) of rule 2 of the Second Schedule of the Companies (Profits) Surtax Act, 1964?”

29. This question is answered in the affirmative and in favour of the assessee. There will be no order as to costs.

30. Mr. Sengupta has drawn our attention to a certain observation in the earlier judgment of this court in Duncan Brothers & Co. Ltd. v. CIT, [1978] 111 ITR 885 (Cal) which might lead to difficulties in actual computation. We make it clear that the Tribunal will have to take into account first the amount of capital as computed under r. 1 of the Second Schedule to the Act. Thereafter, the Tribunal will have to determine the cost of the assets, the income from which is required to be excluded from its total income in computing its chargeable profits in accordance with cl. (iii), cl. (vi) and cl. (viii) of r. 1 of the First Schedule, whichever may be applicable. Thereafter, the Tribunal will have to diminish from the amount of capital the excess of the cost of such investments over the amount of these funds.

C.K Banerji, J.:— I agree.