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1988 DIGILAW 411 (KAR)

KRISHNA VILAS TOURIST HOTEL v. STATE OF KARNATAKA

1988-09-02

S.R.RAJASEKHARA MURTHY

body1988
S. R. RAJASEKHARA MURTHY, J. ( 1 ) THE petitioners in these writ petitions are hoteliers running restaurants with a lodge attached. The assessments for the years 1976-77 and 1978-79 completed under section 12 (3) of the karnataka Sales Tax Act, 1957 ("the Act" for short), are challenged in these writ petitions. The writ petitions are entertained in view of the additional grounds urged in these petitions, raising the question of validity of section 2 (t) of the Act, as amended by Act 23 of 1983, being ultra vires of section 4 of the Constitution (Forty-sixth Amendment) Act, 1982. ( 2 ) THE challenge is also to the validity of explanation (3a) inserted by Karnataka Act 23 of 1983 to the definition of "sale" in the Act which was inserted with retrospective effect from 1st october, 1957. ( 3 ) EXPLANATION (3a), reads as follows : "every transaction of supply by way of or as a part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating) where such supply or service is for cash, deferred payment or other valuable consideration, shall be deemed to be a sale of those goods by the person making the supply and purchase of these goods by the person to whom such supply is made. " ( 4 ) THIS explanation was inserted to take retrospective effect from 1st October, 1957, and to give effect to section 4 of the Constitution (Forty-sixth Amendment) Act. ( 5 ) IT is relevant to briefly mention the background for this amendment which is to be found in the statement of Objects and Reasons appended to the Bill which was introduced in the Parliament. Paras 8 and 13 which are relevant are reproduced below : (See : pages 62 and 63 (Statutes) in [1983] 52 STC ). "8. Besides the abovementioned matters, a new problem has arisen as a result of the decision of the Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 stc386 (SC ). "8. Besides the abovementioned matters, a new problem has arisen as a result of the decision of the Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 stc386 (SC ). States have been proceeding on the basis that the Associated Hotels of India case AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 stc474 (SC ) was applicable only to supply of food or drink by a hotelier to a person lodged in the hotel and that tax was leviable on the sale of food-stuffs by a restaurant. But overruling the decision of the Delhi High Court, the Supreme Court has held in the above case that service of meals whether in a hotel or restaurant does not constitute a sale of food for the purpose of levy of sales tax but must be regarded as the rendering of a service in the satisfaction of a human need or ministering to the bodily want of human beings. It would not make any difference whether the visitor to the restaurant is charged for the meal as a whole or according to each dish separately. 13. The proposed amendments would help in the augmentation of the State revenues to a considerable extent. Clause 6 of the Bill seeks to validate laws levying tax on the supply of food or drink for consideration and also the collection or recoveries made by way of tax under any such Saw. However, no sales tax will be payable on food or drink supplied by a hotelier to a person lodged in the hotel during the period from the date of the judgment in the Associated hotels of India case AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ] 2 scr937 , [1972 ]29 STC474 (SC ) and the commencement of the present Amendment Act if the conditions mentioned in sub-clause (2) of clause 6 of the Bill are satisfied. In the case of food or drink supplied by restaurants this relief will be available only in respect of the period after the date of judgment in the Northern India Caterers (India) Limited case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ) and the commencement of the present Amendment Act. In the case of food or drink supplied by restaurants this relief will be available only in respect of the period after the date of judgment in the Northern India Caterers (India) Limited case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ) and the commencement of the present Amendment Act. " ( 6 ) IT was also proposed in the said Bill to suitably amend article 366 of the Constitution, enlarging the definition of "sale" for purposes of entry 54 of List II to Seventh Schedule, which empowers the States to levy tax on the sale or purchase of goods. ( 7 ) RELYING on the amendments made to the Constitution followed by the consequential amendments to the Karnataka Sales Tax Act, the petitioners have challenged the assessments on the ground that there was no appropriate law in the State Act to bring to tax, the turnovers in question for the two periods referred to earlier. ( 8 ) IN support of this argument, Sri B. A. Kalleshappa, learned counsel for the petitioners, has placed reliance on section 6 of the Forty-sixth Amendment Act, and has, in that context, drawn my attention to explanation (3a) to section 2 (t) of the Act, which was inserted by Act 23 of 1983 retrospectively. The contention of the learned counsel is that there is no machinery provision in the Karnataka Sales Tax Act to give effect to the amendment of definition of "sale" brought about by the said Amendment Act so far as the restaurants are concerned. The prayer of the petitioners in these cases is, to quash the assessment orders as having been made without authority of law and to refund the tax paid. ( 9 ) OBJECTIONS to the show cause notice were filed before the assessing authority, that no tax can be levied on the sale of food and drink in the restaurant section of their hotel, relying on the decision of the Supreme Court in the First Northern India Caterers case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ). ( 10 ) THE assessing authority has exempted the turnover only for the period 7th September, 1978 to 2nd August, 1983, on the ground that the turnover for the said period was entitled to the exemption in the light of section 6 (2) of the Forty-sixth Amendment Act. ( 11 ) THE question that arises for decision in these writ petitions is, whether the assessments, taxing the turnovers relating to the sale of food and drink by the petitioners-restaurant owners for the periods prior to 7th September, 1978, are valid in law ? ( 12 ) AS already stated, the Forty-sixth Amendment to the Constitution was brought about in view of the decision of the Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor of delhi AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ) and the Associated Hotels of India case AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 STC474 (SC ). ( 13 ) IN order to appreciate the contentions of the petitioners, it is necessary to examine what was the subject-matter of challenge before the Supreme Court in Associated Hotels case AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 stc474 (SC ). ( 14 ) THE question that arose in that appeal was, whether the supply of food to the residents of a hotel, constituted "sale" for the purpose of levy of sales tax, and whether it was legally permissible for the Revenue to split up the transaction into two parts, namely, one of service and the other of sale of food-stuffs in order to tax the sale of food. The Supreme Court held, that the entire transaction between a hotelier and a visitor to his hotel as a guest, was essentially one of service, and that therefore the Revenue was not entitled to split up the transaction and bring to tax, the supply of food and drinks as one amounting to sale. The Supreme Court held, that the entire transaction between a hotelier and a visitor to his hotel as a guest, was essentially one of service, and that therefore the Revenue was not entitled to split up the transaction and bring to tax, the supply of food and drinks as one amounting to sale. ( 15 ) IN the Northern India Caterers case reported in AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ), the question that came up for consideration was, whether the service of meals to visitors in the restaurant or served to non-residents in a hotel, was taxable as a sale under the provisions of the Bengal Finance (Sales tax) Act, 1941, as extended to the Territory of Delhi ? ( 16 ) THE Supreme Court held, applying the reasons stated by it in the Associated Hotels case AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 stc474 (SC ), that the service of meals to casual visitors in the restaurant section of the assessee, could not be regarded as constituting a sale of food. The relevant portion of the judgment is in the following words (at page 391) : "it has already been noticed that in regard to hotels this Court has, in Associated Hotels of India limited AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 STC474 (SC ) adopted the concept of the English law that there is no sale when food and drink are supplied to guests residing in the hotel. The court pointed out that the supply of meals was essentially in the nature of a service provided to them and could not be identified as a transaction of sale. The court declined to accept the proposition that the revenue was entitled to split up the transaction into two parts, one of service and the other of sale of food-stuffs. If that be true in respect of hotels, a similar approach seems to be called for on principle in the case of restaurants. No reason has been shown to us for preferring any other. The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need. No reason has been shown to us for preferring any other. The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need. What has been said in Electa B. Merrill LRA 1915-B 481 appears to be as much applicable to restaurants in India as it does elsewhere. It has not been proved that any different view should be taken, either at common law, in usage or under statute. It was urged for the respondent that in Associated Hotels of India Ltd. AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 STC474 (SC ) this Court drew a distinction between the case of meals supplied to a resident in a hotel and those served to a customer in a restaurant. We are unable to find any proposition of law laid down by the court there which could lead to that inference. We may point out that in the view which appeals to us we find ourselves unable to agree with the observations to the contrary made by the Punjab High court in Associated Hotels of India Ltd. v. Excise and Taxation Officer AIR1966 Pandh 449 , [1966 ]17 STC555 (Pandh ) and by the Delhi High Court in Municipal corporation of Delhi v. Laxmi Narain Tandon AIR1970 Delhi 244 , 1970 Crilj1605 , 6 (1970 )DLT450 (FB ). In the result, we hold that the service of meals to visitors in the restaurant of the appellant is not taxable under the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of delhi, and this is so whether a charge is imposed for the meal as a whole or according to the dishes separately ordered. " ( 17 ) THIS question came up for reconsideration before the Supreme Court in the very same northern India Caterers case AIR1980 SC 674 , (1980 )2 SCC167 , [1980 ]2 SCR650 , [1980 ] 45 STC212 (SC ), 1980 (12 )UJ494 (SC ) on review petitions filed by the respondent, the Lt. Governor of Delhi and other States, who intervened, seeking review of the judgment rendered in the Northern India Caterers case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ). Governor of Delhi and other States, who intervened, seeking review of the judgment rendered in the Northern India Caterers case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ). The reason for moving the supreme Court, as observed by their Lordships was, the respondents as well as other States were apprehensive that as a result of the observations made by the Supreme Court in the course of the judgment in the First Northern India Caterers case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ] 42 STC386 (SC ), the States would be deprived of the legitimate tax due to them levied and collected from the restaurant owners holding their transactions as sale of food and drinks under entry 54, List II of Schedule VII under the respective State laws. ( 18 ) AFTER considering the arguments of the applicants in the review petitions, the Supreme Court, in the judgment reported in AIR1980 SC 674 , (1980 )2 SCC167 , [1980 ]2 SCR650 , [1980 ]45 STC212 (SC ), 1980 (12 )UJ494 (SC ) [northern India Caterers (India) ltd. v. Lt. Governor of Delhi] while explaining their earlier judgment, held as follows : "indeed, we have no hesitation in saying that where food is supplied in an eating-house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax. " ( 19 ) SRI Kalleshappa has argued, consequent on the amendment to the Constitution several States brought about amendments to their respective sales tax laws to ratify or validate the assessments of turnovers of sale of food by restaurants and eating houses for the period on or after 4th january, 1972 and prior to 7th September, 1978. Fourth January is the date on which the supreme Court delivered its judgment in the First Northern India Caterers case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 stc386 (SC ). Fourth January is the date on which the supreme Court delivered its judgment in the First Northern India Caterers case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 stc386 (SC ). ( 20 ) BEFORE adverting to the decisions of other High Courts relied upon by Sri Kalleshappa, it is necessary to examine the relevant provisions of the Amendment Act and the object for which the said amendment was brought about and what is the scope and ambit of the said amendment ? ( 21 ) IT is the contention of the learned Government Pleader that the amendment was necessitated firstly, on account of the observations made by the Supreme Court in Associated Hotels of India case AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 STC474 (SC ) so far as the hoteliers are concerned and secondly, the observations as made by the Supreme Court in the First Northern India Caterers case AIR1978 sc 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ) with reference to restaurants and eating houses. ( 22 ) IT is, therefore, pointed out by the learned Government Pleader that section 6 of the constitution (Forty-sixth Amendment) Act has reference to and is meant to be applied only to hotels where a composite charge was made for supply of food and other amenities and not to restaurants. Sri Dattu demonstrates that on a careful reading of section 6 (2) of the Amendment act, which provides for validation and exemption, clause (a) of sub-section (2) specifically refers to the period between 7th September, 1978 and 2nd February, 1983, and exempts levy of any tax on the sale of food or drink in a restaurant or in a eating house provided that the dealer proves that he had not collected tax on such supply during the said period. ( 23 ) REFERRING to clause (b) of sub-section (2), it is pointed out that the said provision is meant to apply only to hotels and provides for similar exemption from the levy on the supply of food and drink in a hotel between 4th January, 1972 and 2nd February, 1983, subject to proving by the dealer that he had not collected the tax. ( 24 ) IT is, therefore, argued for the State that any levy and collection of tax from restaurants and eating houses on supply of food and drink prior to 7th September, 1978, does not suffer from any illegality, viz. , that there was no law to levy tax on the sale of food and drinks during the said period. The clear bifurcation made in sub-section (2) according to the stand taken by the State indicates that prior to 7th September, 1978, there was no inhibition in the State law to levy tax on such sales and the sale of food and drinks was subjected to levy under the general provisions of the Karnataka Sales Tax Act. ( 25 ) SECTION 6 provides for validation and exemption and the insertion of section 6 was necessitated by the observations made by the Supreme Court in the case of Associated Hotels AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 stc474 (SC ) and in the First Northern India Caterers case [1978] 42 STC 386. ( 26 ) PARAGRAPHS 8 and 13 of the Statement of Objects and Reasons placed before the Parliament along with the Constitution (Forty-sixth Amendment) Act, reproduced earlier in this order makes it clear that the said provision was made to validate the levy and collection of tax on the sale of food in hotels and restaurants between the date of pronouncement of judgment in Associated hotels case AIR1972 SC 1131 , (1972 )1 SCC472 , [1972 ]2 SCR937 , [1972 ]29 STC474 (SC ) and the date of the amendment to the Constitution and to provide for exemptions in the circumstances referred to therein. ( 27 ) THEREFORE, the argument of Sri Kalleshappa that there was no law to bring to tax, the transaction of sale of food and drink prior to 7th September, 1978 and that the assessments are non est in law, cannot be accepted. The Supreme Court only clarified in the Second Northern india Caterers case AIR1980 SC 674 , (1980 )2 SCC167 , [1980 ]2 scr650 , [1980 ]45 STC212 (SC ), 1980 (12 )UJ494 (SC ) while disposing of the review petitions, that where food is supplied in an eating-house or restaurant and if the transaction is dominantly one of sale of food, it undoubtedly attracted levy of sales tax. ( 28 ) IT is also seen from the assessment orders that the turnover of sale as returned by the petitioners for the relevant periods which are all prior to 7th September, 1978, was brought to tax under the charging provision of the Act and no other special law was necessary. It is also not the case of the petitioners that the dominant object was not the sale of food but was merely incidental to the rendering of service to the customers. The petitioners have filed returns in form 4 disclosing the turnover in sale of food and drink and on that basis, paid the tax also. Now, it is not open to them to contend in these writ petitions that the transactions of such sale of food did not attract the tax. What is more, they have not produced any material to show that they did not collect the tax on the sale of food. ( 29 ) THE assessments were completed on best of judgment since the assessees did not produce the sale bills for the sales effected by them. Therefore, the contention that the dealer did not collect the tax in view of the decision in the First Northern India Caterers case AIR1978 SC 1591 , (1978 )4 SCC36 , [1979 ]1 SCR557 , [1978 ]42 STC386 (SC ) has to be rejected as an afterthought. The burden is cast on the assessees to prove this fact by section 6 of the Constitution (Forty-sixth Amendment) Act, and the assessees have failed to produce proof to substantiate this claim before the assessing authority. ( 30 ) NOW, let me advert to the decisions relied upon by Sri Kalleshappa in support of his contentions : (1) Durga Bhavan v. Deputy Commercial Tax Officer [1981 ]47 stc104 (AP ). In the above case the High Court set aside all the assessments and directed the assessing authorities to re-do the assessments in the light of the enunciation of the law declared by the supreme Court in the Second Northern India Caterers case AIR1980 SC 674 , (1980 )2 SCC167 , [1980 ]2 SCR650 , [1980 ]45 STC212 (SC ), 1980 (12 )UJ494 (SC ). The High Court allowed the writ petitions relying upon the observations of the Supreme Court in paragraph 12 of the decision and was also in reply to the contentions of Sri Nariman, on behalf of the petitioners, that the Supreme Court decision in the review petition cannot be understood, in any way, going back upon the previous decision in which it was clearly held that the supply of food by restaurants to customers was not a sale. All the assessments done in cases of restaurants were set aside in the light of the Supreme Court decision observing that the burden was on the dealer to prove that it was not a sale but service. These assessments, obviously, related to the period prior to 1983 when the definition of "sale" was amended by the Constitution (Forty-sixth Amendment) Act. (2) Hotel Dwaraka v. Union of India [1985 ]58 STC241 (AP ). In the above case, again it was contended by the hoteliers and owners of restaurants that the constitution (Forty-sixth Amendment) Act did not authorise the State Government to levy and collect the sales tax in the absence of an amendment to the Andhra Pradesh General Sales Tax act, 1957. ( 31 ) AFTER the decision was rendered in Durga Bhavan's case [1981 ]47 stc104 (AP ) the assessments were completed by the sales tax authorities in accordance with the observations in that case. The assessments related to the period 1983-84 and the assessees were also given notices to pay the tax with effect from 1978. The contention of the petitioners was that there was no corresponding amendment to the definition of "sale" in the A. P. General sales Tax Act, and, that, therefore, no tax could be levied only on the strength of the constitution (Forty-sixth Amendment) Act. ( 32 ) THE stand of the Advocate-General on behalf of the Government was that there was no necessity to amend the definition of "sale" in the State Act, as the definition of "sale" or "purchase" in article 366 (29a), automatically applied to the definition in the State Act also. ( 32 ) THE stand of the Advocate-General on behalf of the Government was that there was no necessity to amend the definition of "sale" in the State Act, as the definition of "sale" or "purchase" in article 366 (29a), automatically applied to the definition in the State Act also. ( 33 ) THIS contention was rejected by the High Court and their Lordships formulated the question for consideration, thus : "therefore, the question is whether section 6 (1) covers both the past and future transactions of sale or section 6 (1) only validates past transactions of sale ?" ( 34 ) THEIR Lordships, after hearing elaborate arguments of Sri Nariman, on behalf of the petitioners, answered the above question in favour of the dealer and held as follows : "therefore, we reject the contention that no further amendment of the Sales Tax Act is necessary to levy and collect tax on sale of food-stuffs and beverages from the date of the amendment Act. " ( 35 ) THE conclusion of the High Court was that the Constitution (Forty-sixth Amendment) Act does not authorise the imposition and collection of tax on the supply of food-stuffs from 2nd february, 1983, on which date the Amendment Act came into force, but confers legislative competence on the State Legislature so to do and merely validates the collection and recovery of tax by removing the invalidity in the existing law subject to the exemption granted under sub-section (2) of section 6. (3) Amba Bhavani v. Government of Andhra Pradesh [1986 ]63 STC40 (AP ). ( 36 ) WRIT Petitions were filed by hoteliers, owners of restaurants and eating-houses challenging section 6 of the Constitution (Forty-sixth Amendment) Act, and sections 6 and 38 of the Andhra pradesh General Sales Tax Act. ( 37 ) AFTER the decision in Hotel Dwaraka [1985 ]58 STC241 (AP ), by the Andhra Pradesh High Court, the A. P. General Sales Tax Act was amended and the definition clauses in section 2, such as, "dealer", "sale", "turnover", etc. , were amended to bring it in conformity with the Forty-sixth Amendment. ( 37 ) AFTER the decision in Hotel Dwaraka [1985 ]58 STC241 (AP ), by the Andhra Pradesh High Court, the A. P. General Sales Tax Act was amended and the definition clauses in section 2, such as, "dealer", "sale", "turnover", etc. , were amended to bring it in conformity with the Forty-sixth Amendment. ( 38 ) THE contention advanced by Sri Nariman on behalf of the petitioners was, that there was no law in force prior to 2nd February, 1983, levying tax on the sale of food in restaurants and eating-houses, and in the absence of any such law, section 6 of the Constitution (Forty-sixth amendment) Act, was not applicable. ( 39 ) IT was pointed out by the High Court while dismissing the writ petitions, that the First schedule to the Andhra Pradesh General Sales Tax Act contained the relevant provisions to tax on sale of articles such as cooked or baked food under which the tax on the sale of food and drinks was being levied until the decision was rendered by the High Court on 19th September, 1980 in Durga Bhavan's case [1981] 47 STC 104. ( 40 ) THE High Court also clarified that there was no law for the levy of tax on the transactions by way of supply or service of food or drinks in hotels and restaurants prior to the Constitution (Forty-sixth Amendment) Act. But, the High Court upheld the levy on service of food or drinks, with retrospective effect from 2nd February, 1983, by virtue of the amendment to the A. P. General Sales Tax Act. (4) Ashoka Hotel and Restaurant v. Additional Superintendent, Commercial Taxes [1988] 69 stc 371 (Pat ). ( 41 ) THE assessments for the years 1977-78, 1978-79 were challenged before the High Court. Corresponding amendments were effected in the Bihar Finance Act, 1981, to bring it in conformity with the Constitution (Forty-sixth Amendment) Act, which empowers the State legislatures to tax the transactions of sale of food-stuffs by restaurants and hotels. ( 42 ) THE assessments were set aside by the High Court and the department was directed to re-do the assessments in the light of the review order rendered by the Supreme Court in Northern India caterers case reported in AIR1980 SC 674 , (1980 )2 SCC167 , [1980 ]2 scr650 , [1980 ]45 STC212 (SC ), 1980 (12 )UJ494 (SC ). ( 43 ) IT may be noted that these decisions have no relevance to the present case. The assessments in those cases related to the period from 1978 to 2nd February, 1983, the date of amendment to the Constitution. In the cases on hand, we are concerned with the assessments prior to 1978. These are all cases of sale of food and drinks in a restaurant and the contention that there was no law in force to levy tax on sale of food or drink, before the Constitution (Forty-sixth amendment) Act, has to be rejected as without substance. ( 44 ) FOR the reasons stated above, no ground is made out to interfere with the assessments made and the writ petitions are accordingly dismissed. ( 45 ) WRIT petitions dismissed.