G.R. No. 11805. May 31, 1960
[WITH RESOLUTION OF AUGUST 31, 1960]
LABRADOR, J.:
declaring respondent Pio Barretto Sons, Inc. exempt from the payment to
the total amount of P79,933.41, representing (1) forest charges and
300% surcharges on alleged purchases of logs not accompanied by
auxiliary invoices for the years 1947 to 1949; (2) forest charges and
300% surcharges on undeclared purchases of logs in 1949 and 1951; (3)
50% surcharge for discharging without permit from 1948 to 1949; (4) and
deficiency sales tax and surcharge from 1947 to 1949. The exact amounts
are detailed in a letter of the Collector of Internal Revenue to Pio
Barretto Sons, Inc. dated December 10, 1954 (Exh. 2), as follows:
Regular forest charges on 409,513 bd. ft. or 965.83 cu. m. of 2nd group round logs @ P2.00 Total regular charges 450% surcharges for cutting w/o license, trans w/o permit and late payment Total regular charges and surcharges Regular forest charges on 349,831 bd. ft. or 825.07 cu. m. of undeclared purchases of timber @ P2.00 per cu. m. 150% surcharges for trans, w/o inv., disch. w/o permit and late payment Total regular charges and surcharges TOTAL CARRIED FORWARD TOTAL BROUGHT FORWARD Regular forest charges on 83,355 bd. ft. or 196.59 cu. m. of undeclared purchases of timber @ P1.25 per cu. m. 75% surcharges for transp. w/o inv., disch. w/o permit and late payment Total regular charges and surcharges 50% surcharge for discharging w/o permit 39,395 bd. ft. of 1st group timber based on the regular charges Total forest charges and surcharges 5% sales tax on total value of logs of P237,231.34 25% surcharge Total sales tax and surcharge GRAND TOTAL COLLECTIBLE
The above assessment was based on the report of Internal Revenue Agent
Celso P. Razal, who conducted an investigation of the log purchases of
the respondent during the periods indicated, the sawn lumber sold by it
during the same period of time, as disclosed from respondents’ own
books, papers and records.
(1) Agent Razal found that from January to June 14, 1947, June 15 to
December 31, 1947, January to December, 1948, and January to December,
1949, the respondent had acquired a total of 1,096,111 board feet of
first group logs and 409,513 board feet of second group logs. However,
the respondent was not able to produce the commercial or official
receipts showing positive payment of the forest charges thereon, nor
the auxiliary invoices of said logs. The respondent explained to the
agent that the logs in question were actually purchased by it as shown
by the vouchers signed by the sellers and payees; that it was a buyer
in good faith and liability should be assessed against the vendors who
sold the logs to it; that because of lack of forms compliance with the
forest regulations regarding the invoicing of said logs could not be
made at the time of the acquisition of the logs. The Collector of
Internal Revenue assessed the regular forest charges thereon at
P10,979.72 and the surcharges for cutting without license, transporting
without invoice, discharging without permit, plus late payment at
P49,408.74, making a total of regular charges and surcharges of
P60,388.46.
(2) In the year 1949, some 349,831 board feet or
825.07 cubic meters of logs were found to have been purchased but
undeclared, and the Collector assessed against the respondent P1,650.14
for regular forest charges and P2,475.21 as surcharges, or a total of
P4,125.35.
(3) In 1951, the petitioner assessed against the
respondent P245.74 for undeclared purchases of logs totalling 83,355
board feet or 196.59 cubic meters, and P184.32, as surcharges thereon,
or a total of P430.06.
(4) During the years 1948 and 1949,
it was found that respondent discharged without permit 39,395 board
feet of first group timber, upon which the sum of P162.58 was assessed.
(5) In the years 1947 to 1949, 5% sales tax on a total value of logs
amounting to P237,231.34 was computed at P11,861.57, with 25%
surcharges amounting to P2,965.39. So a total of P14,826.96 was
assessed against the respondent on this count.
Respondent
appealed to the Court of Tax Appeals alleging that it did not fall,
transport or discharge without license or permit any logs, or make
undeclared purchases of the same; that the computation of the sales tax
is inaccurate and that the Bureau of Internal Revenue has already
examined and verified the books of the respondent for sales tax
purposes, and issued a deficiency sales tax assessment, which has been
paid; that the Collector can no longer assess for the years earlier
than January 12, 1950 because there is no allegation of fraud against
it and its records were constantly subject to examination by agents of
the Bureau. The Court of Tax Appeals held a trial of the issues, and
thereafter rendered a decision, which is the subject of the present
appeal. In connection with the forest charges and surcharges from 1947
to 1949, the Collector of Internal Revenue alleges that the respondent
had loaned money or made cash advances to suppliers and that the latter
paid the respondent in the form of logs, by way of sale, and therefore
the suppliers were acting as agents of the respondent herein. The court
below did not sustain this claim of the Collector, holding that there
is no relationship of principal and agent under the circumstances
above-indicated. We agree to this conclusion; the giving of cash
advances for timber or logs to be supplied do not make the supplier
agents of the buyer.
As to the liability of the respondent
herein for the forest charges and surcharges for logs for which he has
been unable to present official receipts of payment of the forest
charges and the auxiliary invoices thereof, the court below held that a
person in the position of the respondent herein may not be penalized
upon presumption, as the evidence only proves that respondent herein
was a purchaser in good faith of the logs. Anent the argument of the
Collector of Internal Revenue that Section 13 of Regulation No. 85 of
the Department of Finance makes the respondent herein responsible for
the forest charges and surcharges, the court below held that the term
“possessor of forest products” in said Section 13 of Regulation No. 85
refers to the person who gathers or cuts the forest products like the
licensees, and not to a subsequent possessor for value. Going further
on same issue, the court below also held that the Internal Revenue Code
has seen fit to classify forest charges as internal revenue taxes, and
therefore the principle that the lien on the forest products may not be
enforced against an innocent purchaser, must be applied. It further
held that it was incumbent upon the Collector to show that the owners
of private woodlands from whom some of the logs were purchased had not
registered their private woodlands, otherwise such owners can not be
charged for illegal cutting.
On this appeal petitioner
relies mainly on the provisions of Sections 11 and 13 of the Revised
Internal Forestry Regulations No. 85 dated December 28, 1934, and duly
approved by the Secretary of Finance. Said Sections are as follows:
“Sec. 11. Payment of charges on products cut under ordinary license.—Before
transporting from the public forest or forest reserves or using within
the cutting area forest products cut or gathered under an ordinary
license issued by the Director of Forestry, the licensee shall list
such forest products on blank forms of auxiliary invoices (B.I.R. Form
No. 14.04 in the case of timber or B.I.R. Form No. 14.05 in the case of
firewood or other minor forest products) which may be secured from the
deputy provincial treasurer of the municipality, where the said forest
products have been cut or gathered. Said auxiliary invoices, when
completed, shall be sworn to before the deputy provincial treasurer
concerned by the licensee or his agent duly authorized in writing.
These auxiliary invoices shall, in the case of timber, be made in
quintuplicate and in the case of firewood and minor forest products, in
quadruplicate. After they are duly sworn to, the deputy provincial
treasurer shall compare the barrios or sitios shown thereon with those
described in the copy of the license furnished by the Bureau of
Forestry, and shall prepare an official invoice together with its stub
and coupons and collect from the licensee or his agent the amount of
charges due on the products so invoiced. He shall then affix to the
official invoice in the space provided for that purpose internal
revenue stamps in an amount equal to the charges collected, and cancel
them. He shall also enter the assessment and serial numbers of the
official invoice on each copy of the auxiliary invoice. The official
invoice shall then be detached and together with two copies of the
auxiliary invoice in the case of timber, or one copy in the case of
firewood or minor forest products, shall be delivered to the licensee,
to be sent along with the products until they arrive at their
destination. If the barrios or sitios shown on the auxiliary invoice
differ from those shown on the copy of the license, such discrepancy
shall be considered prima facie evidence that the products were
not cut in the licensed area and the additional charges of 100 per
centum shall be collected unless the licensee presents satisfactory
proof that the products were cut in the licensed area. The coupon and
two copies of the auxiliary invoice shall be forwarded to the Collector
of Internal Revenue with the report of stamps sold. The Collector of
Internal Revenue will transmit one copy of the auxiliary invoice to the
Director of Forestry. The remaining one copy of the auxiliary invoice
shall be sent by the deputy provincial treasurer to the nearest forest
station. Upon arrival of the products at the, point of destination, the
licensee or his agent shall present the official invoice and auxiliary
invoices to the deputy provincial treasurer of the municipality or to
the Collector of Internal Revenue in the City of Manila, and apply for
a discharge permit. The deputy provincial treasurer or the Collector of
Internal Revenue will then follow the procedure outlined in section 17 (a) hereof.If the licensee or his authorized agent prefers to pay the forest
charges and secure the official invoice in a municipality other than
that where the forest products have been cut or gathered, before the
removal of the products from the cutting area a written permission of
the Collector of Internal Revenue to that effect should be previously
secured.Persons required by the regulations to execute
and present Schedule I, paragraphs 1 to 4 auxiliary invoices (B.I.R.
Form No. 140.04) must prepare this form in a manner as to put together
all timber or lumber of the same form, the same species and the same
group.”“Sec. 13. Payment of charges on forest products taken without license.—The
possessor of forest products cut or gathered without license on which
charges are payable is required to present auxiliary invoices. The
procedure outlined in section 11 of these regulations shall then be
followed. Surcharges shall be collected for cutting without license,
for cutting in violation of the terms of the license, transporting
without invoice, or discharging without permit.”
We note that the above regulations specifically point out in detail the
procedure to be followed by licensees from the time of cutting timber,
during the transportation of the same to its destination, and the
discharge thereof at the said destination. In brief, the regulations
provide that upon cutting timber the licensee must submit to the
nearest Internal Revenue officer, or the deputy provincial treasurer of
the province where the timber is cut, an auxiliary invoice in
quintuplicate of the timber cut, containing the serial number of the
logs, their species, their lengths, radius, if round, thickness and
width if squared, and their volume in cubic meters. These auxiliary
invoices are then sworn to before the deputy provincial treasurer, who
shall prepare an official invoice together with its stub and coupons
and collect from the licensee or his agent the amount of charges due on
the product so invoiced. The official invoice or receipt of payment is
then detached and together with two copies of the auxiliary invoice it
delivered to the licensee, to be carried along with the logs to the
point of destination. Upon arrival at the point of destination, the
licensee or his agent shall present the official invoice and the
auxiliary invoice to the deputy provincial treasurer thereat and apply
for a discharge permit. Note that at this time the deputy provincial
treasurer is supposed to check if the timber described in the auxiliary
invoice tallies with the timber actually discharged. The deputy
provincial treasurer then grants a permit to discharge the timber and
returns the official invoice to the consignee, together with the
auxiliary invoice.
It will be noted, as reported by the
Internal Revenue Agent, and not denied by the respondent herein, that
none of these three official documents, the official invoice, the
auxiliary invoice and the discharge permit, were found in the
possession of the respondent herein to cover the timber (1,096,111
board feet first group and 409,513 board feet second group) on which
the assessment of P60,388.46 was made. An official of the respondent
company declared that the persons who delivered to it the timber
(Stated that the forest charges have been paid but none of the
documents were furnished.
The question we have to decide is
whether under the circumstances the respondent herein should be
responsible for the assessment made, including forest charges and
surcharges.
In the first place, we do not subscribe to the
proposition of the court below that because the collection of the
forest charges ha3 been entrusted to the Collector of Internal Revenue,
said forest charges are taxes to be governed in the same manner as
internal revenue taxes. As the court below had admitted, the Tax
Commission had expressly stated that forest charges are not taxes but
the price of forest products.
“Forest
charges, which are not properly taxes but rather the price paid for
exploiting: national resources, need to be revised to make them more in
harmony with present-day conditions in the industry and with public
policies.” (Report of the Tax Commission, p. 36, Vol. 1)“Forest
charges are to be distinguished from taxes. They are, strictly
speaking, the price which the Government charges for the privilege
granted to concessionaires to exploit the public domain, rather than a
tax imposed to support the general services of the government. Since
under the Constitution all timber lands in the public domain belong to
the State, sound public policy demands that they be conserved or wisely
exploited in order that the patrimony of the nation may not be
impaired. The increasing production of lumber in recent years means
both a more rapid depletion of our forest resources and increasing
expenditures by the Government for reforestation which now amount to
about half a million pesos a year.” (ID., p. 90, Vol. 1)
If the Filipino people are not to be cheated of the products of their
national patrimony, forest charges should rather be considered as lien
on the forest products, the term “charge” being synonymous with the
term ‘lien”. That such a lien has been created is to be inferred from
the above-quoted Section 13 of the Regulation, which makes the
possessor responsible for forest charges and surcharges on timber cut
from the public forests. The conclusion of the court below that the
term possessor in Section 13 of the Regulation refers only to a
licensee, is entirely at odds with the established practice of the
Bureau of Forestry and the interpretation placed thereon by both the
Bureau of Forestry and the Bureau of Internal Revenue. As We read both
Sections 11 and 13, We find that the interpretation given by the court
below to the term “possessor” does not jibe with the provisions of
Section 11, especially those which require three steps to be taken
before timber cut in public forests can ultimately reach the consignee.
The procedure outlined in detail in Section 11 of the Regulations
above-quoted for the proper documentation of timber and other forest
products after cutting and before removal from a public forest, during
transportation, and at the time of discharge, has been adopted to
protect such valuable patrimony as our forests are against waste and
spoliation both by regular licensees as well as by trespassers. The
provision of Section 13 making the possessor of timber or other forest
products, without the corresponding documents required in Section 11,
responsible for the forest charges and surcharges, is a necessary
concomitant of Section 11; without it (Section 13) the strict
documentation in Section 11 would be defeated, because possessors not
actually caught in the act of cutting, transporting or discharging the
timber, would be exempted, not only from the payment of the ordinary
forest charges, but also from the heavy penalties that the law imposes
for violations of its provisions and the regulations issued there
under. The rule that a possessor of timber without the proper
documentation above-mentioned is presumed to be a purchaser in good
faith—because one can not be presumed to be a law violator—is clearly
contrary to sense and reason. If a possessor of timber and other forest
products really purchased them from a licensee who has paid all the
charges, he should have the documents evidencing the legality of the
taking away thereof from the forest. Our laws on personal properties
like vehicles and large cattle require certificates or permits to
insure that said vehicles and cattle may not go into the hands of
thieves with impunity and may be recovered from the latter. Similarly,
the regulations require the strict documentation of timber and other
forest products that thieves and forest violators may not go unpunished
and our valuable patrimony protected and the collection of the charges
due the State therefrom assured.
According to the court
below, it is the Government that must show that a person in possession
of timber without the official documents must prove that the timber so
possessed has been illegally cut. The rule thus adopted by the court
below flies in the teeth of the regulations above-quoted.
A
person who buys or purchases timber without the official documents
mentioned above is not a buyer in good faith; he should know that under
the Regulations in force since 1934 timber cut in public forests should
be accompanied by the documents required. In no case is the rule of caveat emptor
be more applicable than in the present, where products from the
patrimony of the people have apparently been taken away illegally. The
purchaser thereof can not be said to be a purchaser in good faith
unless he can show the official documents, the receipts for payment of
the charges and the discharge permit covering the timber, because he
ought to know the law and regulations regarding the payment of forest
charges and the invoicing, transporting and discharging of forest
products.
Lastly, the adoption of the decision of the court
below would certainly create unlimited opportunities for licensees and
buyers to connive with each other and cheat the State of its lawful
revenues. Whether from a practical point of view or from that of public
policy, forest charges should be considered as a lien on the timber,
and licensees or possessors of forest products, whoever they may be,
should be made to respond for the forest charges and surcharges fixed
in the law, and a lien should be pronounced on said timber or other
forest products not only when they are yet in the condition of unsawn
logs, but also after the same had been sawed into lumber and disposed
off. It is only by such practical construction of the regulations and
by the enforcement of such a public policy that the public patrimony
may be saved from spoliation and ruin.
Summing up what We
have said before, We hold that Section 11 of the said Regulations
refers to all persons who are in possession of timber without the
necessary official and auxiliary invoices and discharge permits. We
also hold that the charges are liens on the products and collectible
upon whomsoever is in possession, unless he can show that he has the
required auxiliary and official invoice and discharge permit. In
accordance with these conclusions, We hold that respondent is liable
for the sum of P60,388.46 as forest charges, surcharges on the
1,096,111 board feet of first group logs and 409,513 board feet of
second group logs for which it failed to show the corresponding
official invoices, auxiliary invoices and discharge permits.
The next issue raised in the appeal is the liability of the respondent
herein for the sums of P4,125.35 and P430.06 as forest charges and
surcharges, respectively, on logs allegedly purchased in 1949 and 1951
but not declared in the books of the respondent herein. There
should not be any question as to the respondent’s liability for these
charges and surcharges. Respondent herein had obtained the logs but did
not enter the same in its books. Under the rule We have laid down
above, the respondent as possessor is responsible for the forest
charges and surcharges, otherwise by mere omission, people to whom
timber or forest products have been delivered would easily hide such
products and cheat the Government of the lawful charges thereon.
We also hold that the respondent herein should also be responsible for
the payment of P162.58 as 50% surcharge for discharging without permit
in 1948 and 1949. Were we to allow persons to discharge without permit,
evasion of the forest charges would easily be achieved. It is by
checking the timber with the auxiliary invoice, or guias that
the Government can find out whether logs or timber had been illegally
cut, or transported and discharged without license and permit. The
collection of these charges is a necessary consequence and part of the
system to insure collection of all forestry charges and especially to
check overshipments.
The last question to be decided is that
of the liability of respondent for the sales tax of 5% on the logs it
had purchased from various loggers which were not covered by the
corresponding official and auxiliary invoices and discharge permits
required by Regulation No. 85. The internal revenue agent had found
that respondent had deducted the supposed amount of said 5% sales tax
from the gross sales of sawn lumber, pursuant to then existing law that
owners of sawmills as producers of manufactured goods may deduct from
the gross value of their sales of sawn lumber the cost of the raw
materials used in the manufacture or sawing, including the sales tax
thereon. As it does not appear that the loggers from whom respondent
purchased the logs had paid said 5% sales tax on the logs delivered to
respondent, the logical inference from this fact is that the respondent
must have discounted said sales tax from the price of the logs given to
the supplier of the logs, taking upon itself the responsibility of
paying said 5% tax, or assuming liability therefor to the Government.
There are two other circumstances that support such an inference and
such a liability. The loggers as suppliers of logs were financed in
their logging operations by respondent, which advanced funds therefor
and must have, in their accounting of such funds, already retained the
sales tax on the logs supplied for payment to the Government. In the
second place, as We have concluded from a consideration of the first
question, which refers to the liability of respondent for the forest
charges due on the logs not covered by official and auxiliary invoices,
respondent can not have the consideration of buyer and possessor in
good faith of the said logs, for which reason it may not claim
exemption from liability for the .sales tax due on the logs it had
received without invoice and which it subsequently manufactured into
sawn lumber. We are forced to conclude, therefore, that respondent
should be made to pay the sales tax of 5% above described, including
the tax deficiency, for a total of P14,826.96.
The last item
subject of the appeal is the amounts of P1,000.00 and P200.00 demanded
by the Collector of Internal Revenue as compromise penalties, which
demand was denied by the Court of Tax Appeals for the reason that the
respondent did not agree thereto and, therefore, petitioner has no
right to impose the same. While it is true that violations of the
National Revenue Code and the Forestry Regulations have been committed,
the remedy of the petitioner for these violations is to sue the
respondent therefor. This has been the ruling of this Court in G. R.
Nos. L-11274 and L-11280, Collector of Internal Revenue vs. University of Sto. Tomas, et al., and University of Sto. Tomas vs.
Collector of Internal Revenue, prom. November 28, 1958, and reiterated
in G. R. Nos. L-12250 and 12259, Collector of Internal Revenue vs. Bautista, et al., and Bautista, et al., vs.
Collector of Internal Revenue prom. May 27, 1959. The decision of the
Court of Tax Appeals refusing to impose payment of the said amounts as
compromise penalties against the respondent is, therefore, affirmed.
For the foregoing considerations, the respondent company is hereby ordered to pay the Government the following amounts: (a)
P60,388.46, as total regular charges and surcharges on 1,096,111 board
feet of first group timber for the years 1947 to 1949; (b) P4,125.35, as total regular charges and surcharges on 349,831 board feet of undeclared purchases of timber in the year 1949; (c) P430.06 as total regular charges and surcharges on 83,355 board feet of undeclared purchases of timber in the year 1951; (d) P162.58 as 50% surcharge for discharging without permit 39,395 board feet of first group timber in the years 1948 and 1949; (e)
P14,826.96 as total sales tax and surcharge for the years 1947 to 1949;
or a grand total of P79,933.41. However, the respondent company is
hereby declared exempt from paying the compromise penalties of
P2,000.00 and P200.00. The judgment appealed from is therefore modified
in the manner indicated above. With costs against respondent.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Concepcion, Barrera, and Gutierrez David, JJ., concur.
R E S O L U T I O N
August 31, 1960.
LABRADOR, J.:
Respondent Pio Barretto Sons, Inc., asks for leave to file a second
motion for reconsideration, alleging that this Court should refer this
case to the court below in order for it to make a finding of facts to
justify the assessment made by the petitioner Collector of Internal
Revenue, and that this Court should make an express ruling on the
defense of prescription presented by respondent in the court below.
Because these matters have not been expressly passed upon in our
decision and because of the importance of the questions of law raised,
we have chosen to rule herein on the questions as above indicated. The
forest charges assessed and now in question are for timber cut in the
years from 1947 to 1949.
On the first question, we have
taken pains to examine the records of the case below, as well as all
the papers submitted by the petitions at the trial, and we find no
claim or contention of any kind made therein by the respondent
contesting the correctness of the figures upon which the assessment was
made. In the petition before the Court of Tax Appeals, petitioner
therein, in paragraph 7 of its petition, only denies the accuracy of
the computation of the sales tax upon which deficiency is being
collected, but not on the figures use for making the computation. As to
the forest charges and surcharges all that the respondent states in its
petition is that he denies having felled, transported or discharged
logs or having undeclared purchases on logs, or having violated Section
37 of the Tax Code. The figures upon which the petitioner Collector of
Internal Revenue has based his assessment were taken from books and
papers of the respondent. No claim is ever made that said figures, of
logs sold or lumber sold, are incorrect. As a matter of fact, the Court
of Tax Appeals in its decision assumes that the figures on which the
assessment is made, are correct and the respondent never questioned the
same, and all it did question is the validity or legality of the
assessment made. The correctness of the figures taken from the books
and papers of the respondent not having been impugned by respondent in
the Court of Tax Appeals, as said figures are taken from its own books
and papers, the correctness of the accounts on which the assessment was
made was never in issue in the court below. Hence this Court can not
order the return of the records to the court below for the
determination of the figures basis of the assessment.
As to
the claim that the assessment made by the Collector of Internal Revenue
has prescribed, because 5 years have already expired, we find this
claim to be without merit. The provision cited by the respondent to
support its contention is as follows:
“Sec. 331. Period of limitation upon assessment and collection.—Except
as provided in the succeeding section, internal revenue taxes shall be
assessed within five years after the return was filed, and no
proceeding in court without assessment for the collection of such taxes
shall be begun after the expiration of such period. For the purposes of
this section a return filed before the last day prescribed by law for
the filing thereof shall be considered as filed on such last day:
Provided, That this limitation shall not apply to cases already
investigated prior to the approval of this Code.” (National Internal
Revenue Code, 213).
It can be seen from the
above-quoted provision, that the prescriptive period of 5 years begins
from the filing of the return. In the case at bar the assessment by the
Collector of Internal Revenue is not based on a return filed by
respondent. The above provision does not, therefore, apply. Moreover,
as already stated in the decision, forest charges and surcharges are
payments for timber taken from public forests, and they are considered
as internal revenue taxes only in the sense that they are to be
collected by the Collector of Internal Revenue and the regulations for
their collections are contained in the National Internal Revenue Code.
Forest products are obtained under licenses issued by the Government
and forest charges are in a sense contractual in origin. No
prescriptive period having been prescribed by law for this Case, Sec.
43 of the Code of Civil Procedure should apply. The books of sales and
the invoices of timber bought were examined in 1953, and Internal
Revenue agents found that many purchases of logs were without invoices
and sales underdeclared. The action to collect for the
under-declaration and for forest charges on logs purchased without
invoice should begin from said year, 1953, because it was in that year
the deficiencies amounting to fraud were discovered. The period for the
prescription should, therefore, be reckoned from 1953. The assessment,
therefore, was made within the period prescribed by the statue.
Wherefore, the motion for reconsideration filed in this case is hereby denied.
Paras, C. J., Bengzon, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.