M/s Golf Link Software Park (P) Limited, Bangalore V. DCIT, Bangalore

ITA 53/BANG/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5590 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 19-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G SEETHARAMAN
• Assessee Lawyers: HARSHA PRAKASH CITII
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Business income; Depreciation; Transfer pricing; Reasonable cause
• Section: 263

Judgement Text

PAGE 1 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE SHRI N BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI GEORGE GEORGE K, J.M. ITA NO. ASST. YEAR APPELLANT RESPONDENT 40 AND 41/ BANG/10 2005-06 & 2006-07 THE DCIT, CIRCLE- 11(3), BANGALORE. M/S GOLFLINK SOFTWARE PARK P LTD., 1 ST FLOOR, EMBASSY POINT, 150, INFANTRY ROAD, BANGALORE. C.O.NOS.20 & 21/B/10 (IN ITA NOS.40 & 41/B/10) 2005-06 & 2006-07 M/S GOLFLINK SOFTWARE PARK P LTD., 1 ST FLOOR, EMBASSY POINT, 150, INFANTRY ROAD, BANGALORE DCIT, CIRCLE-11(3), BANGALORE 52 & 53/ BANG/10 2005-06 & 2006-07 M/S GOLFLINK SOFTWARE PARK P LTD., 1 ST FLOOR, EMBASSY POINT, 150, INFANTRY ROAD, BANGALORE ACIT, C.C.- 1(2), BANGALORE. DCIT, CIRCLE-11(3), BANGALORE APPELLANT BY : SHRI HARSHA PRAKASH, CIT-II RESPONDENT BY : SHRI G SEETHARAMAN, C.A. ORD ER PER BENCH : THESE SIX APPEALS PREFERRED (I) TWO APPEALS BY THE REVENUE AND (II) TWO APPEALS AS WELL AS CROSS OBJECTIONS BY THE ASSESSEE COMPANY ARE DIRECTED AGAINST THE IMPUGNED APPELLATE ORDERS OF T HE LD. CIT (A)-I, BANGALORE, IN ITA NO. 269 /DC-11(3)/CIT(A)-I/07-08 AND IN ITA NO. 204 /AC- 11(3)/CIT(A)-I/08-09 DATED: 12.10.2009 &13.10.2009 FOR THE ASSESSMENT YEARS 2005-06 & 2006-07 RESPECTIVELY IN THE CASE OF M/S. GOLF LINK SOFTWARE PARK (P) LTD., BANGALORE. PAGE 2 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 2 I. ITA NO.40/B/10 AY 2005-06 - (BY THE REVENUE ): 2. THOUGH THE REVENUE HAS RAISED SE VEN GROUNDS IN ITS GROUNDS OF APPEAL IN AN EXTENSIVE AND ILLUSTRATE MANNER, THE C RUXES OF THE ISSUES ARE TWO-FOLDS, NAMELY: THE LD. CIT (A) ERRED IN: (I) DIRECTING THE AO TO TREAT THE ASSESSEES INCOME FRO M LEASE RENTALS UNDER THE HEAD BUSINESS AND TO ALLOW THE EXPENDITURE AND DEPRECIATION AS CLAIMED; & (II) DELETING THE ADDITION BEING THE STCG ON ACCOUNT OF SALE OF THE LAND TO ITS SISTER CONCERN. II. ITA NO.41/B/10 AY 2006-07 - (BY THE REVENUE ): 2.1. FOR THIS AY TOO, THOUGH THE REVENU E HAS RAISED SIX GROUNDS IN AN ILLUSTRATIVE MANNER AS IN THE PRECEDING AY, THE ESS ENCE OF THE ISSUE IS CONFINED TO A LONE GROUND, NAMELY: (I) THAT THE LD. CIT (A) ERRED IN DIRECTING THE AO TO TREAT THE ASSESSEES INCOME FROM LEASE RENTALS UNDER THE HEAD BUSINESS AND TO ALLOW THE EXPENDITURE AND DEPRECIATION AS CL AIMED III. ITA NOS. 52 & 53/B/10AYS 2005-06 & 06-07 (BY THE ASSESSEE ): 3. THE ASSESSEE COMPANY IN ITS GROUNDS OF APPEAL FOR THE AYS UNDER CHALLENGE HAS RAISED AN IDENTICAL LONE ISSUE THAT - THE LD. CIT (A) ERRED IN SUSTAINING THE DISALLOWAN CE OF INTEREST OF RS.35.96 LAKHS AND RS.53.57 LAKHS RESPE CTIVELY. PAGE 3 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 3 3.1. SUBSEQUENTLY, THE ASSESSEE COMPANY IN ITS CROSS OBJECTIONS [C.O NOS.20 & 21/B/10 FOR THE AYS 2005-06 & 2006-07] RAI SED THE IDENTICAL ISSUES WHICH HAVE ALREADY BEEN FIGURED IN ITS APPEAL S [ITA NOS. 52 & 53/10 FOR THE AYS 2005-06 & 06-07] CITED SUPRA. 3.2 SINCE THE ASSESSEES GRIEVANCES FOR T HE AYS 2005-06 & 06-07 HAVE ALREADY BEEN RAISED IN ITS APPEALS CITED SUPRA , SUBSEQUENT SUBMISSION OF CROSS OBJECTIONS HAD BECOME SUPERFLUOUS AND, ACCORD INGLY, THEY HAVE BEEN TREATED AS REDUNDANT . 4. AS THE ISSUES AGITATED BY THE RIVAL P ARTIES IN THESE APPEALS PERTAINING TO THE SAME ASSESSEE AND RATHER INTER-LI NKED, FOR THE SAKE OF CONVENIENCE AND CLARITY, THEY WERE HEARD, CONSIDERED AND DISPOSED OFF IN THIS COMMON ORDER. 5. BEFORE CONSIDERING THE GRIEVANCES OF EI THER PARTY, IT WAS NOTICED THAT THE APPEALS PREFERRED BY THE ASSESSEE COMPANY FO R BOTH THE AYS UNDER CONSIDERATION WERE BARRED BY LIMITATION. THE ASSESS EE COMPANY, IN ITS IDENTICAL PETITIONS FOR CONDONATION OF DELAY, SUBMIT TED THAT IT HAD ENGAGED THE SERVICES OF THE CHARTERED ACCOUNTANT BASED AT C HENNAI TO PREPARE THE APPEALS FOR BOTH THE AYS UNDER DISPUTE AND, ACCORDI NGLY, THE RELEVANT PAPERS MAILED TO THE ASSESSEE FOR SIGNATURES AND SUBSEQUEN T FILING BEFORE THIS BENCH, WERE LOST IN TRANSIT AND THE CA WAS REQUIRED TO PREPARE FRESH SET OF PAPERS FOR SIGNATURE WHICH CAUSED DELAYS OF 11 AND 1 DAY(S) RESPECTIVELY IN PREFERRING THESE APPEALS BEFORE THIS BENCH. SINCE THE DELAYS WERE UNINTENTIONAL AND BEYOND THE CONTROL OF THE ASSESSEE , IT WAS PASSIONATELY PLEADED THAT THE DELAYS CAUSED BE CONDONED. PAGE 4 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 4 5.1. THE LD. D.R PRESENT WAS HEARD. AFTE R DUE CONSIDERATION OF THE SUBMISSION OF THE LD. A R AND ALSO THE REASONS CONT AINED IN THE PETITIONS, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE WAS PR EVENTED BY A REASONABLE CAUSE IN NOT PREFERRING THE APPEALS WITHIN THE STIP ULATED TIME FRAME. ACCORDINGLY, THE DELAY IS CONDONED AND THE REGISTRY W AS DIRECTED TO PLACE THE APPEAL PAPERS ON RECORD. LET US NOW ADDRESS TO THE GRIEVANCE OF THE REVENUE. I. ITA NO.40 & 41/B/10 AY 2005-06 & 06-07- (BY THE REVENUE ): 6. BRIEFLY STATED, THE ASSESSEE COM PANY GOLF LINK SOFTWARE PARK (P) LIMITED (THE ASSESSEE IN SHORT HENCEFORTH) WAS IN REAL ESTATE DEVELOPMENT BUSINESS. FOR THE AYS UNDER DISPUTE, T HE ASSESSEE HAD FURNISHED ITS RETURNS OF INCOME, ADMITTING INCOME A T RS.NIL AND A LOSS OF RS.33.19 CRORES RESPECTIVELY WHICH WERE INITIALLY PR OCESSED U/S 143(1) OF THE ACT AND, SUBSEQUENTLY, TAKEN UP FOR SCRUTINY. DURING THE PERIOD UNDER CONSIDERATION, THE ASSESSEE HAD RECEIVED RENTS FROM DIFFERENT CONCERNS BY PROVIDING SPACE, OTHER FIT-OUTS AND EQUIPMENTS IN T HE SOFTWARE TECHNOLOGY PARK CONSTRUCTED BY IT IN GOLF AREA OF BANGALORE. T HE INCOME SHOWN BY THE ASSESSEE AS INCOME FROM BUSINESS WAS, HOWEVER, T REATED BY THE AOS AS INCOME FROM HOUSE PROPERTY AND OTHER SOURCES FOR THE REASONS RECORDED IN THEIR RESPECTIVE IMPUGNED ASSESSMENT ORDERS WHIC H ARE UNDER CHALLENGE. BESIDES, FOR THE AY 2005-06, THE AO HAD ALSO COMPUT ED STCG ON SALE OF LAND INSIDE THE TECH. PARK BY THE ASSESSEE TO ONE OF ITS SISTER CONCERNS. PAGE 5 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 5 7. AGGRIEVED, THE ASSESSEE TOOK UP THE ISSUES BEFORE THE LD. CIT (A) FOR REDRESSAL. RECEIPT FROM RENT OF SPACE AND FIT- OUTS ETC . IT WAS THE CASE OF THE ASSESSEE THA T - THE ASSESSEE HAD DEVELOPED A TECHNOLOGY PARK IN A N AREA OF ABOUT 55 ACRES WHICH BEING AN APPROVED TECH PARK UN DER SPI SCHEME HOUSES MANY SOFTWARE COMPANIES; THAT APART F ROM PROVIDING BUILDING, IT HAD TO PROVIDE VARIOUS FACIL ITIES AND AMENITIES TO HAVE THE STATUS OF A SOFTWARE TECHNOLO GY PARK; THAT THE FACILITIES PROVIDED IN THE PARK WERE: FIT-OUTS, CENTRAL AIR CONDITIONING, GENERATOR BACK UP, STREET LIGHTING, FOOD COURTS, ROADS, DRAINAGE, GARDENS, SE CURITY, WATER FACILITIES, SEWERAGE AND WATER TREATMENT PLAN T, ELECTRICITY ETC., - THAT THE INCOME DERIVED IN THE ABOVE CIRCUMSTANCE S BY EXPLOITING THE ASSETS BY LETTING OUT THE SPACE IN T HE STP CANNOT BE CONSIDERED AS RENTAL INCOME ASSESSABLE U/ S 22 OF THE ACT, THIS WAS BECAUSE THE ACTIVITY CARRIED ON B Y THE ASSESSEE WAS NOT A SIMPLE CASE OF LETTING OUT BUILD INGS FOR RENT; THAT IT INVOLVES CARRYING ON A COMPLEX COMMER CIAL ACTIVITY OF SETTING UP A SOFTWARE TECHNOLOGY PARK I N WHICH VARIOUS AMENITIES AND FIT-OUTS PROVIDED WHICH WERE DESIGNED TO ENABLE THE USER OF THE BUILDINGS AND COMMENCE I TS SPECIALIZED BUSINESS; - RELIES ON THE CASE LAW: NATIONAL STORAGE PVT. LTD. 66 ITR 596 (SC); - THAT IT CAN, THEREFORE, BE CONTENDED THAT THE STP DEVELOPED BY THE ASSESSEE INVOLVES CONSTRUCTION OF A SPECIALIZED BUILDING, PROVIDING OF FIT-OUTS ALONG W ITH HOST OF COMMON FACILITIES THAT RESULTS IN CARRYING ON A COM PLEX PAGE 6 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 6 COMMERCIAL ACTIVITY; THAT THERE IS A DISTINCTION BE TWEEN LETTING OUT BUILDING WITH FURNITURE AND CUSTOMARY F ITTINGS AS OPPOSED TO LETTING OUT A BUILDING WITH VARIOUS EQUI PMENTS AND AMENITIES THAT BRING INTO EXISTENCE A STP WHERE THE CLIENTS OF THE ASSESSEE CAN ENTER UPON THE FACILITY AND USE THE SAME FOR THEIR BUSINESSES; THEREFORE THE AMOUNTS PAID BY THE CLIENTS OF THE ASSESSEE FOR USER OF THE STP WOULD B E IN THE NATURE OF A COMPLEX COMMERCIAL ACTIVITY ASSESSABLE UNDER THE HEAD BUSINESS; - THAT THE TENANTS DO NOT PAY ANY RENT TO THE COMMO N AREAS SUCH AS ROADS, PARKS, STREET LIGHTING, COMMON DRAIN AGE FACILITIES, FOOD COURTS, GENERATORS, WATER TREATMEN T PLANTS ETC., HOWEVER, THESE FACILITIES WERE TO BE PROVIDED COMPULSORILY TO ENGULF THE STATUS OF TECH PARK; - THAT THE ENTIRE OPERATIONS WERE TO BE VIEWED AS C OMMERCIAL VENTURE; THAT THE OBJECT AND BUSINESS OF THE ASSESS EE IS TO DO THE BUSINESS OF TECH PARK DEVELOPMENT OPERATIONS AND, THEREFORE, THE INCOME EARNED THERE-FROM WAS TO BE T AXED UNDER THE HEAD BUSINESS INCOME; - THAT THE TECH PARK DEVELOPMENT WAS COVERED BY GOI UNDER INDUSTRIAL POLICY AND PROMOTION; THAT THE GOVERNMEN T ENVISAGED THAT THE DEVELOPMENT OF TECH PARK WAS SIM ILAR TO THE INDUSTRIAL ACTIVITY AND NOT MERE CONSTRUCTION O F BUILDINGS, THUS, THE GOVT. RECOGNIZES THAT THE ACTIVITY UNDERT AKEN WAS COMPLEX OPERATIONS AND NOT MERE CONSTRUCTION OF BUI LDINGS; - RELIES ON THE CASE LAWS: (A) NARAIN SWADESHI WEAVING MILLS 26 ITR 765 (SC); (B) PFH MALL AND RETAIL MANAGEMENT LTD. V. ITO (2008) 110 ITD 337 (KOL) (C) HARVINDER PAL MEHTA V. DCIT 177 TAXMAN ITAT, MUMB AI (D) ITO V. TEJMALBHAI & CO., (2006) 100 TTJ (RAJKOT) 89 8 (E) SRI BALAJI ENTERPRISES V. CIT 225 ITR 471 (KAR); (F) GLOBAL TECH PARK PVT. LTD. V. ACIT 119 TTJ (BANG) 421 PAGE 7 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 7 7.1. AFTER ANALYZING THE RIVAL SUBMISSIONS A ND ALSO PLACING STRONG RELIANCE ON THE FINDING OF THE HONBLE BENCH IN THE CASE OF GLOBAL TECH PARK PVT. LTD. CITED SUPRA, THE LD. CIT (A) WAS OF THE C ONSIDERED VIEW THAT THE RECEIPT FROM RENT FOR SPACE AND FIT-OUTS BE TAXED U NDER THE HEAD INCOME FROM BUSINESS AND THE CLAIM OF EXPENDITURE MADE TH EREON BE ALLOWED. 8. DISENCHANTED WITH THE FINDING OF THE L D. CIT (A), THE REVENUE HAS COME UP WITH PRESENT APPEALS. IT WAS THE CASE OF T HE REVENUE THAT - THE CIT (A) HAD ERRED IN ALLOWING THE CLAIM OF THE ASSESSEE COMPANY THAT ITS INCOME FROM LEASING OUT OF SPACE A ND FIT- OUTS/AMENITIES WAS TAXABLE UNDER THE HEAD BUSINESS IN STEAD OF BIFURCATING THE INCOME FROM LEASING OUT OF SPACE AS INCOME FROM HOUSE PROPERTY AND INCOME FROM FIT- OUTS/AMENITIES AS INCOME FROM OTHER SOURCES WITHO UT APPRECIATING THE FACTS AND CIRCUMSTANCES STATED IN THE RELEVANT ASSESSMENT ORDER; - HE HAD ALSO ERRED IN DIRECTING THE AO TO TREAT TH E ASSESSEES INCOME FROM LEASE RENTALS UNDER THE HEAD BUSINESS AND TO ALLOW ITS CLAIM OF EXPENDITURE IN CLUDING DEPRECIATION ON THE BUILDING; & - THAT HE HAD FURTHER ERRED IN ARRIVING AT A FINDIN G WITHOUT APPRECIATING THAT AS PER THE RELEVANT LEASE AGREEME NTS, THE LEASING OUT OF SPACE WAS INDEPENDENT OF THE LEASING OUT OF FIT-OUTS/AMENITIES ETC., 8.1. THE LD. A R, ON THE OTHER HAND, WAS VERY FERVENT IN HIS URGE THAT THE STAND OF THE LD. CIT (A) HAD THE BACKING O F VARIOUS JUDICIAL PRECEDENTS AND, THEREFORE, PLEADED THAT NO INTERVEN TION OF THIS BENCH IS REQUIRED AT THIS STAGE. PAGE 8 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 8 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT RECORDS AND ALSO THE RELEVANT CASE LAWS ON WHICH EI THER PARTY HAD PLACED THEIR STRONG RELIANCE. 9.1. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAD DEVELOPED A TECHNOLOGY PARK WHEREIN A NUMBER OF ELITE I.T COMPAN IES HAVE BEEN HOUSED. IT WAS ALSO A FACT THAT THE ASSESSEE HAD NOT MERELY LET-OUT ITS BUILDINGS FOR RENT, BUT ALSO CARRIED ON A COMPLEX COMMERCIAL ACTI VITY OF SETTING UP A SOFTWARE TECHNOLOGY PARK IN WHICH VARIOUS AMENITIES AND FIT-OUTS HAVE BEEN PROVIDED. 9.2. IN THIS CONNECTION WE RECALL THE RUL ING OF THE HIGHEST JUDICIARY OF THE LAND IN DISTINGUISHING THE SIGNIFICANCE OF MERE LY LETTING OUT A BARE BUILDING AND A BUILDING BRACED UP WITH VARIOUS AMEN ITIES IN THE CASE OF CIT, BOMBAY CITY 1 V. NATIONAL STORAGE PVT. LTD. REPORTED IN 66 ITR 596 (SC) WHEREIN AFTER ANALYZING THE ISSUE AT LENGTH, THE HO NBLE COURT HAD VISUALIZED THAT IN OUR VIEW, THE HIGH COURT WAS RIGHT IN HOLDING T HAT THE ASSESSEE WAS CARRYING ON AN ADVENTURE OR CONCERN IN THE NATURE OF TRADE. THE ASSESSEE NOT ONLY CONSTRUCTED VAULTS OF SPECIAL DESIGN AND SPECIAL DOORS AND ELECTRIC FI TTINGS, BUT IT ALSO RENDERED OTHER SERVICES TO THE VAULT-HOLDER S. IT INSTALLED FIRE ALARM AND WAS INCURRING EXPENDITURE FOR THE MAINTENANCE OF FIRE ALARM BY PAYING CHARGES TO THE MUNICIPALITY. TWO RAILWAY BOOKING OFFICES WERE OPEN ED IN THE PREMISES FOR THE DISPATCH AND RECEIPT OF FILM PARCE LS. THIS, IT APPEARS TO US, IS A VALUABLE SERVICE. IT ALSO MA INTAINED A REGULAR STAFF CONSISTING OF A SECRETARY, A PEON, A WATCHMAN AND A SWEEPER, AND APART FROM THAT IT PAID FOR THE ENTIRE STAFF OF THE INDIAN MOTION PICTURE DISTRIBUTORS' AS SOCIATION PAGE 9 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 9 AN AMOUNT OF RS. 800 PER MONTH FOR SERVICES RENDERE D TO THE LICENSEES. THESE VAULTS COULD ONLY BE USED FOR THE SPECIFIC PURPOSE OF STORING OF FILMS AND OTHER ACTI VITIES CONNECTED WITH THE EXAMINATION, REPAIRS, CLEANING, WAXING AND REWINDING OF THE FILMS. 9.2.1. FURTHER, AN IDENTICAL ISSUE TO THA T OF THE PRESENT ONE HAD CROPPED UP BEFORE THE EARLIER HONBLE BANGALORE BEN CH IN THE CASE OF GLOBAL TECH PARK (P) LTD. V. ACIT REPORTED IN (2008) 119 TTJ (BANG) 421 WHEREIN IT WAS OBSERVED THAT THE ASSESSEE HAVING BEEN INCORPORATED WITH THE SOL E INTENTION OF DEVELOPING TECHNOLOGY PARK FOR WHICH I T OBTAINED LEASEHOLD LAND FROM KIDC AND ALSO OBTAINED LOAN FRO M BANK FOR CONSTRUCTING SUPERSTRUCTURE THEREON, IT COULD N OT BE CONSIDERED AS HAVING MADE INVESTMENT IN A PROPERTY FOR EARNING RENTAL INCOME ONLY. THE LEASE OF THE PROPE RTY WAS SHOWN AS PART OF THE BUSINESS ACTIVITY, THUS, THE I NCOME RECEIVED THERE FROM CANNOT BE SAID AS INCOME RECEIV ED AS A LAND OWNER BUT AS A TRADER.THE ACTIVITY WAS D ONE BY THE ASSESSEE AS A BUSINESS VENTURE AND WAS IN ACCOR DANCE WITH THE MAIN OBJECT OF THE COMPANY. THE INTENTION OF ANY PRUDENT BUSINESSMAN IS TO EARN;PROFIT AT A MAXIMUM LEVEL AND INVESTMENT MADE IN THE BUSINESS NEVER LOST ITS MAIN INTENTION FOR WHICH IT WAS INCORPORATED.THE ASSESSE E IS PROVIDING WARD AND WATCH, MAINTENANCE OF COMMON ARE A, MAINTENANCE OF LIGHT IN THE COMMON AREA, SUPPLY OF WATER, PROVIDING LIFT, INSTALLATION OF ELECTRIC TRANSFORME R, POWER TO THE LESSEES, PROVIDING GENERATOR, OVER-HEAD WATER T ANKS, MAINTENANCE OF DRAINAGE ETC., THIS CLEARLY ESTABLI SHES THAT THE ENTIRE ACTIVITY IS IN ORGANIZED MANNER TO EARN PROFIT OUT OF INVESTMENT MADE BY THE ASSESSEE AS A COMMERCIAL VENTURE. IN VIEW THEREOF, THE AO IS DIRECTED TO ASSESS THE RENTAL INCOME AS FROM BUSINESS.. PAGE 10 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 10 9.2.2. AS THE ISSUE BEFORE THE EARLIER BE NCH WAS SIMILAR TO THAT OF THE PRESENT CASE WHEREIN THE HONBLE BENCH TOOK COGNIZA NCE OF THE FACT THAT THE ASSESSEE IS PROVIDING WARD AND WATCH, MAINTENAN CE OF COMMON AREA, MAINTENANCE OF LIGHT IN THE COMMON AREA, SUPP LY OF WATER, PROVIDING LIFT, INSTALLATION OF ELECTRIC TRANSFORME R, POWER TO THE LESSEES, PROVIDING GENERATOR, OVER-HEAD WATER TANKS, MAINTEN ANCE OF DRAINAGE ETC., THIS CLEARLY ESTABLISHES THAT THE ENTIRE ACT IVITY IS IN ORGANIZED MANNER TO EARN PROFIT OUT OF INVESTMENT MADE BY THE ASSESSEE AS A COMMERCIAL VENTURE AND, ACCORDINGLY, ARRIVED AT A CONCLUSION THAT THE R ENTAL RECEIPTS OF THE ASSESSEE IS TO BE ASSESSED AS BUSI NESS INCOME. IN CONFORMITY WITH THE FINDING OF THE EARLIER BENCH AS WELL AS RULING OF THE HONBLE APEX COURT CITED SUPRA, WE ARE OF THE CONSI DERED VIEW THAT THE LD. CIT (A) WAS JUSTIFIED IN ARRIVING AT SUCH A CONCLUS ION. IT IS ORDERED ACCORDINGLY . 9.2.3. BEFORE PARTING WITH THE ISSUE, WE WOULD LIKE TO EMPHASIS THAT WE HAVE DULY PERUSED THE CASE LAWS ON WHICH THE REVE NUE HAD PLACED ITS STRONG RELIANCE, CHIEFLY, IN THE CASE OF CIT V. BHOO PALAM COMMERCIAL COMPLEX AND INDUSTRIES PVT. LTD. [262 ITR 517 (KAR)]. IN TH AT CASE, THE ISSUE, IN BRIEF, WAS THAT THE ASSESSEE WAS A PRIVATE LIMITED COMPANY AND ONE OF ITS DIRECTORS HAD TAKEN CERTAIN EXTENT OF LANDS SITUAT ED AT BANGALORE ON A LONG- TERM LEASE OF 36 YEARS UNDER A REGISTERED LEASE-DEE D AND EXECUTED A REGISTERED DEED OF TRANSFER IN FAVOUR OF THE ASSESS EE-COMPANY TRANSFERRING HIS LEASEHOLD RIGHTS. SUBSEQUENTLY, THE ASSESSEE-COM PANY BUILT A COMMERCIAL COMPLEX ON THE SAID LAND AND ALLOTTED THE SAME TO V ARIOUS PARTIES AND EARNED INCOME THERE-FROM. PAGE 11 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 11 FOR THE YEAR 1985-86 AND 86-87, THE ASSES SEE FILED ITS RETURNS OF INCOME SHOWING LOSSES FOR WHICH THE AO COMPLETED TH E ASSESSMENTS MAKING MINOR ADJUSTMENTS IN COMPUTING THE LOSSES. THE CIT INITIATED SUO MOTTO PROCEEDINGS U/S 263 AND AFTER SUCH PROCEEDINGS DIRE CTED THE AO TO MAKE FRESH ASSESSMENTS COMPUTING THE INCOME FROM RENTALS RECEIVED FROM THE COMMERCIAL COMPLEX UNDER THE HEAD 'INCOME FROM HOUS E PROPERTY.' ON AN APPEAL BY THE ASSESSEE, THE TRIBUNAL HELD THAT THE INCOME DERIVED BY THE ASSESSEE COULD HAVE BEEN ASSESSED ONL Y AS INCOME FROM BUSINESS AND NOT UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY'. ACCORDING TO THE TRIBUNAL, SINCE THE LAND OVER WHICH THE PROP ERTY HAD BEEN BUILT IS A LEASEHOLD LAND, THE ASSESSEE CANNOT BE TREATED AS T HE OWNER OF THE LAND WHICH IS A CONDITION PRECEDENT FOR TREATING THE INC OME AS INCOME FROM HOUSE PROPERTY UNDER SECTION 22 OF THE ACT. THE HONBLE COURT, TAKING CUE F ROM THE RULING OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V. PODAR CEMENT (P .) LTD. [1997] 226 ITR 625, HAD HELD THAT THE INCOME DERIVED BY THE COMPANY FROM SHOPS AND STALLS IS INCOME RECEIVED FROM PROPERTY AND FALLS UNDER THE SPECIFIC HEAD DESCRIBED IN SECTION 9. 9.2.4. WE WOULD LIKE TO POINT OUT THAT TH E CASE LAW RELIED ON BY THE REVENUE IS CLEARLY DISTINGUISHABLE TO THE FACTS OF T HE ISSUE ON HAND IN THE SENSE THAT THE PRESENT ASSESSEE, APART FROM PROVIDI NG BARE BUILDING, HAD ALSO PROVIDED VARIOUS AMENITIES SUCH AS FIT-OUTS, CENTR AL AIR CONDITIONING, GENERATOR BACK UPS, STREET LIGHTS, ROADS, DRAINAGE FACILITIES, GARDEN, SECURITY, WATER FACILITIES, SEWERAGE AND WATER TREAT MENT PLANT, SUB-STATION PAGE 12 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 12 FOR ELECTRICITY, WATER TREATMENT PLANT ETC., WHICH W ERE NOT MADE AVAILABLE TO THE TENANTS IN THE CASE BHOOPALAM COMMERCIAL COMPLE X CASE CITED SUPRA. 9.3. IN THE CASE OF SHAMBHU INVESTMENT P. LTD. V. CIT REPORTED IN (2003) 263 ITR 143 (SC), THE ISSUE, IN BRIEF, WAS T HAT THE ASSESSEE OWNED AN IMMOVABLE PROPERTY, A PORTION OF WHICH WAS IN ITS POSSESSION AND LET OUT THE REST TO BE USED AS TABLE SPACE TO OCCUPANTS WITH FURNITURE AND FIXTURES AND LIGHTS AND AIR CONDITIONERS. THE ASSESSEE PROV IDED SERVICES LIKE WATCH AND WARD STAFF, ELECTRICITY, WATER AND OTHER COMMON AMENITIES. THE MONTHLY RENT PAYABLE WAS INCLUSIVE OF ALL CHARGES. THE ASSE SSEE HAD ALSO RECOVERED BY WAY OF SECURITY FROM THE OCCUPANTS. THE HONBLE HI GH COURT OF CALCUTTA [249 ITR 47 (CAL)] HELD THAT THE INCOME FROM THE PR OPERTY WAS ASSESSABLE IN THE HANDS OF THE ASSESSEE AS INCOME FROM HOUSE PROP ERTY. WHEN THE ISSUE CAME UP ON APPEAL BEFORE THE HONBLE HIGHEST JUDICI ARY OF THE LAND, THE APPEAL WAS DISMISSED, HOLDING THAT THERE WAS NO REA SON TO INTERFERE WITH THE CONCLUSION ARRIVED AT BY THE HIGH COURT. 9.3.1. WE WOULD LIKE TO POINT OUT THAT THE ISSUE BEFORE THE HONBLE HIGH COURT WAS THAT THE OCCUPANTS WERE ALLOWED TO USE A PORTION OF PROPERTY AS TABLE SPACE WITH FURNITURE AND FIXTURES, LIGHTS, AIR-CONDITIONERS ETC., AND THE MONTHLY RENT PAYABLE WAS INCLUSIVE OF ALL CHARGE S WHEREAS THE ISSUE ON HAND IS ENTIRELY ON DIFFERENT FOOTING, NAMELY, THE AS SESSEE HAD DEVELOPED ABOUT 4.7 MILLION SQUARE FOOT OF A TECHNOLOGY PARK IN A SPRAWLING AREA OF MORE THAN 55 ACRES BY PROVIDING VARIOUS AMENITIES SU CH AS ROADS, STREET LIGHTS, DRAINAGE FACILITIES, GARDENS, HIGH CONNECTI VITY FACILITIES SUCH AS TELE- COMMUNICATION TOWERS, SEWERAGE AND WATER TREATMENT TANKS, WATER TREATMENT PLANTS TO ATTAIN THE STATUS OF A SOFT-WARE TECHNOLOGY PARK PAGE 13 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 13 WHEREAS IN THE CASE OF SHAMBHU INVESTMENT P. LTD., THE IMMOVABLE WAS A TINY PROPERTY AND THE SO CALLED AMENITIES PROVIDED T O THE OCCUPANTS ONLY AS AGAINST THE AMENITIES PROVIDED IN A STP TO FEED A S PECIAL PURPOSE. LETTING OUT OF A BUILDING IN A STP IS INCIDENTAL WHEREAS TH E FACT IN THE CASE OF SAMBHU INVESTMENT WAS RATHER PREDOMINANT AND, THUS, SAMBHU INVESTMENT CASE CANNOT, AT ANY STRETCH OF IMAGINATION, BE EQUAT ED WITH THAT OF THE PRESENT ASSESSEE. 9.4. TAKING INTO ACCOUNT THE FACTS AN D CIRCUMSTANCES OF THE ISSUE, WE ARE, THEREFORE, OF THE FIRM VIEW THAT THE CASE L AWS ON WHICH THE REVENUE PLACED RELIANCE CANNOT COME TO ITS RESCUE. 10. THE OTHER GRIEVANCE OF THE REVENUE PERTAINING TO THE AY 2005- 06 BEING THAT THE LD. CIT (A) ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF STCG ON SALE OF THE LAND TO THE ASSESSEES SISTE R CONCERN. 10.1. THE ISSUE, IN BRIEF, WAS THAT THE A SSESSEE HAD SOLD 82152 SFT OF LAND IN THE TECH PARK FOR RS.389.52/SFT TO ITS SIST ER CONCERN - M/S. MD PROPERTIES PVT. LTD. ON BEING QUERIED AS TO WHY RS. 1193/SFT BEING MARKET VALUE OF THE LAND SHOULD NOT BE ADOPTED IN THE CASE OF MD PROPERTIES PVT. LTD, THE ASSESSEE, AMONG OTHERS, CONTENTED THAT - THE ASSESSEE COULD NOT ABLE TO RAISE FURTHER FUNDS AS THE FINANCIAL INSTITUTION HAD EXCEEDED THEIR EXPOSURE W HICH RESULTED IN SOME PORTION OF PROPERTY OF THE ASSESSE E BECOMING IDLE FROM THE POINT OF VIEW OF RAISING MON EY. THIS HAD RESULTED IN DISPOSING OFF OF THE PROPERTY UNDER DISTRESS SALE THAT TOO TO ITS GROUP CONCERN WHICH COULD PROF ITABLY PUT THE PROPERTY TO USE; PAGE 14 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 14 - THAT THE SALE WAS MADE AT A PRICE MORE THAN THE G UIDELINES VALUE OF THE PROPERTY; THAT THE A PIECE OF LAND WAS SOLD TO ITS SISTER CONCERN WHICH NEVER PARTED WITH THE PROP ERTY AND THAT THE SALE WAS AT ARMS LENGTH WITHIN THE PARAMET ERS OF LAW. 10.1.1. BRUSHING ASIDE THE ASSESSEES FERVENT REQUEST, THE AO WENT AHEAD IN WORKING OUT THE STCG BY ADOPTING THE VALUE OF THE SAID PROPERTY AT RS.1193/SFT. 10.2. AGGRIEVED BY THE AOS STAND, THE AS SESSEE CARRIED THE ISSUE BEFORE THE LD. CIT (A) FOR RELIEF. WHILE DOING SO, IT WAS CONTENDED THAT - THE ASSESSEE HAD SOLD A PIECE OF LAND TO M.D. PRO PERTIES PVT. LTD. A SISTER CONCERN AT THE RATE OF RS.389 .52/SFT. AND ANOTHER LAND WAS SOLD TO A THIRD PARTY FOR RS.1 193/SFT.; - THAT THE FACT THAT THE SALE TO A THIRD PARTY WAS AT A PRICE WHICH WAS MUCH HIGHER THAN THE RATE ADOPTED FOR THE PURPOSE OF STAMP DUTY PRESCRIBED BY THE STATE GOVT.; THAT S UCH EXCEPTIONAL PRICE CANNOT BE ADOPTED AS STANDARD PRI CE; THAT THE AO HAD NOT BROUGHT ON RECORD ANY DOCUMENTARY EV IDENCE TO PROVE THAT THERE WAS SUPPRESSION OF SALE CONSIDE RATION; - THAT THE SALE PRICE OF RS.389.52/SFT WAS HIGHER T HAN THE VALUE DETERMINED FOR THE PURPOSE OF STAMP DUTY AND, THUS, THE PROVISIONS OF S.50C STANDS COMPLIED WITH; & - THAT THE LAW HAS PROVIDED FOR THE ARMS LENGTH TRA NSACTION RULES WHEREVER IT HAS DEEMED IT NECESSARY. S. 50 P ROVIDING FOR ADOPTION OF THE GUIDELINE VALUE AS THE CONSIDER ATION FOR TRANSFER OF A CAPITAL ASSET, S.80IA (B) REQUIRING A DOPTION OF MARKET VALUE OF GOODS IN PLACE OF THE ACTUAL SALE P RICE IN THE CASES OF CERTAIN SPECIFIED SALES, AND THE TRANSFER PRICING RULES, ARE SOME OF THE EXAMPLES WHICH GIVE THE AO T HE RIGHT TO ADOPT A FAIR VALUE. IN THIS CASE, FIRST, THE TR ANSACTION PAGE 15 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 15 WAS AT A FAIR VALUE AND SECONDLY, THE AO DOES NOT H AVE POWER TO SUBSTITUTE THE VALUE FOR THE ACTUAL SALE P RICE IN THE ABSENCE OF ANY EVIDENCE OF UNDERSTATEMENT OF THE VA LUE. 10.2.1. TAKING COGNIZANCE OF THE ASSESSEES S UBMISSION, THE LD. CIT (A) DELETED THE ADDITION. 10.2.2. IT WAS THE CASE OF THE REVENUE THAT T HE LD. CIT (A) HAD FAILED TO ANALYZE THE ISSUE BEFORE COMING TO SUCH A CONCLUSION . 10.2.3. ON THE OTHER HAND, THE LD. AR WAS EMP HATIC IN HIS RESOLVE THAT THE ISSUE IN QUESTION HAS BEEN DULY EXAMINED BY THE LD. CIT (A) AND, THUS, IT WAS PLEADED THAT THERE WAS NO INFIRMITY IN THE FI NDING OF THE FIRST APPELLATE AUTHORITY WHICH REQUIRES REVIEW AT THIS ST AGE. 10.3. WE HAVE DULY CONSIDERED THE RIVAL SUB MISSIONS AND ALSO PERUSED THE RELEVANT RECORDS. 10.3.1. IT IS AN UNDISPUTED FACT THAT THE ASS ESSEE HAD PARTED WITH A PIECE OF LAND TO ITS SISTER CONCERN FOR A SALE CONSIDERAT ION OF RS.389.52/SFT. WHICH, ACCORDING TO THE ASSESSEE, WAS MORE THAN THE GUIDELINE RATE PRESCRIBED BY THE STATE GOVERNMENT. ANOTHER SALIENT FEATURE IN THIS TRANSACTION WAS THAT THE ASSESSEE HAD SOLD THE SAID PIECE OF LAND TO ITS SISTER CONCERN ONLY AND WHEN THE ASSESSEE HAD AN OCC ASION TO SELL ANOTHER PIECE OF LAND TO A THIRD PARTY M/S.MAC CHARLES PVT . LTD. WHEREIN THE SALE VALUE WAS ADOPTED AT RS.1193/SFT WHICH SIGNIFICANTL Y EXHIBITS THE FAIR-PLAY ON THE PART OF THE ASSESSEE. ON THE OTHER HAND, THE REVENUE HAD NOT BROUGHT ANY CREDIBLE DOCUMENTARY EVIDENCE TO EVEN REM OTELY SUGGEST THAT PAGE 16 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 16 THE ASSESSEE HAD, IN FACT, ATTEMPTED TO SUPPRESS TH E SALE CONSIDERATION ON THIS TRANSACTION. 10.3.2. IN VIEW OF THE ABOVE FACTS, THERE WAS NO JUSTIFICATION ON THE PART OF THE AO TO BRING TO TAX STCG OF RS.6.34 CRORES WI THOUT ANY ADEQUACY OF DOCUMENTARY EVIDENCE ON THIS SCORE. IT IS ORDERED A CCORDINGLY. WE SHALL NOW TAKE UP THE ISS UES RAISED BY THE ASSESSEE FOR CONSIDERATION. ITA NOS. 52 & 53/B/10 AYS 2005-06 & 06-07 (BY THE ASSESSEE ): 11. A LONE GROUND RAISED BY THE ASSES SEE FOR THE BOTH THE AYS UNDER CHALLENGE IS THAT THE LD. CIT (A) WAS NOT JUSTIFIED IN SUSTAINING THE DISALLOWANCE OF INTEREST OF RS.35.96 LAKHS AND RS.5 3.57 LAKHS RESPECTIVELY. 11.1. DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, THE LD. AO NOTICED THAT THE ASSESSEE HAD ADVANCED TO ITS SISTE R CONCERN SUBSTANTIAL AMOUNTS OF RS.47.95 CRORES & RS.71.43 CRORES OUT OF LOANS OF RS.500.36 CRORES AND 672.63 CRORES AVAILED FROM HDFC BANK FO R THE AYS.2005.06 AND 2006.07 RESPECTIVELY. ON BEING QUERIED, IT WAS REVEA LED THAT THE SAME WAS ADVANCED FOR A PROPERTY OWNED BY DYNASTY DEVELOPERS PVT . LTD., AND SINCE NO CORROBORATIVE EVIDENCE WAS PRODUCED, THE LD. AOS WE NT AHEAD IN DISALLOWING PROPORTIONATE PORTION OF INTERESTS FOR THE AYS UNDE R CONSIDERATION FOR THE REASONS RECORDED IN THEIR IMPUGNED ORDERS. PAGE 17 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 17 11.2. ON APPEALS BEFORE THE LD. CIT (A), I T WAS CONTENDED THAT DURING THE COURSE OF BUSINESS HAD GIVEN ADVANCES TO DYNASTY DEVELOPERS PVT. LTD., THAT THE LD. AOS HELD THAT THE GENUINE BUSINESS ADV ANCE GIVEN FOR ACQUIRING LANDS AS DIVERSION OF FUNDS FROM LOAN FUNDS AND, AC CORDINGLY, DISALLOWED RS.35.96 LAKHS AND RS.59.57 LAKHS FOR THE AYS. 2005 -06 AND 06-07 RESPECTIVELY, THAT THE ASSESSEE HAD MADE ADVANCES T O DDPL WITH AN INTENTION TO ACQUIRE REAL ESTATE AND TO EARN PROFIT FROM THE VENTURE ON TOTAL COMMERCIAL UNDERSTANDING AND THAT THE ADVANCES WERE MADE IN THE COURSE OF BUSINESS AND FOR THE PURPOSES OF BUSINESS. STRONG RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: (I) S.A.BUILDERS LTD. V. CIT (APPEALS) (2007) 288 ITR 1 (SC) (II) C.T.DESAI V.CIT (1979) 120 ITR 240 (KAR); (III) MADAV PRASAD JATIA V. CIT (1979) 188 ITR 200 (SC) (IV) CIT V. CHANDULAL KESHAVLAL & CO. (1960) 38 ITR 601 (SC) 11.3. AFTER TAKING INTO ACCOUNT THE SUBMISSI ON OF THE ASSESSEE COUPLED WITH VARIOUS CASE LAWS CITED SUPRA, THE LD. CIT (A) HAD OBSERVED THUS 10. THE ABOVE SHOWS THAT NO NEW ARGUMENT OR FACT H AS BEEN BROUGHT ON RECORD TO ENABLE ME TO DELETE THE A DDITION. 11. IN FACT, I FIND THE APPELLANT HAS HARPED ON TH E LEGAL ISSUES MORE INSTEAD OF GIVING THE DETAILS OF LAND O WNED BY DDPL FOR WHICH INTEREST FREE ADVANCE WAS GIVEN TO I T. IN THE ABSENCE OF SUCH DETAILS, I FIND THE APPELLANT H AS NO CAUSE TO GRIEVE FOR THE JUSTIFIED DISALLOWANCE MADE BY THE AO. PAGE 18 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 18 11.4. DURING THE COURSE OF HEARING BEFORE T HIS BENCH, WHEN IT WAS POINTED OUT THAT THE ASSESSEE HAD DECLARED TOTAL INCOME OF RE.NIL AND (-) RS.33.19 CRORES FOR THE AYS 2005-06 & 06-07 RESPECT IVELY AND IF THE ISSUES WERE TO BE DECIDED IN ITS FAVOUR, THE LOSSES ADMITT ED BY THE ASSESSEE TO BE ENHANCED BY RS.35.96 LAKHS AND RS.53.57 LAKHS AND SU CH LOSSES CANNOT BE CARRIED FORWARD FOR SET OFF AGAINST THE INCOME OF THE ASSESSEE IN THE LATER YEAR(S) SINCE THE ASSESSEE HAD ALREADY AVAILED THE BE NEFIT OF S.80IA OF THE ACT IN THE SUBSEQUENT YEARS, THE LD. A R HAD READILY AND FAIRLY CONCEDED THE OBSERVATION OF THE BENCH. THE LD. AR AGREED THAT H E HAD NO OBJECTION OF THIS BENCHS VIEW TO TREAT THE ISSUE RAISED BY THE A SSESSEE FOR BOTH THE AYS UNDER CHALLENGE AS REDUNDANT AND NO USEFUL PURPOSE WOULD BE SERVED BY DECIDING THE ISSUE ON MERITS. IN VIEW OF THE ABOVE, WE ARE OF T HE CONSIDERED VIEW THAT THE ISSUES RAISED BY THE ASSESSEE DO NOT REQUIRE ANY ADJ UDICATION AT THIS STAGE WHICH HAS BEEN DULY ACKNOWLEDGED BY THE LD. A R REFE RRED ABOVE. 12. IN THE RESULT :- (I) THE REVENUES APPEALS FOR THE AYS 2005-06 AND 2006 - 07 ARE DISMISSED ; (II) THE ASSESSEES APPEALS FOR THE AYS. 2005-06 & 2006-07 ARE DISMISSED ; & (III) THE ASSESSEES CROSS OBJECTIONS FOR THE AYS. 2005-06 & 2006- 07 ARE DISMISSED AS SUPERFLUOUS . THE ORDER PRONOUNCED ON TUESDAY, THE 31 ST DAY OF MAY, 2011 AT BANGALORE. SD/- SD/- (N BARATHVAJA SANKAR) (GEORGE GEORGE K ) VICE PRESIDENT JUDI CIAL MEMBER PAGE 19 OF 19 ITA NOS.40, 41, 52 & 53/BANG/2010 & C.O.NO.20 & 21/BANG/2010 19 COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT(A) C ONCERNED. 4. THE CIT CONCERNED. 5. THE DR 6. GUARD FILE. MSP/20/5. BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.