D.C.I.T CC - VII,kolkata, Kolkata V. Shree Prakash Bagla, Kolkata

ITA 1201/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1876 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: S JHAJHARIA
• Keywords: Unexplained investment; Document seized; Peak credit; Validity of assessment; Tax effect; Documents seized; Reassessment proceedings
• Section: 143(3); 142(1); 133A; 153A; 132

Judgement Text

ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE HONBLE SHRI A.T.VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA. NO.1201/KOL/2013 ASSESSMENT YEAR : 2007-08 D.C.I.T., CENTRAL CIRCLE- VII,AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, KOLKATA- 700107. V/S . SHREE PRAKASH BAGLA, CD-315, SECOR-1, SALT LAKE CITY, KOLKATA-700064. PAN:ADUPB6558R /APPELLANT .. /RESPONDENT C.O.NO.92/KOL/2013 (A/O I.T.A. NO.1201/KOL/2013) ASSESSMENT YEAR : 2007-08 SHREE PRAKASH BAGLA, CD-315, SECOR-1, SALT LAKE CITY, KOLKATA- 700064. PAN:ADUPB6558R V/S . D.C.I.T., CENTRAL CIRCLE- VII,AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, KOLKATA-700107. /APPELLANT .. /RESPONDENT ITA. NO.1202/KOL/2013 ASSESSMENT YEAR : 2008-09 D.C.I.T., CENTRAL CIRCLE- VII,AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, KOLKATA-107. V/S . SHREE PRAKASH BAGLA, CD-315, SECOR-1, SALT LAKE CITY, KOLKATA-700064. /APPELLANT .. /RESPONDENT C.O.NO.93/KOL/2013 (A/O I.T.A. NO.1202/KOL/2013) ASSESSMENT YEAR : 2007-08 SHREE PRAKASH BAGLA, CD-315, SECOR-1, SALT LAKE CITY, KOLKATA-064 V/S . D.C.I.T., CENTRAL CIRCLE- VII,AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, KOLKATA-700107. ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 2 /APPELLANT .. /RESPONDENT ITA. NOS.1218 - 1222/KOL/2013 ASSESSMENT YEARS: 2004-05 TO 2008-09 SHREE PRAKASH BAGLA, CD-315, SECOR-1, SALT LAKE CITY, KOLKATA-064 V/S . D.C.I.T., CENTRAL CIRCLE- VII,AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, KOLKATA-700107. /APPELLANT .. /RESPONDENT /BY DEPARTMENT SHRI NIRAJ KUMAR, CIT-DR /BY ASSESSEE SHRI S.JHAJHARIA, FCA & SHRI SUJOY SEN, AR /DATE OF HEARING 10-02-2017 /DATE OF PRONOUNCEMENT 26-04-2017 / O R D E R PER WASEEM AHMED, AM OUT OF SEVEN APPEALS TWO APPEAL IN ITA NO.1201-12 02/KOL/2013 BY REVENUE AND OTHER FIVE APPEALS IN ITA NO.1218-1222/ KOL/2013 BY ASSESSEE. THE ASSESSEE HAVE ALSO BEEN FILED CROSS OBJECTION (CO) NO.92-93/KOL/2013 IN APPEALS NO.1201-1202/KOL/2013 AGAINST THE COMMON ORDER OF C OMMISSIONER OF INCOME-TAX (APPEALS)-I DATED 21-02-2013 FOR THE ASSESSMENT YEA RS 2004-05 TO 2009-10 RESPECTIVELY. SHRI S. JHAJHARIA AND SRI SUJOY SEN, LD. AUTHORIZED REPRESENTATIVE APPEARED ON BEHALF OF ASSESSEE AND SHRI NIRAJ KUMAR, LD. DEPART MENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF REVENUE. 3. SINCE COMMON GROUNDS ARE INVOLVED IN ALL THESE A PPEALS AND ASSESSEES COS, THEREFORE THEY WERE HEARD TOGETHER AND ARE BEING DI SPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 3 4. BRIEF FACTS OF THE CASE ARE THAT A SEARCH & SEI ZURE OPERATION U/S 132 OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT ) WAS CONDUCTED ON SALTEE GROUP INCLUDING THE ASSESSEE DATED 25.02.2009 AND O N SUBSEQUENT DATES BY THE INVESTIGATION UNIT OF INCOME TAX DEPARTMENT. THE AS SESSEE IS ONE OF THE DIRECTORS IN THE GROUP. THE ASSESSEE IN RESPONSE TO THE NOTICE U /S 153A OF THE ACT FILED ITS INCOME TAX RETURN DECLARING ITS TOTAL INCOME AT RS. 6,75,110/-. SUBSEQUENTLY NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED UPON T HE ASSESSEE AND ACCORDINGLY ASSESSMENT WAS FRAMED U/S 153A/143(3) OF THE ACT AT A TOTAL INCOME OF RS.45,72,410/- AFTER MAKING CERTAIN ADDITIONS / DIS ALLOWANCES OF THE ASSESSEE WHICH ARE DISCUSSED HEREIN BELOW IN DETAILS. ITA NO.1221/KOL/2013 ASSESSEES APPEAL FOR A.Y. 07. 08. 5. FIRST WE TAKE UP ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL IN GROUND NO. 4 WHICH IS THAT LD. CIT(A) ERRED IN CONFIRMING THE OR DER OF AO BY SUSTAINING THE DISALLOWANCE OF RS.11,16,323/- ON ACCOUNT OF PEAK C REDIT BUT WITHOUT GIVING THE EFFECT OF PEAK CREDIT ADDITIONS MADE IN THE EARLIER ASSESS MENT YEARS. 6. AS A RESULT OF SEARCH, IT WAS DISCOVERED THAT TH E ASSESSEE IS ENGAGED IN THE TRADING BUSINESS OF THE SOAPS, DAMARBATA FURNITURE, WAX OIL WHICH WAS NOT DISCLOSED IN THE INCOME TAX RETURN. THE UNDISCLOSED TURNOVER FROM THE SAID BUSINESS WAS ASCERTAINED AT RS.1,86,57,135/- PERTAINING TO THE Y EAR UNDER CONSIDERATION ON THE BASIS OF SEIZED DOCUMENTS MARKED SPB/20. BESIDES TH E TURNOVER, THE AMOUNT OF PEAK CREDIT WAS ALSO ASCERTAINED AT RS.11,16,323/- TOWARDS THE UNDISCLOSED INVESTMENT IN THE SAID BUSINESS ON THE BASIS OF IMP OUNDED DOCUMENTS AT PAGE 29 MARKED AS SPB/20. THE SAID PEAK CREDIT WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 7. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE L D. CIT(A). THE ASSESSEE BEFORE THE LD. CIT(A) SUBMITTED THAT ONCE THE PROFI T ON THE UNDISCLOSED SALE HAS BEEN ADDED THEN THERE WAS NO JUSTIFICATION FOR THE FURTHER ADDITION OF PEAK CREDIT. IF IT IS DONE SO THEN IT WILL RESULT TO DOUBLE ADDITION O F THE SAME AMOUNT. HOWEVER, THE LD CIT(A) DISAGREED WITH THE CONTENTION OF THE ASSESSE E AND CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER:- ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 4 9. THE APPELLANT HAS CONTESTED THE ADDITION MADE B Y THE AO FOR THE UNDISCLOSED INVESTMENT MADE BY THE APPELLANT IN ITS BU. THE AO HAS MENTIONED IN THE ASSESSMENT ORDERS THAT PEAK CREDIT OF RS.11,16,233/- FOR THE ASSESSMENT YEAR 2007-08 APPEARS AT PAGE 29 OF THE IMPOUNDED DOCUMENT SPB/20. SIMILARLY, PEAK CREDIT OF RS.19,17,196/- FO R THE ASSESSMENT YEAR 2008-09 APPEARS AT PAGE 17 OF THE IMPOUNDED DOCUMEN T SPB/19. THE AO ADDED THE PEAK CREDIT IN THE RESPECTIVE ASSESSMENT YEARS ON ACCOUNT OF UNDISCLOSED INVESTMENT IN THE BUSINESS. THE LD. AR SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN ADDITION THE PEAK CREDIT WHEN THE ENTIRE UNDISCLOSED SALES AS RECORDED IN THE IMPOUNDED DOCUMENTS HAVE ALREADY BEEN CONSIDERED AND THE PROFIT THEREON HAS ALREADY BEEN ASSESSED. IT WA S ARGUED THAT THE ACTION OF THE AO HAS RESULTED IN DOUBLE ADDITION. I DO NOT FI ND MERIT IN THE CONTENTIONS OF THE APPELLANT. THE AO HAS ONLY ASSESSED THE PROFIT ON THE TOTAL UNDISCLOSED SALES AS RECORDED IN THE IMPOUNDED DOCUMENTS. BUT T HEN, THERE HAS TO BE SOME INVESTMENT IN THE UNACCOUNTED BUSINESS. THE LD . AR SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN ADDING THE PEAK CREDIT WHEN THE ENTIRE UNDISCLOSED SALES AS RECORDED IN THE IMPOUNDED DOCUMENTS HAVE A LREADY BEEN CONSIDERED AND THE PROFIT THEREON HAS ALREADY BEEN ASSESSED. IT WAS ARGUED THAT THE ACTION OF THE AO HAS RESULTED IN DOUBLE AD DITION. I DO NOT FIND MERIT IN THE CONTENTIONS OF THE APPELLANT. THE AO HAS ONLY A SSESSED THE PROFIT ON THE TOTAL UNDISCLOSED SALES AS RECORDED IN THE IMPOUNDE D DOCUMENTS. BUT THEN, THERE HAS TO BE SOME INVESTMENT IN THE UNACCOUNTED BUSINESS OF THE APPELLANT. I AM THEREFORE OF THE OPINION THAT THE A O WAS JUSTIFIED IN ADDING THE PEAK CREDIT ON ACCOUNT OF UNDISCLOSED INVESTMENT IN THE BUSINESS. HOWEVER, ONCE THE ADDITION OF RS.11,16,233/- ON ACCOUNT OF PEAK CREDIT WAS MADE IN THE ASSESSMENT YEAR 2007-08, THEN CORRESPONDING SET -OFF HAS TO BE ALLOWED WHILE ADDING THE PEAK CREDIT IN THE SUBSEQUENT YEAR . IN OTHER WORDS, THE ADDITION OF PEAK CREDIT IN THE ASSESSMENT YEAR 2008 -09 IS JUSTIFIED ONLY TO THE EXTENT OF RS.2,00,963/- (RS.19,17,196/- MINUS RS.11 ,16233/-). IN RESULT, THE ADDITION OF PEAK CREDIT OF RS.11,16,233/- IN THE AS SESSMENT YEAR 2007-08 IS CONFIRMED; AND, THE ADDITION OF PEAK CREDIT IN THE ASSESSMENT YEAR 2008-09 IS RESTRICTED TO RS.8,00,963/- BEING AGGRIEVED BY THE ORDER OF LD CIT(A) THE ASSES SEE IS IN SECOND APPEAL BEFORE US ON THE FOLLOWING GROUND OF APPEAL:- 4. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUM STANCES, THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE PEAK CREDIT OF RS. 11, 16,323/- FOR A.Y 2007-08 CONFIRMED BY THE LD. CIT(A) WAS REQUIRED TO BE REDU CED FROM THE INCOME SO ASSESSED AND CONFIRMED BY THE LD. CIT(A) FOR A.YS 2 004-05, 2005-06 AND 2006-07 AND THE LD. CIT(A) HAVING FAILED TO APPRECI ATE THE SAME, DIRECTION MAY KINDLY BE GIVEN FOR REDUCING THE PEAK CREDIT FOR A. Y 2007-08 BY THE INCOME SO ASSESSED IN THE PRECEDING YEARS AND IN VIEW OF FACT S AND CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY. 8. THE LD AR BEFORE US FILED A PAPER BOOK WHICH IS RUNNING FROM PAGES 1 TO 184 AND SUBMITTED THAT PEAK ADDITION MADE BY THE LOWER AUTHORITIES IN THE EARLIER ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07 SHOUL D BE ELIGIBLE FOR DEDUCTION ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 5 FROM THE AMOUNT OF PEAK CREDIT OF THE SUBSEQUENT YE ARS. THE LD CIT(A) HAS DIRECTED THE AO FOR PROVIDING RELIEF TO THE ASSESSEE FOR ALL THE SUBSEQUENT ASSESSMENT YEARS BUT OMITTED TO GIVE THE DIRECTION FOR THE YEAR UNDE R CONSIDERATION. AS SUCH THE LD AR BEFORE US PRAYED TO GIVE THE DIRECTION TO THE LOWER AUTHORITIES FOR THE RELIEF AS SUGGESTED BY THE LD CIT(A). ON THE OTHER HAND, THE LD DR SUBMITTED THAT THERE I S NO EVIDENCE THAT IT IS THE SAME AMOUNT OF MONEY WHICH HAS BEEN USED IN THE UNDISCLO SED BUSINESS OF THE ASSESSEE ON ROTATIONAL BASIS. THE LD DR FURTHER SUBMITTED TH AT THERE IS HARDLY ANY DEBIT OR CREDIT ENTRIES SUGGESTING THAT THE SAME FUND WAS RO TATED IN THE UNDISCLOSED BUSINESS OF THE ASSESSEE. THE MONEY FROM THE UNDISCLOSED BUS INESS HAS BEEN WITHDRAWN FOR THE PERSONAL EXPENSES SUCH AS TELEPHONE EXPENSE, DR IVER SALARY, AIR TICKETS EXPENSES OR THE SAME HAS BEEN WITHDRAWN FOR THE UNA CCOUNTED INVESTMENT. AS SUCH, THE ASSESSEE IS NOT ELIGIBLE FOR THE DEDUCTIO N ON ACCOUNT OF INVESTMENT IN ROTATIONAL BASIS. THE LD DR VEHEMENTLY SUPPORTED TH E ORDER OF LOWER AUTHORITIES. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE PRESENT GROUND OF APPEAL I S ARISING AS ALLEGED BY THE ASSESSEE THAT THE LOWER AUTHORITIES HAVE NOT GIVEN THE EFFECT OF TELESCOPING FOR DETERMINING THE UNDISCLOSED INVESTMENTS. AS A RESUL T OF SEARCH CONDUCTED U/S 132 OF THE ACT, THE ASSESSMENTS FOR 6 YEARS WERE FRAMED U/ S 153A OF THE ACT WHICH BEGINNING FROM AYS 2004-05 TO 2009-10. ACCORDINGLY, THE UNDISCLOSED BUSINESS OF THE ASSESSEE WAS UNEARTHED AND THE ADDITIONS WERE M ADE INTER-ALIA FOR THE PROFIT AND UNDISCLOSED INVESTMENT IN SUCH BUSINESS. THE AO HAS MADE THE ADDITION AGAINST SUCH UNDISCLOSED BUSINESS IN AYS 2007-08, 2008-09 A ND 2009-10 TOWARDS UNDISCLOSED PROFIT FOR RS.7,46,285/- RS.30,69,434/- AND RS.32,57,057/- RESPECTIVELY. AT THE SAME TIME, THE AO MADE THE ADDITION TOWARDS UNDISCLOSED INVESTMENT IN SUCH BUSINESS FOR THE AY 2007-08 ONLY FOR RS.11,16,233/- FOR THE YEAR UNDER CONSIDERATION. HOWEVER, THE LD CIT(A) HAS GIVEN REL IEF TO THE ASSESSEE IN PART FOR THE ADDITION BASED ON THE PROFIT FROM UNDISCLOSED BUSIN ESS. THE LD. CIT(A) HAS CONFIRMED THE ORDER OF THE AO FOR THE YEAR UNDER CONSIDERATIO N WITH REGARD TO THE ADDITION OF THE PEAK CREDIT WITH THE DIRECTION TO SET OFF THE IMPUG NED PEAK CREDIT WHILE ADDING THE PEAK CREDIT IN THE SUBSEQUENT YEAR. ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 6 NOW THE ASSESSEE HAS AGITATED BEFORE US THAT THE AD DITION MADE IN THE ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07 SHOULD BE SET OF F AGAINST THE IMPUGNED PEAK CREDIT I.E. RS.11,16,323/- PERTAINING TO THE YEAR U NDER CONSIDERATION. IN THIS BACKGROUND OF THE FACTS OF THE CASE, THE QUESTION B EFORE US FOR OUR ADJUDICATION ARISES AS TO WHETHER THE SETOFF OF THE PEAK CREDIT OF THE EARLIER YEAR IS JUSTIFIABLE IN THE ABOVE FACTS & CIRCUMSTANCES. 9.1 ADMITTEDLY THE ASSESSEE WAS ENGAGED IN THE BUSI NESS ACTIVITY WHICH WAS NOT DISCLOSED TO THE INCOME TAX DEPARTMENT. THEREFORE T HE PROFIT FROM SUCH BUSINESS ACTIVITY AND THE FUND INVESTED IN SUCH BUSINESS ACT IVITY SHOULD BE BROUGHT TO TAX. HOWEVER ON THE EXAMINING THE ORDER OF LOWER AUTHORI TIES WE FIND THAT THE ADDITION ON ACCOUNT OF PROFIT ON UNDISCLOSED BUSINESS WAS MADE IN THE ASSESSMENT YEARS 2007- 08 TO 2009-10 ONLY. BUT THE ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT WAS ONLY MADE IN THE ASSESSMENT YEAR 2007-08. THEREFORE, THE RE IS NO QUESTION OF THE SET OFF OF THE PEAK CREDIT ADDED TO THE TAXABLE INCOME IN T HE EARLIER YEARS AS NO SUCH ADDITION WAS MADE IN EARLIER YEARS I.E. AYS 2004-05 , 2005-06 AND 2006-07. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF LD CIT(A). HENCE, THIS GROUND OF APPEAL OF ASSESSEE IS DISMISSED. 10. THE 2 ND ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 5 IS TH AT LD CIT(A) ERRED IN CONFIRMING THE ORDER OF AO BY SUSTAINING THE DISALL OWANCE OF RS.6,57,328/- ON ACCOUNT OF UNDISCLOSED INVESTMENT IN THE LAND. 11. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E AO OBSERVED ON THE BASIS OF PAGE 37 AND 1 OF THE SEIZED DOCUMENTS MARKED AS SPB/6 THAT THE INVESTMENT IN THE LAND FOR RS.18,79,488.00 AND RS.26,65,918/- HAS BEEN MADE IN THE YEAR UNDER CONSIDERATION. THUS, THE TOTAL INVESTMENT WAS OF RS .45,45,406/-. OUT OF THE SAID INVESTMENT THE AMOUNT DISCLOSED IN THE BOOKS OF ACC OUNTS OF M/S SANYAL ENGINEERS (P) LTD. WAS OF RS.8,78,090/- AND RS.9,12,118/- RES PECTIVELY. ACCORDINGLY THE DIFFERENCE OF RS. 27,55,198/- WAS OBSERVED WHICH WA S ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 12. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO THE LD. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT THE IMPUGNED INVES TMENT HAS BEEN MADE OUT OF THE RECEIPT OF THE MONEY WHICH HAS BEEN DULY CONSIDERED BY THE AO WHILE WORKING OUT ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 7 THE UNDISCLOSED PROFIT ON THE UNDISCLOSED SALE PERT AINING TO THE ASSESSMENT YEARS 2007-08 TO 2009-10. THUS THE SEPARATE ADDITION ON T HE BASIS OF SAME IMPOUNDED DOCUMENTS CANNOT BE MADE. THE AO IN THE REMAND REPO RT HAS CLEARLY ADMITTED THAT THE PAYMENT RECORDED IN THE IMPOUNDED DOCUMENTS REP RESENTS THE PERSONAL EXPENSES AS WELL AS UNACCOUNTED INVESTMENT. THE LD CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE HAS GIVEN RELIEF TO THE ASSESSEE IN PART BY OBSERVING AS UNDER:- THE AO HAS ADMITTED IN HIS REMAND REPORT THAT THE ROTATION STATEMENT BY THE APPELLANT IN COURSE OF THE APPELLATE PROCEEDINGS INCORPORATES ALL THE DEBIT AND CREDIT ENTRIES RECORDED IN THE SEIZED DOCUMENTS SPB/19, SPB/20,SPB /21 AND SPB/23. THE AO HAS ALSO ADMITTED THAT THE CASH PAYMENTS RECORDED IN TH E IMPOUNDED DOCUMENTS REPRESENT PERSONAL EXPENSES AS WELL AS UNACCOUNTED INVESTMENT . I FIND FROM THE ASSESSMENT ORDER THAT THE AO HAS CONSIDERED ALL THE RECEIPTS A S APPEARING IN THE IMPOUNDED DOCUMENTS SPB/19, SPB/20, SPB/21 AND SPB/23 WHILE C OMPUTING THE UNDISCLOSED SALES FOR THE ASSESSMENT YEARS 2007-08, 2008-09 AND 2009-10. IT WAS EXPLAINED BEFORE ME THAT CASH PAYMENTS TOTALLING TO RS.28,08,425/- A S GIVEN IN THE TABLE CONTAINED IN PARA 14 ABOVE ARE RECORDED IN THE IMPOUNDED DOCUMEN T SPB/19, SPB/20 AND SPB/23. I FIND MERIT IN THE ARGUMENT THAT WHEN THE AO HAS C ONSIDERED ALL THE RECEIPTS RECORDED IN THE IMPOUNDED DOCUMENT WHILE COMPUTING THE UNDIS CLOSED SALES, THEN NO SEPARATE ADDITION CAN BE MADE ON ACCOUNT OF PAYMENTS, RECORD ED IN SUCH IMPOUNDED DOCUMENT AS THEY HAVE COME OUT OF THE RECEIPTS ALREADY CONSI DERED BY THE AO. I HAVE ALREADY CONFIRMED UNDISCLOSED SALES OF RS.1,86,57,135/-, RS .7,6'7,35,863/- AND .RS.8,14,26, 433/- IN THE ASSESSMENT YEARS 2007-08, 2008-09- AN D ,2009-10 AS - COMPUTED' BY THE AO IN HIS ASSESSMENT ORDERS. I HAVE ALSO UPHELD THE ORDER OF THE AO IN ASSESSING THE GROSS PROFIT ON SUCH UNDISCLOSED .SALES AS WELL AS ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT. UNDER THE CIRCUMSTANCES, THE CASH PAYME NTS AS RECORDED IN THE IMPOUNDED DOCUMENTS HAVE TO BE TREATED AS MADE OUT OF THE RECEIPTS RECORDED IN SUCH DOCUMENTS WHICH HAVE ALREADY BEEN CONSIDERED BY THE AO. IN OTHER WORDS, THE CASH PAYMENTS AS RECORDED IN THE IMPOUNDED DOCUMENTS HAV E TO BE TREATED AS EXPLAINED IN VIEW OF THE RECEIPTS RECORDED IN SUCH DOCUMENTS WHI CH HAVE ALREADY BEEN CONSIDERED BY THE AO. I AGREE WITH THE APPELLANT THAT NO SEPAR ATE ADDITION CAN BE MADE ON ACCOUNT OF PAYMENTS RECORDED IN THE IMPOUNDED DOCUMENTS AS THEY HAVE COME OUT OF THE RECEIPTS RECORDED IN SUCH DOCUMENTS WHICH HAVE ALRE ADY BEEN CONSIDERED BY THE AO FOR THE PURPOSES OF TAXATION. HOWEVER, I FIND THAT THE AO HAS POINTED OUT UNDISCLOSED INVESTMENT OF RS.27,55,198/- (RS.17,53,800/- + RS.1 0,01 ,398/-) IN THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2007-08. AS THE PAY MENTS RECORDED IN THE IMPOUNDED DOCUMENTS SPB/19 AND SPB/23 FALL BEYOND THE PERIOD OF THE FINANCIAL YEAR 2006-07, THEY CANNOT BE CONSIDERED TO COVER THE PAYMENTS MAD E IN THE FINANCIAL YEAR 2006-07. BUT THEN, THE PAYMENTS RECORDED IN SPB/20 TOTALLING TO RS.20,97,870/- PERTAIN TO THE FINANCIAL YEAR 2006-07; AND, TO THAT EXTENT, THE UN DISCLOSED INVESTMENT MADE IN THE LAND AT SILIGURI AND RAIARHAT HAS TO BE TREATED AS EXPLA INED IN VIEW OF THE RECEIPTS RECORDED IN SPB/20. THE ADDITION ON ACCOUNT OF THE UNDISCLOS ED INVESTMENT MADE IN THE LAND AT SILIGURI AND RAIARHAT IS THEREFORE RESTRICTED TO RS .6,57,328/- (RS.27,55,198/- MINUS RS.20,97,870/-). BEING AGGRIEVED BY THE ORDER OF LD CIT(A) THE ASSES SEE IS IN 2 ND APPEAL BEFORE US ON THE FOLLOWING GROUND OF APPEAL:- ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 8 5. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUM STANCES, THE LD. CIT(A) FAILED TO APPRECIATE AND CONSIDER THE AMOUNT OF RS.5,46,926/- ALREADY DISCLOSED AND CONSIDERED AND ASSESSED BY THE AO IN RESPECT OF ALL EGED UNDISCLOSED INVESTMENT IN LAND AND AS SUCH THE ACTION OF THE LD . CIT(A) IN CONFIRMING THE ADDITION IN SUCH RESPECT TO THE EXTENT OF RS. 6,57, 328/- SUFFERS INFIRMITY AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES DIRECTIO N MAY KINDLY BE GIVEN FOR REDUCING THE SAID AMOUNT BY THE AMOUNT ALREADY DISC LOSED BY THE APPELLANT IN THE ASSESSMENT PROCEEDINGS AND IT MAY KINDLY BE HEL D ACCORDINGLY. 13. THE LD AR BEFORE US THE REITERATED THE SAME SUB MISSIONS AS MADE BEFORE THE LD CIT(A) AND ON THE OTHER HAND THE LD DR VEHEMENTL Y SUPPORTED THE ORDER OF AUTHORITIES BELOW. 14. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THIS GROUND OF APPEAL RELATES TO THE INVESTMENT MADE BY THE ASSESSEE OUT OF THE BOOKS OF ACCOUNTS WHICH WAS TRE ATED BY THE AO AS UNDISCLOSED INVESTMENT AND LIABLE TO TAX. HOWEVER, THE LD CIT(A ) HAS GIVEN RELIEF TO THE ASSESSEE IN PART BY OBSERVING THAT DOUBLE ADDITION CANNOT BE MADE ON THE BASIS OF SAME IMPOUNDED DOCUMENTS. THUS, IT IS ALSO PERTINENT TO NOTE THAT ONCE THE AD DITION HAS BEEN MADE ON THE BASIS OF IMPOUNDED DOCUMENTS TOWARDS THE PROFIT AND UNDIS CLOSED INVESTMENT AS DISCUSSED ABOVE, THEN IN OUR CONSIDERED VIEW THE NE W ADDITION ON THE BASIS OF SAME IMPOUNDED DOCUMENTS CANNOT BE MADE. HOWEVER, IT IS IMPORTANT TO NOTE THAT THE IMPUGNED UNDISCLOSED INVESTMENT FOR RS.27,55,198/- WAS MADE IN THE YEAR UNDER CONSIDERATION WHEREAS THE AMOUNT IN THE IMPOUNDED D OCUMENTS IS OF RS.20,97,870/- ONLY. THUS FROM THE ABOVE IT IS CLEAR THAT THE INVE STMENT WAS MADE OVER AND ABOVE THE AMOUNT SHOWN IN THE IMPOUNDED DOCUMENTS IN THE YEAR UNDER CONSIDERATION. THEREFORE, THE BALANCE AMOUNT OF RS.6,57,328/- DOES NOT ARISE OUT OF THE IMPOUNDED DOCUMENTS. HENCE, WE FIND NO INFIRMITY IN THE ORDER OF LD CIT(A) AND THEREFORE THIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 15. COMING TO NEXT ISSUE IN GROUND NO. 1,2 & 3 HAS CHALLENGED THE VALIDITY OF THE PROCEEDINGS INITIATED & COMPLETED U/S 153A/143(3) O F THE ACT. FOR THIS, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUM STANCES THE LD. CIT(A) WAS WHOLLY UNJUSTIFIED IN CONFIRMING THE LEGALITY OF OR DER PASSED BY THE AO U/S 153A/143(3) AND IN VIEW OF THE FACTS AND IN THE CIR CUMSTANCES THE ACTION OF ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 9 THE LD CIT(A) IN SUCH RESPECT IS WHOLLY BAD & ILLEG AL AND SUCH ORDER IS LIABLE TO BE QUASHED / CANCELLED / SET ASIDE AND IT MAY KINDL Y BE HELD ACCORDINGLY. 2. WITHOUT PREJUDICE TO GROUND NO.1 ABOVE AND IN VI EW OF THE FACTS AND IN CIRCUMSTANCES, THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT NO VALID SEARCH HAVING TAKEN PLACE IN RESPECT OF THE APPELLANT, THE PROCEEDINGS SO INITIATED BY THE AO U/S. 153A IS VOID ABINITIO AND THE LD. CIT( A) WITHOUT APPRECIATING THE FACT DISMISSED THE APPELLANTS GROUND IN SUCH RESPE CT AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE ORDERED SO PASSED U/S. 153A MAY KINDLY BE QUASHED / CANCELLED / SET ASIDE. 3. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES AND WITHOUT PREJUDICE TO GROUNDS NO.1 & 2ABOVE, THE ENTIRE ASST AND ALL T HE ADDITIONS IN THE HANDS OF YOUR APPELLANT HAVING BEEN MADE BY THE AO ON THE BASIS OF PAPERS AND DOCUMENTS IMPOUNDED DURING SURVEY CARRIED OUT ON AT THE OFFICE OF MAGNA DEALERS (P) LTD. ON 25.02.2009 SUCH SURVEY NOT BEIN G ON SHREE PRAKASH BAGLA AND YOUR APPELLANT AND SUCH PAPERS HAVING BEE N FOUND AND IMPOUNDED FROM THE POSSESSION / CUSTODY OF MAGNA DEALERS (P) LTD. AND NOT YOUR APPELLANT ANY SUCH ASST. AND ADDITION MADE U/S 153A / 143(3) IN THE HANDS OF YOUR APPELLANT WITHOUT EXAMINING THE PERSONS SURVEY ED AND BRINGING ANY EVIDENCE ON RECORD IS WHOLLY BAD, ILLEGAL AND VALID ABINITIO AND IS LIABLE TO BE QUASHED / CANCELLED AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY. 16. AT THE OUTSET, IT WAS OBSERVED THAT THE LD AR I N ITS APPEAL HAS CHALLENGED THE REASSESSMENT PROCEEDINGS INITIATED AND COMPLETED U/ S 153A OF THE ACT. ACCORDINGLY THE LD AR MADE HIS ARGUMENTS IN LENGTH AT THE TIME OF HEARING BUT AT THE CONCLUSION OF THE HEARING ON THIS ISSUE THE LD AR AGREED TO TH E ORDER OF LD CIT(A) AND DID NOT CHALLENGE THE VALIDITY OF ASSESSMENT FRAMED U/S 153 A OF THE ACT. ON THE OTHER HAND, THE LD AR RELIED ON THE ORDER OF AUTHORITIES BELOW. 17. IN VIEW OF ABOVE SUBMISSIONS MADE BY BOTH THE S IDE, WE FIND NO MERIT IN THE ARGUMENT PLACED OF THE LD AR BEFORE US. HENCE, THE ISSUE OF THE LEGALITY OF THE ORDER PASSED BY AO U/S 153A/143(3) OF THE ACT IN THE AFOR ESAID GROUNDS OF APPEAL ARE HEREBY DISMISSED. HENCE, THESE GROUNDS OF ASSESSEE S APPEAL ARE DISMISSED. 18. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. NOW COMING TO THE APPEAL FILED BY REVENUE IN ITA 12 01-1202/KOL/2013 FOR A.YS. 07-08 & 08-09 . 19. AT THE OUTSET, WE NOTE THAT TAX EFFECT IN BOTH THE CASES FILED BY THE REVENUE ARE BELOW THE LIMIT OF 10 LAKH FIXED BY THE CBDT VIDE CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 FOR NOT FILING THE APPEAL BEFORE THE TRI BUNAL. THERE ARE CERTAIN EXCEPTIONS ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 10 CARVED OUT IN THE SAID CIRCULAR AND LD. DR COULD NO T POINT OUT THAT THE PRESENT APPEAL FALLS UNDER ANY OF THE EXCEPTIONS MENTIONED IN THE SAID CIRCULAR. UNDER THESE CIRCUMSTANCES, THESE APPEAL FILED BY THE REVENUE AR E DISMISSED IN LIMINE ON ACCOUNT OF LOW TAX EFFECT. 20. IN THE RESULT, REVENUES APPEALS ARE DISMISSED IN LIMINE. NOW COMING ASSESSEES CO NO.92/KOL/2013 FOR A.Y. 08 -09 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN IT S CO. 1. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE INITIATION OF THE PROCEEDING U/S 153A OF THE ACT AND THE CONSEQUENTIAL ORDER PAS SED BY THE AO U/S. 153A / 143(3) INSPITE OF THE FACT THAT THERE WAS NO SPECIF IC SEARCH WARRANT AGAINST THE APPELLANT ASSESSEE AND AS SUCH THERE WAS NO VALID S EARCH AND FURTHER THAT THE SURVEY OPERATION U/S. 133A OF THE ACT WAS CONDUCTED AT THE PREMISES OF A THIRD PARTY. THE PROCEEDING US/S 153A AS WELL AS TH E ORDER U/S. 153A / 143(3) OF THE ACT ARE LIABLE TO BE QUASHED / CANCELLED. 2. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE ARBITRARY DETERMINATION OF THE UNDISCLOSED SALES AT RS.1,86,57,135/- MADE BY T HE AO IN THE SEARCH ASSESSMENT ON THE BASIS OF CERTAIN ENTRIES IN THE D IARIES MARKED SPB-19, 20, 21 & 23 IMPOUNDED FROM THE PREMISES OF A THIRD PART Y WITHOUT PROPERLY EXAMINING AND VERIFYING THE AUTHENTICITY / VERACITY OF SUCH DIARIES AND THEIR OWNERSHIP (NOT FOUND IN ASSESSEES PREMISES) AND AL L THE DEBIT & CREDIT ENTRIES RECORDED THEREIN AND FURTHERMORE WITHOUT CONSIDERIN G THE ROTATION STATEMENT FILED BY THE ASSESSEE. THE ACTION OF THE LD. CIT(A) WAS WHOLLY UNREASONABL E, UNCALLED FOR AND BAD IN LAW. 3. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN SIMPLE ESTIMATI NG WITHOUT ANY BASIS THE GROSS PROFIT RATE @ 1.5% AND DETERMINING THE UNDISC LOSED PROFIT AT RS.2,79,857/- WRONGLY ACCEPTING THE UNDISCLOSED SAL ES OF RS.1,86,57,135/- DETERMINED BY THE AO ON THE BASIS OF ENTRIES IN THE SAID DIARIES WITHOUT AT ALL CONSIDERING THE ASSESSEES WRITTEN SUBMISSION MADE IN THIS REGARD THAT THERE WAS NO UNDISCLOSED SALE DURING THE YEAR. THE ACTION OF THE LD. CIT(A) WAS WHOLLY UNREASONABL E, UNCALLED FOR AND BAD IN LAW. 4. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE ADDITION OF PEAK CREDIT OF RS.11,16,233/- MADE IN ASSESSMENT ON A/C OF ALLEGED UNDISCLOSED INVESTMENT MADE BY THE ASSESSEE MERELY RELYING ON CERTAIN ENTR IES IN THE DIARIES SPB-19 ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 11 & 20 IMPOUNDED FROM THE PREMISES OF A THIRD PARTY W ITHOUT TAKING INTO ACCOUNT AND CONSIDERING THE ROTATION STATEMENT AND THE ASSE SSEES SUBMISSION. THE ACTION OF THE LD. CIT(A) WAS WHOLLY UNREASONABL E, UNCALLED FOR AND BAD IN LAW. 5. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN PARTIALLY CONFI RMING THE ADDITION OF RS.6,57,328/- (OUT OF TOTAL ADDITION OF RS.27,55,19 8/- MADE IN ASSESSMENT ON A/C OF ALLEGED INVESTMENT MADE BY THE ASSESSEE IN L AND AT SILIGURI AND RAJARHAT MERELY RELYING ON CERTAIN ENTRIES IN THE D IARIES SPB-6 IMPOUNDED FROM THE PREMISES OF A THIRD PARTY) WITHOUT CONSIDE RING AND FURTHER ALLOWING DEDUCTING FROM RS.6,57,328/- A SUM OF RS.5,46,726/- REPRESENTING INVESTMENT IN THE SAID LAND MADE DURING THE YEAR WHICH WAS ALR EADY DISCLOSED. THE ACTION OF THE LD. CIT(A) WAS WHOLLY UNREASONABL E, UNCALLED FOR AND BAD IN LAW. 6. FOR THAT YOUR PETITIONER CRAVES THE RIGHT TO PUT ADDITIONAL GROUNDS AND/OR TO ALTER / AMEND / MODIFY THE PRESENT GROUNDS AT THE T IME OF HEARING. 21. WE HAVE ALREADY DISCUSSED THE ABOVE ISSUE IN AS SESSEES APPEAL IN ITA 1221/KOL/2013 IN PARA-17 OF THIS ORDER AND TAKING A CONSISTENT VIEW WE DISMISS THE ISSUES RAISED BY ASSESSEE IN ITS CO. WE HOLD ACCORD INGLY. 22. IN THE RESULT, ASSESSEES CO IS DISMISSED. COMING TO ASSESSEES APPEAL IN ITA NO.1222/KOL/2013 FOR A.Y 08-09 . 23. AT THE OUTSET IT WAS OBSERVED THAT WE HAVE ALRE ADY DISCUSSED THE ISSUE OF LEGALITY OF THE ORDER PASSED BY THE AO U/S 153A/143 (3) OF THE ACT IN ITA NO.1221/KOL/2013 OF ASSESSEES APPEAL IN PARA-17 OF THIS ORDER. HENCE, BOTH PARTIES ARE AGREED WHATEVER VIEW TAKEN IN ASSESSEES APPEAL (ITA NO.1221/KOL/2013) MAY BE TAKEN IN THIS APPEAL ALSO. WE HOLD ACCORDINGLY. 24. NEXT ISSUE RAISED BY ASSESSEE IN GROUND NO. 4 I S THAT LD. CIT(A) FAILED TO GIVE THE EFFECT OF THE PEAK CREDIT ADDED IN EARLIER YEAR S WHILE DETERMINING THE PEAK CREDIT FOR THE CURRENT YEAR. 25. AT THE OUTSET, IT WAS OBSERVED THAT THE INSTANT ISSUE RAISED BY THE ASSESSEE IS NOT ARISING OUT OF THE ORDER OF AO. THEREFORE THE S AME IS DISMISSED AS INFRUCTUOUS. 26. LAST ISSUE IS GENERAL IN NATURE AND NEEDS NO SE PARATE ADJUDICATION. 27. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 12 COMING TO ASSESSEES CO NO.93/KOL/2013 FOR A.Y.08-0 9 . 28. AT THE TIME OF HEARING, THE LD. AR OF ASSESSEE SUBMITTED THAT HE IS NOT ADVANCING ANY ARGUMENTS IN CO AND PRAYED TO TREAT T HE SAME AS NOT PRESSED. ACCORDINGLY, CO OF ASSESSEE IS DISMISSED AS NOT PRE SSED. 29. IN THE RESULT, ASSESSEES CO IS DISMISSED AS NO T PRESSED. COMING TO ASSESSEEA APPEAL IN ITA NO. 1218-1220/KO L/2013 FOR A.YS. 04-05 TO 06-07 . 30. IN ALL THE ASSESSEES APPEAL THE ISSUE RAISED I N GROUNDS NO. 1 TO 3 ARE THE LEGALITY OF ORDER PASSED BY THE AO U/S 153A/143(3) OF THE ACT. 31. AT THE OUTSET IT WAS OBSERVED THAT WE HAVE ALRE ADY DISCUSSED THE ISSUE OF LEGALITY OF THE ORDER PASSED BY THE AO U/S 153A/143 (3) OF THE ACT IN ITA NO.1221/KOL/2013 OF ASSESSEES APPEAL IN PARA-17 OF THIS ORDER. HENCE, BOTH PARTIES ARE AGREED WHATEVER VIEW TAKEN IN ASSESSEES APPEAL (ITA NO.1221/KOL/2013) MAY BE TAKEN IN THESE APPEALS ALSO. WE HOLD ACCORDINGLY . 32. LAST COMMON GROUNDS IN ALL THE APPEALS ARE GENE RAL IN NATURE AND DO NOT REQUIRE ANY SEPARATE ADJUDICATION. 33. IN THE RESULT, ASSESSEES APPEALS ARE DISMISSED . 34. WE SUMMARISE THE RESULT AS UNDER:- (1) REVENUES APPEALS IN ITA NO. 1201-1202/KOL/2013 ARE DISMISSED IN LIMINE. (2) ASSESSEES APPEALS IN ITA NO.1218-1222/KOL/2013 ARE DISMISSED (3) ASSESSEES CO NO.92/KOL/2013 IS DISMISSED AND T HAT OF CO NO.93/KOL/2013 IS DISMISSED AS NOT PRESSED. ORDER PRONOUNCED IN THE OPEN COURT 26/04/2017 SD/- SD/- ('# ) ( ) (A.T.VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) *RG.PS/DKP* %&'- 26/04 //201 7 ITA NOS.1201-02,1218-22/KOL/2013&CO.92&93/K/2013- SHREE PRAKASH BAGLA A.Y.05-06 TO 08-09 13 / COPY OF ORDER FORWARDED TO:- 1. /REVENUE-DCIT, CENTRAL CIRCLE-VII, AAYAKAR BHAWAN, POOR VA, 110, SHANTIPALLY, KOLKATA-107 2. /ASSESSEE-SHREE PRAKASH BAGLA, CD-315, SECTOR-I, SALT LAKE CITY, KOLKATA-64 3. &0&12 3 / CONCERNED CIT 4. 3- / CIT (A) 5. 678 ##12, 12 , KOLKATA / DR, ITAT, KOLKATA 6. 8;< => / GUARD FILE. BY ORDER/ , /TRUE COPY/ / & 12 ,