KEKI J VAKIL, MUMBAI V. ACIT CEN CIR 9,

ITA 5940/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1478 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 25-02-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 07-10-2013
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: GOVIND JHAVERI
• Keywords: Peak credit; Initiation of penalty proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUMBAI BEFORE SHRI C.N.PRASAD,JM & SHRI M.K. AGGARWAL, AM INCOME TAX APPEAL NOS. 5 9 40 - 59 46 /MUM/2013 ( / ASSESSMENT YEARS : 200 2 - 03 TO 200 8 - 0 9 ) SHRI KEKI J VAKIL NO.19, MOUNT UNIQUE 62/A, PEDDER ROAD, MUMBAI - 400026 ( / APPELLANT) VS. ACIT, WARD - 16(1) CENTRAL CIRCLE - 9 AAYAKAR BHAVAN, MK ROAD MUMBAI 400 020 ( / RESPONDENT ) ./ ./ PAN/GIR NO. : AAA PV 3421 A / A PPELLANT BY : SHRI GOVIND JHAVERI / REVENUE BY : SHRI RAJESH KUMAR YADAV / DATE OF HEARING : 15 /1 2 /2016 / DATE OF PRONOUNCEMENT : 21 / 1 2 / 2016 / O R D E R PER C.N.PRASAD (J.M.) : ALL THESE APPEALS ARE FILED BY THE A SSESSE FOR THE ASSESSMENT YEARS 2002 - 03 TO 2008 - 09 AGAINST THE COMMON O RDER OF THE CIT (APPEALS) DATED 2 6.07.2013 I N SUSTAINING THE PENALTIES LEVIED UNDER SECTION 271 ( 1 ) (C) OF THE IT ACT. 2. AT THE OUTSET THE LD COUNSEL FOR THE ASSESSEE SUBMITS THAT IN ALL THESE APPEALS, PENALTY U/S 271 (1) (C) WAS LEVIED ON THE ADDITION MADE ON ESTIMATED BASIS @ 2% OF PURCHASE , TREATING THEM AS NOT GENUINE AND FOR THE ASSESSMENT YEAR 2002 - 03, THE PENALTY W AS LEVIED ON THE PEAK CREDIT OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME. THE L D COUSEL FOR THE A SSESSEE 2 SHRI KEKI J VAKIL, ITA NOS. 5940 TO 5946/MUM/2013 FURTHER SUBMITS THAT ON IDENTICAL SITUATION, WHERE THE ADDITIONS MADE ON ESTIMATED BASI S TREATING THE PURCHASES AS NON - GENUINE AND PEAK CREDIT WAS ASSESSED, T HE PENALTY LEVIED U/S 271 (1) (C) ON SUCH ADDITIONS WAS DELETED BY THE COORDINATE BENCH OF THE T RIBUNAL IN A SSESSE E GROUP CASES NAMELY SHRI PRABODH J . KOTHARI VS ACIT IN IT APPEAL NO S . 5926 TO 5932 /MUM/ 2013 DATED 05.10.2015 FOR THE ASSESSMENT YEARS 2002 - 03 TO 2008 - 09 AND SHRI BHARAT J. KOTHARI VS ACIT IN IT APPEAL NOS.5933 TO 5939 /MUM/13 FOR THE ASSESSMENT YEARS 2002 - 03 TO 2008 - 0 9 BY THE O RDER DATED 16.03.2016 . COPIES OF THE O RDERS OF THE COOR DINATE BENCH ARE PLACED ON RECORD. THUS THE LD COUNSEL PLACING RELIANCE ON THESE DECISIONS SUBMITS THAT AS THE FACTS AND CIRCUMSTANCES BEING SIMILAR, THE PENALTY LEVIED IN ASSESSEES CASE FOR THE YEARS 2002 - 03 TO 2008 - 09 ON THE ESTIMATED ADDITION ON PURCH ASE S AND ON PEAK CREDIT ASSESSED BE DELETED. 3. THE DR VEHEMENTLY SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW IN LEVYING THE PENALTY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND C OORDINATE B ENCH DECISION IN THE CASE OF ASSESSEE GROUP IN DELETING THE PENALTIES LEVIED UNDER SECTION 271 ( 1 ) (C) OF THE ACT ON THE ESTIMATED ADDITION OF GP ON PURCHASES / PEAK CREDIT OFFERED BY THE ASSESSEE. IN TH E CASE ON HAND ALSO THE ASSESSING OFFICER COMPLETED TH E ASSESSMENTS UNDER SECTION 143 (3) READ WITH SECTION 153(C) OF THE ACT FOR THE ASSESSMENT YEARS 2002 - 03 TO 2008 - 09 BY TAKING INTO ACCOUNT THE INCOME OFFERED BY THE ASSESSEE EXCEPT FOR THE ASSESSMENT YEARS 2002 - 03 . T HE ASSESSING OFFICER MADE ADDITION BY DI SALLOWING 25% OF THE PURCHASES SAID TO HAVE BEEN MADE IN THE GREY MARKET AND DETERMIN ED THE GROSS PROFIT AFTER 3 SHRI KEKI J VAKIL, ITA NOS. 5940 TO 5946/MUM/2013 TELESCOPING THE PEAK CREDIT OFFERED BY THE ASSESSEE. THE CIT (A PPEALS ) AFTER TAKING INTO ACCOUNT OF THE FACT, THAT NO MATERIAL EVIDENCE WAS FOUND OR S EIZED DURING THE COURSE OF SURVEY CONDUCTED AT THE PREMISES OF THE ASSESSEE, NO DISCREPANCY WAS NOTICED IN THE BOOKS OF ACCOUNT NOR BOOKS OF ACCOUNTS WERE REJECTED, THE GROSS PROFIT SHOWN BY THE ASSESSEE WAS REASONABLE, THE REQUISITE DETAILS WERE FILE D BY THE ASSESSEE, SALES MADE DURING THE YEAR HAD BEEN ACCEPTED AND EVEN THE SALE TAX ASSESSMENTS WERE COMPLETED BY ACCEPTING SUCH SALES AND PURCHASES ETC . HELD THAT THE GROSS PROFIT @2% ON SUCH PURCHASES IS REASONABLE AS AGAINST 25% ESTIMATED BY THE A.O. ON FURTHER APPEAL BY THE REVENUE IN ALL THE THREE CASES OF THE ASSESSEE GROUP THAT IS PRABODH J. KOTHARI, BHARAT J. KOTHARI AND THE ASSESSE E KEKI J VAKIL , THE T RIBUNAL VIDE ITS CONSOLIDATED O RDER DATED 28.12.2011 UPHELD THE ORDER OF THE CIT (APPEALS). T HE PENALTIES LEVIED ON GP ADDITION ESTIMATED ON PURCHASES, WE FIND THAT IN ASSESSEES GROUP CASE, THE TRIBUNAL DELETED THE PENALTY ON IDENTICAL FACTS AND CIRCUMSTANCES I N THE CASE OF PRABODH J. KOTHARI IN ITA NOS.5926 TO 59 32 /MUM/ 13 BY ORDER DATED 05.10.15 , OBSERVING AS UNDER . 12. SO FAR AS THE ASSESSMENT YEAR 2002 - 03 IS CONCERNED, THE PENALTY HAS BEEN LEVIED ON THE GROUND OF SURRENDER OF PEAK INVESTMENT MADE BY THE ASSESSEE ON CASH PURCHASES IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153C. F ROM THE FACTS AS DISCUSSED ABOVE, IT IS QUITE CLEAR THAT THE ASSESSEE WAS FOUND TO BE ENGAGED IN MAKING CASH PURCHASES OF CHEMICALS AND MATERIALS FROM THE GREY MARKET AND TO REGULARIZE THE SAME, HE WAS INVOLVED IN GETTING THE ACCOMMODATION BILLS FROM JITEN DRA DOSHI GROUP. IT IS ALSO TRUE THAT SUCH MODUS OPERANDI OF REGULARIZING CASH PURCHASE, WOULD NOT HAVE SURFACED, HAD THERE NOT BEEN ANY SEARCH OR SURVEY ACTION. BUT IT IS EQUALLY BORNE OUT FROM THE RECORD, THAT NOTHING WAS FOUND THAT ASSESSEE WAS MAKING T HE PURCHASES FROM THE SOURCES OUTSIDE THE BOOKS OF ACCOUNT. AT THE TIME OF SURRENDERING THE PEAK INVESTMENT, THE ASSESSEE VIDE LETTER DATED 11.03.2008 HAD STATED AS UNDER : 4 SHRI KEKI J VAKIL, ITA NOS. 5940 TO 5946/MUM/2013 I WOULD LIKE TO MENTION HERE THAT TO KEEP THE IDENTITY OF OUR SUPPLIERS AND OUR CUSTOMERS BOTH, SECRET, WE NEED TO PROCURE THE GOODS FROM GREY MARKET AND THEREAFTER THE SAME WAS REGULARIZED BY TAKING ACCOMMODATION BILL FROM SHRI JITENDRA DOSHI AND HIS GROUP. WE HAD FROM TIME TO TIME MADE CHEQUE PAYMENT TO SHRI JITENDRA DOSHI AND HIS C ONCERNS AND IN RETURN WE HAD R ECEIVED CASH FROM HIM WHICH WAS UTILIZED FOR MAKING THE PURCHASES. FURTHER, THERE WAS SUBSTANTIAL DISCOUNTS IF THE GOODS WERE PURCHASED IN CASH AND THE ABOVE SYSTEM WAS FOLLOWED SINCE MANY YEARS DUE TO THE BUSINESS EXPEDIENCY AND OTHER RELEVANT FACTORS IN THE INTEREST OF THE BUSINESS. WE WOULD HAVE TO LOST MAJOR CLIENTS, IF THIS SYSTEM IS NOT ADHERE D TO. THE SAID SYSTEM WAS CARRIED OUT REGULARLY AND DUE TO PASSAGES OF TIME, WE WERE ALSO GETTING CREDIT FROM THE SUPPLIERS IN THE GREY MARKET AND THEY WERE PAID AS AND WHEN CASH WAS RECEIVED FROM SHRI JITENDERA DOSHI. HOWEVER, SINCE WE DO NOT HAVE ANY CONCRETE EVIDENCE TO PROVE THE SAME AND FURTHER IN ORDER TO BUY MENTAL PEACE AND TO AVOID PROLONGED LITIGATION WE HAD OFFERED THE PEAK OF INVESTMENTS IN THE HANDS OF VARIOUS PARTNERS/PERSONS FOR THE VARIOUS ASSESSMENT YEARS, SINCE THE ACTIVITY OF PURCHASE IN GREY MARKET WAS DONE BY PERSONS IN THEIR INDIVIDUAL CAPACITY, THE SAME MAY BE TREATED AS INTRODUCTION OF CAPITAL BY THE ABOVE PERSO NS IN THE RESPECTIVE FIRMS. OTHER THAN THE ASSESSEES WORKING OF PEAK INVESTMENT, THERE IS NO MATERIAL EVIDENCE FOUND THAT ACTUAL CASH INVESTMENT OUTSIDE THE BOOKS OF ACCOUNTS WAS MADE BY THE ASSESSEE OR HIS GROUP CONCERNS. IF THE ASSESSEE HAS BEEN PAYI NG THE MONEY FOR CASH PURCHASE FROM THE SOURCE RECORDED IN THE BOOKS OF ACCOUNT IN THE FORM OF ACCOUNT PAYEE CHEQUES TO SHRI JITENDRA DOSHI GROUP WHO IN TURN WAS GIVING CASH TO THE ASSESSEE, THEN THE SAME CASH CONSTITUTES THE SOURCE OF INVESTMENT FOR MAKIN G THE PURCHASES IN THE GREY MARKET. ONCE, WE TAKE INTO FACTOR OF REASONABLE CREDIT PERIOD ALLOWED TO THE ASSESSEE, THEN THERE IS HUGE POSSIBILITY THAT THERE WAS NO REQUIREMENT OF CASH INVESTMENT FOR MAKING THE PAYMENT ON THE SAME DAY OUTSIDE THE BOOKS. THE EXPLANATION OF THE ASSESSEE THAT THE WORKING OF THE PEAK INVESTMENT WAS SOLELY TO BUY PEACE SANS ANY MATERIAL OR EVIDENCE FOUND EITHER IN THE COURSE OF SEARCH ABOUT UNEXPLAINED CASH IN THE CASE OF JITENDRA DOSHI OR ANY 5 SHRI KEKI J VAKIL, ITA NOS. 5940 TO 5946/MUM/2013 ENQUIRY BY THE DEPARTMENT, IS A BONA FIDE AND PROBABLE EXPLANATION WHICH HAS NOT BEEN REBUTTED BY ANY OF THE AUTHORITIES EITHER IN THE COURSE OF THE ASSESSMENT PROCEEDINGS OR IN THE COURSE OF THE PENALTY PROCEEDINGS. THOUGH, THE ADDITION HAS BEEN MADE IN THE QUANTUM PROCEEDINGS BUT THAT ALONE IS NOT A MATERIAL FACTOR SO AS TO COME TO A CONCLUSION THAT ASSESSEE IS GUILTY FOR CONCEALMENT OF INCOME. IN ADJUDGING AS TO WHETHER THE ASSESSEE IS GUILTY OF CONCEALMENT OR OF FURNISHING OF INACCURATE PARTICULARS THEREOF, THE MATTER HAS TO BE REAPPRAISED AFRESH AND CANNOT BE SOLELY GUIDED BY THE FINDINGS GIVEN ON THE QUANTUM SIDE. EVEN THOUGH THE ASSESSEE MAY HAVE SURRENDERED THE PEAK INVESTMENT BUT SUCH A PEAK INVESTMENT WAS NOT CORROBORATED BY ANY FACTUAL EVIDENCE OR MATERIAL THAT ASSESSEE HA S INTRODUCED CASH OUTSIDE THE BOOKS OF ACCOUNTS FOR MAKING THE PURCHASES . THE ASSESSEES EXPLANATION AS GIVEN IN THE PENALTY PROCEEDINGS BEFORE THE AO AS WELL AS BEFORE THE CIT(A) STANDS UNREBUTTED. HERE THE PENALTY HAS BEEN LEVIED MAINLY ON THE GROUND THA T ASSESSEE HAS NOT OFFERED THE PEAK INVESTMENT VOLUNTARILY ALBEIT ONLY WHEN HE WAS CORNERED. THIS FACTUM MAY HAVE GREAT PROBATIVE VALUE FOR INITIATION OF PENALTY PROCEEDINGS OR ARRIVING AT A SATISFACTION, BUT THAT ALONE IS NOT A CONCLUSIVE FACT TO LEVY THE PENALTY. PRESUMPTION AS CAST UPON THE ASSESSEE UNDER EXPLANATION 1 IS A REBUTTABLE PRESUMPTION AND IF SUCH A N ONUS UPON THE ASSESSEE HAS BEEN REBUTTED WITH PROPER EXPLANATION AND FACTS, THEN NO PENALTY CAN BE LEVIED, WITHOUT ANY MATERIAL EVIDENCE TO CONTR OVERT THE ASSESSEES EXPLANATION OR FACTS. SUCH MATERIAL FACTS WHICH RAISES THE PRESUMPTION IN FAVOUR OF THE ASSESSEE ARE THAT, FIRSTLY, THE BOOKS OF ACCOUNT AND TRADING RESULT FOR AY 2002 - 03 HAS BEEN ACCEPTED BY THE AO INASMUCH AS NO DEFECT WHATSOEVER HA S BEEN FOUND EITHER IN THE QUANTITATIVE TALLY OF THE PURCHASES MADE AND THE VALUE OF PURCHASES; SECONDLY, THE SOURCE OF PURCHASES HAVE BEEN EXPLAINED FROM THE BOOKS OF ACCOUNTS AND THERE IS NO OTHER MATERIAL TO SHOW THAT ASSESSEE HAS MADE PURCHASES OUTSIDE THE BOOK OTHER THAN ROTATING THE CHEQUE PURCHASES TO CASH PURCHASES; LASTLY, ONE OF THE MOST CRUCIAL EXPLANATION WHICH STANDS UNREBUTTED IS THAT, ASSESSEE HAD STATED THAT ALL THESE PURCHASES WERE MADE BY VARIOUS CONCERNS BELONGING TO THE ASSESSEE AND HIS FAMILY MEMBERS / GROUP , FROM WHICH THESE TRADING OF CHEMICALS WERE CARRIED OUT. IF AT ALL ANY PEAK INVESTMENT WAS TO BE ADDED THEN THE SAME SHOULD HAVE BEEN EXAMINED IN THE HANDS OF THE FIRM. BE THAT AS IT MAY, ALL THESE MATERIAL FACTS POINTS OUT THAT PREPONDERANCE OF PROBABILITY IS IN FAVOUR OF THE ASSESSEE, BECAUSE ALL THE PROBABLE FACTORS GIVEN BY THE ASSESSEE HAS NEITHER BEEN DISBELIEVED NOR HAS BEEN REBUTTED BY ANY ENQUIRY OR EVIDENCE GATHERED BY THE AO. THUS, WE ARE OF THE OPINION THAT NO PENALTY IS LEVIABLE ON SUCH PEAK INVESTMENT OF RS. 22,27,804/ - MADE FOR THE ASSESSMENT YEAR 2002 - 03. 6 SHRI KEKI J VAKIL, ITA NOS. 5940 TO 5946/MUM/2013 ACCORDINGLY, THE PENALTY LEVIED FOR THE ASSESSMENT YEAR 2002 - 03 STANDS DELETED. 13. SO FAR AS LEVY OF PENALTY ON THE GROSS PROFIT ADDITIONS MADE FOR THE AYS 200 3 - 04 TO 2008 - 09, WE AGREE WITH THE CONTENTION OF THE ASSESSEE THAT NO PENALTY CAN BE LEVIED; FIRSTLY, FOR THE REASON THAT ADDITION ON ACCOUNT OF PEAK INVESTMENT STANDS DELETED IN SO FAR AS IT HAS BEEN SUBSUMED IN THE GP ADDITION, WHICH ULTIMATELY HAS BEEN MADE ON ESTIMATE BASIS AND SECONDLY, APPLICATION OF 2% OF GROSS PROFIT ON CASH PURCHASES IS PURELY ON AD - HOC BASIS WITHOUT THERE BEING ANY MATERIAL ON RECORD TO SUGGEST THAT ASSESSEE HAS EARNED PROFIT OVER AND ABOVE WHAT HAS BEEN DISCLOSED IN THE BOOKS OF ACCOUNT. THE LD. CIT(A) IN THE COURSE OF THE QUANTUM PROCEEDINGS, HAVE GIVEN A VERY CATEGORICAL FINDING OF FACT IN PARA 2.3.8, (THE SUMMARY OF WHICH HAVE BEEN INCORPORATED IN THE FOREGOING PARAGRAPHS), WHICH STANDS UNREBUTTED, ASSUMES QUITE SIGNIFICANCE SO FAR AS PENALTY PROCEEDINGS ARE CONCERNED THAT, FIRSTLY, BOOKS OF ACCOUNT HAVE NOT BEEN REJECTED; SECONDLY, ALL THE DETAILS OF PURCHASES INCLUDING CASH PURCHASES AND QUANTITY AS RECORDED IN THE BOOKS OF ACCOUNTS HAVE NOT BEEN DISTURBED; AND LASTLY, NO MATE RIAL OR EVIDENCE WHATSOEVER HAVE BEEN FOUND SUGGESTING THAT ASSESSEE WAS SUPPRESSING THE GROSS PROFIT ON CASH PURCHASES. ANOTHER VERY IMPORTANT FACT, WHICH IS BORNE OUT FROM THE FINDING GIVEN IN THE QUANTUM PROCEEDINGS AND ALSO FROM THE MATERIAL ON RECORD IS THAT, THE ASSESSEE HAD DISCLOSED ALL THE PURCHASES IN THE BOOKS I.E. INSTEAD OF ACTUAL PURCHASES MADE FROM PARTY A IN CASH, THE ASSESSEE HAS SHOWN THE PURCHASES FROM PARTY B IN CHEQUE. THE AMOUNT ENCASHED OUT OF CHEQUE HAS BEEN UTILIZED FOR MAKING T HE PAYMENT OF PURCHASE. NO VARIATION IN THE QUANTITY OF PURCHASE OR THE VALUE HAS BEEN POINTED OUT BY THE AO. THIS INTER ALIA MEANS THAT, THE GROSS PROFIT SHOWN IN THE BOOK RESULTS TOO HAVE BEEN ACCEPTED. THUS, ON THESE FACTS OF THE CASE NO PENALTY CAN BE LEVIED FOR CONCEALMENT OF INCOME ON THE ADDITION MADE ON AD - HOC BASIS/ESTIMATE BASIS BY APPLYING OF 2% OF THE GP RATES ON CASH PURCHASES. ACCORDINGLY, PENALTY LEVIED FOR THE ASSESSMENT YEAR 2003 - 04 TO 2008 - 09 STANDS DELETED. 5 . FOLLOWING THIS DECISION, THE COORDINATE B ENCH IN THE CASE OF BHARAT J. KOTHARI DELETED THE PENALTIES, BY O RDER DATED 16.03.16 IN ITA NOS.5933 TO 5939/MUM/ 13 FOR THE ASSESSMENT YEARS 2002 - 03 TO 2008 - 09. AS THE FACTS AND CIRCUMSTANCES BEING SIMILAR FOLLOWING THE ABO VE , WE DELETE THE PENALTY 7 SHRI KEKI J VAKIL, ITA NOS. 5940 TO 5946/MUM/2013 LEVIED UNDER SECTION 271 ( 1 ) (C) OF THE ACT IN ASSESSEES CASE FOR THE ASSESSMENT YEARS 2002 - 03 TO 2008 - 09. 6. FURTHER, WE ALSO NOTICED THAT FOR THE ASSESSMENT YEAR 2006 - 07, PENALTY WAS LEVIED IN RESPECT OF DISALLOWANCE MADE BY TH E ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF LONG TERM CAPITAL LOSS ON SALE OF MUTUAL FUNDS ALSO. THE SAID DISALLOWANCE WAS CONFIRMED BY THE CIT (APPEALS) BY THE ORDER DATED 21.07.2011. HOWEVER, THE TRIBUNAL BY ORDER DATED 06.02.2013 DIRECTED THE ASS ESSING OFFICER TO RE - EXAMINE THE ISSUE AND THE ASSESSING OFFICER BY ORDER DATED 29.08.2013 PASSED UNDER SECTION 143(3) READ WITH 254 OF THE ACT ALLOWED THE LONG TERM CAPITAL LOSS OF RS.1,90,397/ - . THUS, SINCE THE CLAIM OF THE ASSESSEE FOR THE LONG TERM CA PITAL LOSS WAS ALLOWED BY THE ASSESSING OFFICER WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL, LEVY OF PENALTY ON DISALLOWANCE OF THIS CAPITAL LOSS DOES NOT ARISE. 7. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COU RT ON THE 21 ST DAY OF DECEMBER 2016. SD/ - SD/ - MANOJ KUMAR AGGARWAL C.N.PRASAD / / ACCOUNTANT MEMBER JUDICIAL MEMBER / MUMBAI; / DATED 21 / 1 2 / 2016 LR, SPS 8 SHRI KEKI J VAKIL, ITA NOS. 5940 TO 5946/MUM/2013 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, (ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. // TRUE COPY / /