The ACIT,(OSD)Range-1., Ahmedabad V. Shri Bharat P.Padia, Ahmedabad

ITA 1906/AHD/2011

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9465 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 01-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Salary income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO.1906/AHD/2011 & C.O. NO.218/AHD/2011 (ASSESSMENT YEAR: 2008-09) ACIT(OSD), RANGE-1, AHMEDABAD APPELLANT VS. SHRI BHARAT P. PADIA 21, VRUNDAVAN BUNGLOWS, NEAR ASHWAMEGH ROW HOUSE, JODHPUR, SATELLITE, AHMEDABAD RESP ONDENT/CROSS OBJECTOR PAN: AAXPP0832E /BY ASSESSEE : SHRI TUSHAR P. HEMANI, A.R. /BY REVENUE : SHRI JAMES KURIAN, SR. D.R. /DATE OF HEARING : 11.01.2017 /DATE OF PRONOUNCEMENT : 18.01.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS REVENUES APPEAL AND ASSESSEES CROSS OBJECTIO N FOR ASSESSMENT YEAR 2008-09 ARISE AGAINST CIT(A)-VI, AHMEDABADS O RDER DATED 18.05.2011 IN APPEAL NO. CIT(A)-VI/DCIT.(OSD) CIR.1/98/10-11IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHOR T THE ACT. 2. WE COME TO THE RIVAL PLEADINGS FIRST. THE REVEN UES SOLE SUBSTANTIVE GROUND STATES THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ITA NO. 1906/AHD/2011 & C.O. NO.218 AHD 2011 (ACIT( OSD) VS. SHRI BHARAT P. PADIA) A.Y. 2008-09 - 2 - ASSESSING OFFICER TO TREAT ASSESSEES PROFITS AMOUN TING TO RS.63,20,152/- DERIVED FROM SHARE TRANSACTIONS AS CAPITAL GAINS IN STEAD OF BUSINESS INCOME AS ADOPTED IN THE COURSE OF REGULAR ASSESSMENT FRAMED ON 31.10.2010. THE ASSESSEE ON THE OTHER HAND ASSAILS CORRECTNESS OF T HE LOWER APPELLATE ORDER DIRECTING THE ASSESSING OFFICER TO TREAT HIS SHARE INVESTMENTS HAVING HOLDING PERIOD OF LESS THAN 30 DAYS YIELDING THE PROFITS IN QUESTION TO BE HIS BUSINESS INCOME. BOTH THE LEARNED REPRESENTATIVES ARE VERY MUCH UNANIMOUS THAT THESE TWO CASES RAISE AN IDENTICAL ISSUE ABOUT TREA TMENT OF ASSESSEES PROFITS DERIVED FROM SHARE TRANSACTIONS ONLY. 3. WE COME TO RELEVANT FACTS. THE ASSESSEE AN IN DIVIDUAL DERIVES SALARY INCOME FROM M/S. DISHMAN PHARMACEUTICALS ALONG WITH INCOME FROM OTHER SOURCES. HE DISCLOSED PROFITS OF RS.76,75,440/- DE RIVED FROM SALE OF SHARE INVESTMENTS AS SHORT TERM CAPITAL GAINS. HIS TOTAL INCOME READS A FIGURE OF RS.85,14,871/-. WE FURTHER DEEM IT APPROPRIATE AT THIS STAGE TO REPRODUCE ASSESSEE SHARE TRANSACTIONS DETAILS IN THE IMPUGNE D ASSESSMENT YEAR AS FOLLOWS: BHARATBHAI PARMANDDAS PADIA (A.Y. 2008-09) STATEMENT OF SHORT TERM CAPITAL GAIN SR. PARTICULARS OF SALE PUR. GAIN/LOS NO. SHARES SALE DT. QTY. SALE RS. PUR. DT. QTY. PUR RS. S DAYS 1 CABLE CORPORATION 09.07.07 10000 385375 31.03.07 10000 125699 259676 100 2 CENTURY TEXTILES 17.12.07 300 335900 10.08.07 300 198813 137087 129 3 CMC LTD. 05.02.08 1500 1287000 03.0203 1500 1241775 45225 0 4 J & K BANK 18.01.03 1500 1272000 18.01.08 1500 1225200 46800 0 5 LOYED STEEL 14.1207 20000 779000 07.11.07 20000 239650 539350 37 6 MASTEK LTD. 29.01.08 200 566000 29.01.08 2000 546482 19518 0 7 MOSER BAER LTD. 14.02.08 2000 358000 14.02.08 2000 342300 15700 0 8 SILVER LINE 08.05.07 400 5620 31.03.07 400 1983 3637 38 9 SONATA SOFTWARE 18.05.07 6000 363560 31.03.07 6000 161868 201692 69 ITA NO. 1906/AHD/2011 & C.O. NO.218 AHD 2011 (ACIT( OSD) VS. SHRI BHARAT P. PADIA) A.Y. 2008-09 - 3 - 10 TATA TEA 14.02.08 1000 795000 14.02.08 1000 756750 38250 0 11 WIPRO LTD. 29.01.08 3000 1266000 29.01.08 3000 1231200 34800 0 12 ZEE ENTERTAINMENT 14.02.08 1500 378000 14.02.08 1500 369375 8625 0 13 SAT INDUSTRIES 31.03.08 13500 396900 18.04.07 13500 155925 240975 347 14 BIRLA KENNAMETAL 03.12.07 5000 460200 03.04.07 5000 164350 295850 244 15 BIRLA KENNAMETAL 01.01.08 5000 468900 03.04.07 5000 164350 304550 272 16 CIPLA LTD. 24.01.08 4500 841500 24.01.08 4500 784816 56684 0 17 CIPLA LTD. 28.01.08 500 89000 28.01.08 500 92600 -3600 0 18 IFICI 20.04.07 24000 907200 31.03.07 24000 249934 657266 20 19 IFICI 20.07.07 21275 1219999 02.04.07 21275 651283 568716 109 20 IFICI 24.07.07 3725 206353 02.04.07 3725 114032 92321 113 21 INDMER BANK 01.04.07 1600 381400 31.03.07 16000 63020 318380 1 22 INDMER BANK 23.05.07 25000 542550 31.03.07 25000 98468 444082 53 23 JAI CORPORATION 25.07.07 400 1269500 15.05.07 400 680313 589187 71 24 JAI CORPORATION 10.12.07 500 516000 02.10.07 500 103495 412505 69 25 JAI CORPORATION 11.12.07 100 102700 02.10.07 100 20699 82001 70 26 JAI CORPORATION 06.02.08 1500 1368478 02.10.07 1500 310485 1057993 127 27 JAI CORPORATION 14.03.08 1300 787306 02.10.07 1300 269074 518232 163 28 LUPIN 01.01.08 5600 3550400 01.01.08 5600 3475360 75040 0 29 LUPIN 28.01.08 2000 1064000 28.01.08 2000 1025000 39000 0 30 NIRLON 07.12.07 6000 640343 22.08.07 6000 376830 263513 107 31 NIRLON 19.02.08 9000 901800 23.08.07 9000 589415 312385 180 TOTAL 23505984 0 15830544 7675440 ITA NO. 1906/AHD/2011 & C.O. NO.218 AHD 2011 (ACIT( OSD) VS. SHRI BHARAT P. PADIA) A.Y. 2008-09 - 4 - 4. THE ASSESSING OFFICER FRAMED REGULAR ASSESSMENT IN ASSESSEES CASE ON 31.12.2010 TREATING THE ABOVE SHORT TERM CAPITAL GA INS AS BUSINESS INCOME INTER ALIA BY OBSERVING THAT AFTER EXAMINING THE RE LEVANT DETAILS AS PER THE SETTLED PARAMETERS OF INTENTION AT THE TIME OF ACQU ISITION, VOLUME AND FREQUENCY OF TRANSACTIONS, BORROWED FUNDS OF RS.8LA CS ALONG WITH LOANS OF RS.1,94,32,710/- FROM OTHER PARTIES/SUNDRY CREDITOR S, PROPORTIONS OF SHARE INCOME/TOTAL INCOME INDICATED HIM TO HAVE BEEN CAR RYING OUT SHARE TRADING ACTIVITY ONLY. 5. WE COME TO LOWER APPELLATE PROCEEDINGS. THE CIT (A) PARTLY REVERSES ASSESSING OFFICERS ACTION AS FOLLOWS: 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE, ASSES SMENT ORDER AND APPELLANT'S SUBMISSION. ASSESSING OFFICER TREATED SHORT-TERM CA PITAL GAIN DISCLOSED BY THE APPELLANT AS BUSINESS PROFIT ON THE GROUND THAT APP ELLANT WAS NOT MAKING INVESTMENT BUT TRADING IN SHARES. ON THE IDENTICAL FACTS, ITAT AHMEDABAD IN THE CASE OF SHRI SUGAM CHAND C SHAH VS ACIT, CIRCLE- 3, SURAT IN ITA NOS 3554/AHD/2008 FOUR AY 2005-06 AND 1932/AHD/2009 FOR AY 2006-07 HELD THAT IN CASES THE SHARES ARE HELD FOR MORE THAN 30 DAYS, TH E TRANSACTION HAS TO BE CATEGORISED AS AN INVESTMENT TRANSACTION WHEREAS TH E SALES HELD FOR A PERIOD UP TO 30 DAYS, THE SAME SHALL BE TREATED AS BUSINESS TRAN SACTIONS. IN ARRIVING AT THIS DECISION, THE ITAT AHMEDABAD HAS CONSIDERED SEVERAL DECISIONS OF VARIOUS BENCHES OF ITAT, HIGH COURTS AND SUPREME COURT. THE ITAT AHMEDABAD HAS ALSO CONSIDERED THE CIRCULAR ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES AND HAS COME TO THIS CONSIDERED FINDING. THE RELEVANT EXTRACT OF THIS ORDER IS QUOTED BELOW- '15. IN RESPECT OF PROFIT OF RS.55,40,679/- BEING ' SHORT-TERM CAPITAL GAIN' AS CLAIMED BY THE ASSESSEE AND HELD AS PROFITS ASSESSE D UNDER THAT BUSINESS BY TWO AUTHORITIES, WE FIND THAT IN MANY CASES THERE IS DE LIVERY OF SHARES AND SHARE WERE REGISTERED IN THE NAME OF THE ASSESSEE. THE HOLDING PERIOD OF THE SHARES IS FROM 'O' DAYS TO '366' DAYS. IN SOME CASES, THE FREQUENCY OF TRANSACTIONS ARE APPARENTLY SUBSTANTIAL AS ON ONE DAY THE ASSESSEE HAS PURCHASE D SEVERAL SCRIPTS AND SOLD SEVERAL OF THEM ON THE SAME DAY. 16. THE QUESTION IS WHETHER THEREFORE, MERELY FROM FREQUENCY OF THE TRANSACTIONS CARRIED ON BY THE ASSESSEE, HE IS TREATED AS DEALER IN SHARES OR STILL HE IS HELD AS INVESTOR. AS FOUND IN THE CASE OF SARNATH INFRASTRU CTURE (P) LTD. VS. ASSTT.CIT(SUPRA) ALSO, ASSESSEE ADDUCED EVIDENCE TO SHOW THAT HIS HOLDINGS ARE FOR INVESTMENT AS RECORDED IN THE BOOKS OF ACCOUNT. THE HOLDINGS ARE VALUED AT COST, AND SUCH ACCOUNTING HAS BEEN ACCEPTED BY THE REVENU E IN EARLIER YEARS. THERE IS NO MATERIAL TO SHOW THAT ASSESSEE HAS DECLARED HIMS ELF AS A TRADER IN SHARES AND LEGAL REQUIREMENTS THEREFORE HAVE BEEN COMPLIED WIT H. IT IS ALSO A FACT THAT HE HAS NOT BORROWED ANY MONEY FOR INVESTING IN SHARES. MER ELY BECAUSE, ASSESSEE HAD SOME BORROWED FUNDS IT WOULD NOT BY ITSELF SHOW THA T THEY WERE DEPLOYED IN INVESTMENT. NOTWITHSTANDING, EVEN BORROWING ARE REQ UIRED TO SETTLE PAYMENTS ITA NO. 1906/AHD/2011 & C.O. NO.218 AHD 2011 (ACIT( OSD) VS. SHRI BHARAT P. PADIA) A.Y. 2008-09 - 5 - OBLIGATIONS 10 RESPECT OF INVESTMENTS, LIKE ONE TAK ES LOAN FOR PURCHASING A HOUSE. IN ANY CASE, HIGH FREQUENCY TRANSACTIONS AND LOW PE RIOD HOLDINGS INDICATE TRADE, WHEREAS LOW FREQUENCY TRANSITIONS AND HIGH PERIOD H OLDINGS INDICATE INVESTMENT. 17. IN THIS CASE THE ASSESSEE HAS DISCHARGED THE ON US OF SHOWING THAT IT IS MAKING INVESTMENT BUT REVENUE IS ABLE TO SHOW THAT THERE A RE HIGH FREQUENCIES AND LOW HOLDINGS IN MANY TRANSACTIONS OF SHARES INDICATING THAT ASSESSEE HAS SOME INTENTION OF PURCHASING AND SELLING SHARES AS A TRA DER. THE CASE OF THE ASSESSEE IS SUPPORTED BY THE FACT THAT IT HAS ENTERED THE PURCH ASES IN THE BOOKS AS INVESTMENT, SHARES ARE VALUED AT COST AND REVENUE IS HOLDING SU CH ACCOUNTING TREATMENT AS INVESTMENT IN THE PAST. THUS, THERE CANNOT BE A FIX ED CRITERIA TO DECIDE AS IN THE PRESENT CASE WHETHER, ASSESSEE HAS TRADED IN SHARES EVENTHOUGH ASSESSEE HELD THEM AS INVESTMENT. 18. THOUGH IT HAS BEEN HELD IN THE CASE OF SAR NATH INFRASTRUCTURE (P) LTD. (SUPRA) THAT DELIVERY OF SHARES IS AN IMPORTANT CRI TERIA FOR HOLDING THAT ASSESSEE IS INVESTING IN THEM BUT AFTER, DEMATIZATION WHERE SHA RES ARE DELIVERED IN THE DEMA J ACCOUNT THE NEXT DAY, IF CANNOT BE HELD THAT IN A LL SUCH EASES, IT WOULD BE INVESTMENT AND NOT TRADING. IF THAT IS SO HELD, THE N ALL THOSE TRADERS IN SHARES IN WHOSE DEMAT ACCOUNTS SHARES ARE DELIVERED CAN BE SA ID TO HAVE EARNED CAPITAL GAINS AND NOT PROFITS. THEREFORE, ONLY ONE CRITERIA I.E. DELIVERY OF SHARES ALONE WILL NOT BE SUFFICIENT TO DECIDE THE ISSUE. EVEN OTHERWI SE IN SARNATH INFRASTRUCTURE (P) LTD. (SUPRA) ITSELF IT HAS BEEN HELD THAT CUMULATIV E EFFECT OF SEVERAL FACTORS WILL DECIDE THE ISSUE. 19. CONSIDERING THE TOTALITY AND PECULIARITY OF THE FACTS OF THIS CASE, WE FIND THAT ASSESSEE IS NEITHER FULLY ACTING AS A TRADER NOR AS , FULLY INVESTOR. DEMARCATION IS QUITE HAZY; THOUGH IN THE BOOKS HE IS SHOWING ALL T HE PURCHASES AS INVESTMENT BUT FREQUENCY OF TRANSACTION IN SEVERAL CASES IS SO LAR GE AND HOLDING PERIOD IN MANY CASES IS SO SMALL - FROM 0 TO A WEEK OR SO THAT ASS ESSEE IS DE FACTO SELLING AND PURCHASING SHARES AS TRADER. HE IS ALSO HOLDING SHA RES FOR LONG PERIOD - INDICATING THAT THEY ARE HELD AS INVESTMENT. THEREFORE, A CRIT ERIA HAS TO BE FIXED FOR, DETERMINING AS TO WHEN HE IS ACTING AS TRADER AND W HEN AS INVESTOR. ACCORDINGLY, WE DECIDE FOLLOWING CRITERIA TO HOLD WHEN GAINS ARE TO BE FAXED AS PROFIT TO BE EARNED UNDER THE BUSINESS OR TO BE FAXED AS SHORT- TERM CAPITAL GAIN, WE HOLD THAT IF SHARES ARE NOT HELD EVEN SAY FOR A MONTH, THEN T HE INTENTION IS CLEARLY TO REAP PROFIT BY ACTING AS A TRADER AND HE DID NOT INTEND TO HOLD THEM IN INVESTMENT PORT- FOLIO. WE BELIEVE THAT IF A PERSON INTENDS TO HOLD HIS PURCHASES OF SHARES AS INVESTMENT, HE WOULD WATCH THE FLUCTUATION OF RATES IN THE MARKET FOR WHICH A MINIMUM TIME IS NECESSARY, WHICH WE ESTIMATE AT ONE MONTH. WHERE SHARE ARE HELD FOR MORE THAN A MONTH, THEY SHOULD BE TREATED AS INVESTMENT AND ON THEIR SALE SHORT TERM CAPITAL GAIN SHOULD BE CHARGED. WHERE SH ARES ARE HELD FOR LESS THAN A MONTH, GAIN ON THEM SHOULD BE TREATED AS PROFIT FRO M BUSINESS. 20. THE ASSESSEE WILL GIVE THE WORKING AND COMPUTIN G 'SHORT-TERM CAPITAL GAINS' ON THE ABOVE BASIS. THE REST OF THE PROFIT WILL BE TRE ATED AS ASSESSABLE UNDER THE HEAD 'BUSINESS'. FOLLOWING THE DECISION OF JURISDICTIONAL TRIBUNAL O N THIS ISSUE ON SIMILAR FACTS, IT IS HELD THAT WHENEVER THE ASSESSEE HAS HE LD THE SHARES FOR THE PERIOD MORE THAN 30 DAYS, THE SAME IS TREATED AS INVESTMENT RES ULTING IN CAPITAL GAIN AND ITA NO. 1906/AHD/2011 & C.O. NO.218 AHD 2011 (ACIT( OSD) VS. SHRI BHARAT P. PADIA) A.Y. 2008-09 - 6 - WHEREVER SHARES ARE HELD UP TO 30 DAYS, THE INCOME ARISING THERE FROM IS TREATED AS BUSINESS INCOME OF THE APPELLANT. ASSESSING OFFICER IS DIRECTED TO RECALCULATE THE IN COME FROM BUSINESS AND INCOME FROM CAPITAL GAIN IN THE LIGHT OF THIS DECISION. THIS LEAVES BOTH PARTIES AGGRIEVED TO THE EXTENT O F THEIR PLEADINGS. 6. HEARD BOTH SIDES. CASE FILE PERUSED. LEARNED R EPRESENTATIVES REITERATE THEIR RESPECTIVE STANDS IN THE COURSE OF HEARING. IT IS EVIDENT THAT THE ASSESSEE HAS CARRIED OUT 31 TRANSACTIONS IN 20 SCRIPS OUT O F WHICH EIGHTEEN TRANSACTIONS INVOLVE HOLDING PERIOD OF MORE THAN A MONTH FURTHER INCLUSIVE OF ELEVEN INSTANCES WHEREIN THE SAID HOLDING PERIOD IS MORE THAN 100 DAYS. HE HAS FURTHER NOT CLAIMED ANY INTEREST EXPENDITURE DE DUCTION QUA THE ABOVE STATED BORROWINGS. LD. DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THIS FACTUAL POSITION. WE THUS FIND NO REASON TO INTERFERE IN T HE CIT(A)S CONCLUSION HEREINABOVE SO FAR AS HE HAS TREATED THE ASSESSEE T O BE AN INVESTOR IN CASE OF SHARE TRANSACTIONS INVOLVING HOLDING PERIOD OF MORE THAN A MONTH. WE ACCORDINGLY REJECT REVENUES SOLE SUBSTANTIVE GROUN D AS WELL AS ITS APPEAL ITA NO.1906/AHD/2011 SUPPORTING THE ASSESSING OFFIC ERS TWIN REASONING NARRATED IN PRECEDING PARAGRAPHS. 7. WE NOW DEAL WITH ASSESSEES CROSS OBJECTION C.O. NO.218/AHD/2011 SEEKING TO TREAT ALL HIS PROFITS FROM SHARE TRANSAC TIONS EVEN HAVING NIL HOLDING PERIOD AS SHORT TERM CAPITAL GAINS. LEARNED COUNSE L FIRST OF ALL INFORMS THE BENCH THAT THE ASSESSEE HAS THROUGHOUT BEEN TREATED AS AN INVESTOR. WE HOWEVER COME TO THE ABOVE EXTRACTED CHART FIRST OF ALL. IT IS CLEAR THAT THE ASSESSEE HAS ENGAGED IN TWELVE TRANSACTIONS HAVING NIL HOLDING PERIOD OR MAXIMUM A DAY OR TWO. LEARNED COUNSEL FAILS TO PRO VE THAT THE SAME ARE IN ANY CASE DELIVERY BASED TRANSACTION HAVING PURCHASE AND SALE INSTANCES ON THE SAME DAY. WE THUS DO NOT DEEM IT APPROPRIATE TO AD OPT JUDICIAL CONSISTENCY IN THE IMPUGNED ASSESSMENT YEAR IN VIEW OF THESE P ECULIAR FACTS. WE HOWEVER FIND FORCE IN ASSESSEES SUBMISSIONS CHALLE NGING THE CIT(A)S ITA NO. 1906/AHD/2011 & C.O. NO.218 AHD 2011 (ACIT( OSD) VS. SHRI BHARAT P. PADIA) A.Y. 2008-09 - 7 - DIRECTIONS TO THE ASSESSING OFFICER FOR TREATING HI S SHARE PROFITS HAVING HOLDING PERIOD UPTO 30 DAYS AS BUSINESS INCOME IN A BSENCE OF ANY SUCH STATUTORY PROVISION CONTAINED IN THE ACT. LD. CIT( A) HAS FOLLOWED SUGAMCHAND C. SHAHS DECISION (SUPRA). WE FIND THA T ANOTHER CO-ORDINATE BENCH IN ACIT VS. SMRUTI SHREYANS SHAH ITA NO.3214/ AHD/2009 DECIDED ON 26.06.2015 HAS ALREADY DISTINGUISHED THE ABOVE DECI SION. WE ACCORDINGLY REVERSE THE CIT(A)S BLANKET DIRECTIONS TO THE ASSE SSING OFFICER. THE ASSESSING OFFICER SHALL NOW TREAT ASSESSEES PROFIT S DERIVED FROM TWELVE TRANSACTIONS HAVING NIL HOLDING PERIOD OR A DAYS H OLDING PERIOD ONLY AS BUSINESS INCOME. THE ASSESSEES CROSS OBJECTION IS PARTLY ACCEPTED. 8. THIS REVENUES APPEAL ITA NO.1906/AHD/2011 IS DI SMISSED. ASSESSEES CROSS OBJECTION 218/AHD/2011 IS PARTLY A LLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 18 TH DAY OF JANUARY, 2017.] SD/- SD/- ( PRAMOD KUMAR ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 18/01/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE . ! / CONCERNED CIT 4. !- / CIT (A) (. )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1. +23 45 / GUARD FILE. BY ORDER / . // . /0