The ACIT, Circle-4, Baroda V. M/s. Sunrise Polymers & Industries (India) Ltd., Baroda

ITA 772/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60343 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 29-03-2012
• Assessment Year: 1997-1998
• Appeal Filed On: 06-03-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA SRDR
• Assessee Lawyers: S N SOPARKAR SRAR
• Keywords: Gross profit estimation; Corroborative evidences; Commercial expediency; Reassessment proceedings
• Section: 143(3); 142(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.772, 725, 726 & 727/AHD/2009 ASSESSMENT YEARS: 1997-98,1998-99, 2001-02 & 2002-03 ASSTT. COMMISSIONER OF INCOME-TAX, CIRCLE-4, BRODA V/S . M/S SUNRISE POLYMERS & INDUSTRIES (I) LTD., BLOCK NO.30, AT & POST GARADIA, TALUKA SAVLI, BARODA PAN NO.AACCS9813J (APPELLANT) .. (RESPONDENT) /BY ASSESSEE SHRI S.N.SOPARKAR, SR-AR /BY REVENUE SHRI O.P.BATHEJA, SR-DR /DATE OF HEARING 29-03-2012 /DATE OF PRONOUNCEMENT 18-05-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE FOUR APPEALS FILED BY THE REVENUE ARE DIREC TED AGAINST THE DIFFERENT ORDERS PASSED BY THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-III, BARODA IN APPEALS NO. CAB/III-198/03-04, CAB/III/05-06 & CAB/ III/04-05 DATED 19-12-2008 & 16-12-2008 FOR THE ASSESSMENT YEARS 1998-99, 1997-9 8, 2001-02 & 2002-03. SINCE COMMON ISSUES ARE INVOLVED THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF TOGETHER FOR THE SAKE OF CONVENIENCE. FIRST WE TAKE UP ITA NO.772/AHD/2009 (A.Y.97-98). 2. THE REVENUE HAS RAISED ONLY ONE EFFECTIVE GROUND IN THIS APPEAL THAT READS AS UNDER :- 1) THE CIT(A) ERRED ON FACTS AND IN LAW IN DIRECTI NG THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S.80IA OVERLOOKING THE FACT THAT NO SUCH CLAIM WAS MADE BY ASSESSEE IN ORIGINAL RETURN OF INCOME EVEN BY PUTTI NG NOTE IN THE COMPUTATION OF INCOME. MOREOVER, THE CIT(A) HAS ALSO OVERLOOKED THE RATIO LAID DOWN BY ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 2 THE APEX COURT IN THE CASE OF SUN ENGINEERING WORKS (P) LTD (148 ITR 297) THAT THE PROCEEDINGS US.147 ARE NOT FOR THE BENEFIT OF THE ASSESSEE. 3. THE FACTS LEADING TO THE FILING OF THE PRESENT A PPEAL ARE THAT THE ASSESSEE- COMPANY FILED ITS RETURN OF INCOME ON 27-11-1997 DE CLARING TOTAL LOSS OF RS.4,38,070/-. THE CASE WAS SELECTED FOR SCRUTINY A ND AN ORDER UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) WAS PASSED ON 31- 12-1999 AT TOTAL INCOME OF RS.20,76,440/- AND AFTE R GIVING EFFECT TO THE ORDER OF LD. CIT(A), THE TOTAL INCOME WAS ASSESSED AT RS.8,20,79 5/-. SUBSEQUENTLY, IT WAS NOTICED THAT INCOME HAS ESCAPED FROM THE ASSESSMENT ACCORDINGLY, A NOTICE U/S. 148 OF THE ACT WAS ISSUED AFTER TAKING NECESSARY APPROV AL FROM THE APPROPRIATE AUTHORITY AND RECORDING THE REASON FOR REOPENING THE ASSESSME NT AND DULY SERVED UPON THE ASSESSEE THROUGH SPEED POST. THE ASSESSEE IN RESPON SE THERETO FILED INCOME TAX RETURN ON 03/09/2004. ON GOING THROUGH THE RETURN O F THE ASSESSEE, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE-COMPANY HAD MADE FRESH CLAIM IN RESPECT OF BAD DEBT THAT WAS DISALLOWED IN ORIGINAL PROCEEDINGS AN D CLAIM OF DEDUCTION U/S 80IA OF THE ACT WAS MADE FOR THE FIRST TIME IN THE RETURN INCOME FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT AND SUCH CLAIM WAS EITHE R FINALIZED IN THE ORIGINAL ASSESSMENT ORDER OR WERE NOT MADE EARLIER. THE ASS ESSING OFFICER RELYING UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT V. SUN ENGINEERING WORKS P. LTD. (1992) 198 ITR 297 DISALLOWED THE CLAIM OF THE ASSESSEE ON ACCOUNT OF BAD DEBT AND THE DEDUCTION U/S. 80IA OF THE ACT. THE CONTENT ION OF THE ASSESSEE BEFORE THE ASSESSING OFFICER WAS THAT THE CLAIM OF DEDUCTION U /S 80IA OF THE ACT WAS NOT MADE IN ORIGINAL RETURN AS THERE WAS NO POSITIVE INCOME. HOWEVER, THIS CONTENTION WAS NOT ACCEPTED BY ASSESSING OFFICER AND THE CLAIM OF DEDU CTION U/S 80IA OF THE ACT WAS REJECTED. THE ASSESSEE CARRIED THE MATTER BEFORE LD . CIT(A) BY WAY OF APPEAL. 4. LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND BY RELYING UPON THE ORDER PASSED BY HIS PREDECESSOR IN ASSESSE ES OWN CASE FOR ASSESSMENT YEAR 1996-97, ALLOWED THE CLAIM OF THE ASSESSEE IN RESPECT OF DEDUCTION U/S. 80IA OF THE ACT. 5. THE REVENUE FEELING AGGRIEVED BY THIS ORDER OF L D. CIT(A) FILED APPEAL BEFORE US. ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 3 6. AT THE TIME OF HEARING, LD. DEPARTMENTAL REPRESE NTATIVE SUBMITTED THAT LD. CIT(A) FAILED TO TAKE NOTE OF THE JUDGMENT OF HONB LE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS P. LTD. (SUPRA) AND ALLOWED THE DEDUCTION U/S 80IA OF THE ACT, ERRONEOUSLY TO THE ASSESSEE. HE SUBMITTED THAT NO SUCH CLAIM WAS MADE IN THE ORIGINAL RETURN OF INCOME. IT WAS ONLY WHEN THE RET URN WAS FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT, THE ASSESSEE HAD MADE THIS CLAI M. HE SUBMITTED THAT THIS IS NOT PERMISSIBLE IN VIEW OF THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF SUN ENGINEERING WORKS P. LTD. (SUPRA). LD. D. R. SUBMITTED THAT THE RATIO LAID IN SUN ENGINEERING WORKS P. LTD. (SUPRA) HAS BEEN FOLLOWED IN CATENA OF JUDGEMENTS. HE SUBMITTED THAT THE IMPUGNED ORDER IS PATENTLY ERRON EOUS. ON THE CONTRARY, LD. A.R. SUBMITTED THAT THERE WAS NO POSITIVE INCOME AT THE TIME OF FILING OF ORIGINAL RETURN OF INCOME THEREFORE, THERE WAS NO OCCASION TO CLAIM DE DUCTION U/S 80IA OF THE ACT. HE SUBMITTED THAT THE IN THE A.Y. 1996-97, LEARNED CI T(APPEALS) HAD ALLOWED THE CLAIM OF THE ASSESSEE AND THE APPEAL FILED BY THE REVENUE BEFORE THIS TRIBUNAL HAS ALSO BEEN DISMISSED. HE ALSO SUBMITTED THAT EVEN AS PER JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF SUN ENGINEERING WORKS P. LTD. (SUPRA), THE ASSESSEE CAN CLAIM THAT ADDITIONAL INCOME BEING ASSESSED IN REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT IS NOT LIABLE TO TAX AND HENCE, DEDU CTION U/S 80 IA OF THE IS ALLOWABLE AS PER THIS JUDGEMENT OF THE HONBLE APEX COURT ALS O TO THE EXTENT THAT NET INCOME IS REDUCED TO RS. 8.20,800/-. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD AND THE JUDGEMENTS CITED BY THE PARTIES. THE ONLY ISSUE WHICH IS REQUIRED TO BE DETERMINED IN THIS CASE IS WHETHER, THE DEDUCTIO N U/S 80IA OF THE ACT IS AVAILABLE TO ASSESSEE UNDER THE FACTS AND CIRCUMSTANCES OF TH E PRESENT CASE. ADMITTEDLY, THE ASSESSEE HAD NETHER MADE ANY CLAIM OF THE DEDUCTIO N U/S 80IA OF THE ACT IN THE ORIGINAL ASSESSMENT NOR HAD FILED ANY REVISED RETUR N TO THIS EFFECT. IT WAS CLAIMED ONLY WHEN THE RETURN IN RESPONSE TO THE NOTICE ISSUED UN DER SECTION 148 OF THE ACT WAS FILED. LD. A.R. HAS PLACED A COPY OF THE ORDER PASS ED BY CO-ORDINATE BENCH IN ITA NO.719/AHD/2008 IN THE ASSESSEES OWN CASE FOR THE A.Y. 1996-97. THE RELEVANT CONTENT IN PARA-16 OF THE ORDER IS REPRODUCED AS UN DER:- 16. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES. WE FIND THAT THE ASSESSEE HAS FILED REVISED BALANCE SHEET PROFIT AND LOSS ACCOUNT WHICH WERE INCORPORATED IN THE BODY OF PAPER BOOK. WE FIND THA T THE COMPANY IS ASSESSEE FROM LOSS TO POSITIVE INCOME, THEREFORE THE ASSESSE E IS ENTITLED TO DRAW BENEFIT ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 4 UNDER SECTION 80IA OF THE ACT. THEREFORE, THE CIT(A ) IS JUSTIFIED IN HIS ACTION AND OUR INTERFERENCE IS NOT REQUIRED. WE FIND THAT THE HONBLE CO-ORDINATE BENCH IN ITA NO.719/AHD/2008 HAS NOT CONSIDERED THE JUDGMENT OF HONBLE SUPREME COURT RE NDERED IN THE CASE OF SUN ENGINEERING WORKS P. LTD. (SUPRA) AS RELIED BY THE ASSESSING OFFICER FOR DISALLOWANCE OF DEDUCTION U/S. 80IA OF THE ACT IN T HE PRESENT CASE. WE ARE ALSO NOT AWARE WHETHER THE REVENUE HAS FILED ANY APPEAL BEFO RE THE HONBLE JURISDICTIONAL HIGH COURT AGAINST THE ORDER PASSED BY HONBLE CO-O RDINATE BENCH IN ITA NO.719/AHD/2008. THE UNDISPUTED FACT IS THAT IN THE ORIGINAL RETURN THE ASSESSEE HAD NOT CLAIMED DEDUCTION U/S 80IA OF THE ACT, AND IT WAS CLAIMED WHEN A NOTICE U/S 148 WAS ISSUED. THEREFORE, THE CLAIM WAS MADE IN RE -OPENING PROCEEDINGS OF THE ASSESSMENT. HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS P. LTD. (SUPRA) HAS HELD, AS A RESULT OF THE AFORESAID DIS CUSSION, WE FIND THAT, IN PROCEEDINGS UNDER SECTION 147 OF THE ACT, THE INCOM E-TAX OFFICER MAY BRING TO CHARGE ITEMS OF INCOME WHICH HAD ESCAPED ASSESSMENT OTHER THAN OR IN ADDITION TO THAT ITEM OR ITEMS WHICH HAVE LED TO THE ISSUANCE O F THE NOTICE UNDER SECTION 148 AND WHERE REASSESSMENT IS MADE UNDER SECTION 147 IN RES PECT OF INCOME WHICH HAS ESCAPED TAX, THE INCOME-TAX OFFICERS JURISDICTION IS CONFINED TO ONLY SUCH INCOME WHICH HAS ESCAPED TAX OR HAS BEEN UNDER ASSESSED AN D DOES NOT EXTEND TO REVISING, REOPENING OR RECONSIDERING THE WHOLE ASSESSMENT OR PERMITTING THE ASSESSEE TO REAGITATE QUESTIONS WHICH HAD BEEN DECIDED IN THE O RIGINAL ASSESSMENT PROCEEDINGS. IT IS ONLY THE UNDERASSESSMENT WHICH IS SET ASIDE A ND NOT THE ENTIRE ASSESSMENT WHEN REASSESSMENT PROCEEDINGS ARE INITIATED. THE IN COME--TAX OFFICER CANNOT MAKE AN ORDER OF REASSESSMENT INCONSISTENT WITH THE ORIG INAL ORDER OF ASSESSMENT IN RESPECT OF MATTERS WHICH ARE NOT THE SUBJECT MATTER OF PROCEEDINGS UNDER SECTION 147. AN ASSESSEE CANNOT RESIST VALIDITY INITIATED R EASSESSMENT PROCEEDINGS UNDER THIS SECTION MERELY BY SHOWING THAT OTHER INCOME WH ICH HAD BEEN ASSESSED ORIGINALLY WAS AT TOO HIGH A FIGURE EXCEPT IN CASE UNDER SECTI ON 152(2). THE WORDS SUCH INCOME IN SECTION 147 CLEARLY REFER TO THE INCOME WHICH I S CHARGEABLE TO TAX BUT HAS ESCAPED ASSESSMENT AND THE INCOME-TAX OFFICERS JURISDICTION UNDER TH E SECTION IS CONFINED ONLY TO SUCH INCOME WHICH HAS ESCAPED ASSE SSMENT. IT DOES NOT EXTEND TO RECONSIDERING GENERALLY THE CONCLUDED EARLIER ASSES SMENT. CLAIMS WHICH HAVE BEEN DISALLOWED IN THE ORIGINAL ASSESSMENT PROCEEDINGS C ANNOT BE PERMITTED TO BE ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 5 REAGITATED ON THE ASSESSMENT BEING REOPENED FOR BRI NGING TO TAX CERTAIN INCOME WHICH HAD ESCAPED ASSESSMENT BECAUSE THE CONTROVERS Y ON REASSESSMENT IS CONFINED TO MATTERS WHICH ARE RELEVANT ONLY IN RESP ECT OF THE INCOME WHICH HAD NOT BEEN BROUGHT TO TAX DURING THE COURSE OF THE ORIGIN AL ASSESSMENT. A MATTER NOT AGITATED IN THE CONCLUDED ORIGINAL ASSESSMENT PROCE EDINGS ALSO CANNOT BE PERMITTED TO BE AGITATED IN THE REASSESSMENT PROCEEDINGS UNLE SS RELATABLE TO THE ITEM SOUGHT TO BE TAXED AS ESCAPED INCOME. INDEED, IN THE REASSESSMENT PROCEEDINGS FOR BRINGING TO TAX ITEMS WHICH HAD ESCAPED ASSESSMENT, IT WOULD BE OPEN TO AN ASSESSEE TO PUT FORWARD CLAIMS FOR DEDUCTION OF ANY EXPENDITURE IN RESPECT OF THAT INCOME OR THE NON-TAXABILITY OF THE ITEMS AT ALL. K EEPING IN VIEW THE OBJECT AND PURPOSE OF THE PROCEEDINGS UNDER SECTION 147 OF THE ACT WHICH ARE FOR THE BENEFIT OF THE REVENUE AND NOT AN ASSESSEE, AN ASSESSEE CANNOT BE PERMITTED TO CONVERT THE REASSESSMENT PROCEEDINGS AS HIS APPEAL OR REVISION, IN DISGUISE, AND SEEK RELIEF IN RESPECT OF ITEMS EARLIER REJECTED OR CLAIM RELIEF I N RESPECT OF ITEMS NOT CLAIMED IN THE ORIGINAL ASSESSMENT PROCEEDINGS, UNLESS RELATABLE T O ESCAPED INCOME , AND REAGITATE THE CONCLUDED MATTERS, EVEN IN CASES WHER E THE CLAIMS OF THE ASSESSEE DURING THE COURSE OF REASSESSMENT PROCEEDINGS RELAT ING TO THE ESCAPED ASSESSMENT ARE ACCEPTED, STILL THE ALLOWANCE OF SUCH CLAIMS HA S TO BE LIMITED TO THE EXTENT TO WHICH THEY REDUCE THE INCOME TO THAT ORIGINALLY ASS ESSED. THE INCOME FOR PURPOSES OF REASSESSMENT CANNOT BE REDUCED BEYOND THE INCOME ORIGINALLY ASSESSED. 8. WE ARE CONSCIOUS OF THE FACT THAT RATIO LAID IN SUN ENGINEERING WORKS P. LTD. (SUPRA) HAS BEEN FOLLOWED IN CATENA OF JUDGEMENTS. RESPECTFULLY FOLLOWING THE SAME, WE ARE OF THE VIEW THAT THE ASSESSEE IS ENTITLED FO R DEDUCTION U/S 80IA OF THE ACT TO THE EXTENT IT REDUCES THE INCOME DECLARED IN THE OR IGINAL RETURN. WE THEREFORE, MODIFY THE ORDER OF LEARNED CIT(APPEALS) ON THIS ISSUE AN D DIRECT THE ASSESSING OFFICER TO RESTRICT THE DEDUCTION U/S 80 IA OF THE ACT MAXIMUM TO THE EXTENT THAT FINAL ASSESSED INCOME IS REDUCED TO THE INCOME ASSESSED IN ORIGINA L ASSESSMENT PROCEEDINGS I.E. RS. 8,20,800/- WHILE DOING SO SHALL ALSO VERIFY AS TO WHETHER, THE ASSESSEE FULFILS ALL CONDITIONS AS CONTEMPLATED U/S 80IA OF THE ACT FOR CLAIMING THE DEDUCTION U/S 80IA OF THE ACT . THIS GROUND IS PARTLY ALLOWED. 9. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOWE D. NOW WE TAKE UP ITA NO.725/AHD/2009. ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 6 10. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE CIT(A) ERRED ON THE FACTS AND IN LAW IN DIR ECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S. 80IA OVERLOOKING THE FACT T HAT NO SUCH CLAIM WAS MADE BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCO ME. MOREOVER, THE CIT(A) HAS ALSO OVERLOOKED THE RATIO LAID DOWN BY THE APEX COURT IN THE CASE OF SUN ENGINEERING WORKS (P) LTD. (148 ITR 297) THAT THE P ROCEEDINGS U/S. 147 ARE NOT FOR THE BENEFIT OF THE ASSESSEE. 2. THE CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE INTEREST DISALLOWANCE OF RS.1,92,300, OVERLOOKING THE FACT THAT THE ASSESSEE HAD DIVERTED THE INTEREST BEARING FUNDS FOR THE PERSONS FALLING WITHIN THE AM BIT OF SEC. 40A(2)(B) OF THE ACT. 11. THE FACTS IN THIS CASE FOR GROUND NO.1 ARE IDEN TICAL AS IN ITA NO.772/AHD/2009 , HOWEVER, IN THIS APPEAL REVENUE HAS RAISED ONE MO RE GROUND RELATING TO THE DELETING THE INTEREST DISALLOWANCE OF RS.1,92,300/-. 12. GROUND NO.1 IN THIS APPEAL IS WITH REGARD TO TH IS ISSUE AS TO WHETHER THE DEDUCTION U/S 80IA OF THE ACT IS AVAILABLE TO ASSES SEE UNDER THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. THE FACTS AND TH E ISSUE ARE IDENTICAL AS IN ITA NO.772/AHD/2009 AND IN THAT CASE, FOLLOWING RATIO LAID IN SUN ENGINEERING WORKS P. LTD (SUPRA) WE HAVE HELD THAT HE ASSESSEE IS ENTITLED F OR DEDUCTION U/S 80IA OF THE ACT TO THE MAXIMUM EXTENT IT REDUCES THE INCOME ASS ESSED IN THE ORIGINAL ASSESSMENT AND IN DOING SO, THE ASSESSING OFFICER W OULD ALSO VERIFY WHETHER THE ASSESSEE FULFILS ALL CONDITIONS AS CONTEMPLATED U/S 80IA OF THE ACT FOR CLAIMING THE DEDUCTION U/S 80IA OF THE ACT. BUT IN THIS YEAR IT IS TRANSPIRES FROM THE RE-ASSESSMENT ORDER THAT IN THIS YEAR THE AO HAD COMPUTED TOTAL I NCOME AT RS.97,740/-. IT IS UNDISPUTED FACT THAT THE LEARNED CIT(APPEALS) HAS D ELETED DISALLOWANCES OF RS.2,92,788 MADE ON ACCOUNT OF LOW GP AND DELETION OF INTEREST AMOUNTING TO RS.1,79,409/- HAS NOT BEEN CHALLENGED IN THIS APPEA L AND IF APPEAL EFFECT OF THE ORDER OF LEARNED CIT(APPEALS) IS GIVEN, NO POSITIVE INCOM E WOULD REMAIN AND THEREFORE, THE ASSESSEE WOULD NOT BE ENTITLED FOR THE DEDUCTIO N U/S 80IA OF THE ACT. IN SUCH CIRCUMSTANCES THIS GROUND OF REVENUE IS TO BE ALLOW ED BECAUSE NO DEDUCTION IS ALLOWABLE TO THE ASSESSEE U/S 80IA OF THE ACT AS PE R ABOVE DISCUSSION BECAUSE THERE IS NO POSITIVE INCOME IN THIS YEAR EVEN IN RE-ASSES SMENT PROCEEDINGS. ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 7 13. GROUND NO.2 IN THIS APPEAL IS WITH REGARD TO DE LETING THE DISALLOWANCE OF RS.1,92,300/- MADE ON ACCOUNT OF INTEREST EXPENSES . LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IN EARLIER YEAR, INTEREST PAID TO THE SAME PARTIES WERE ALLOWED BY THE ASSESSING OFFICER BUT IN THIS Y EAR, THE SAME HAS BEEN DISALLOWED BY HIM. LD. AR FURTHER SUBMITTED THAT IN THE CASE OF CIT V. SHRI YASHWANT S TEJANI IN ITA NO.268/AHD/2005 FOR A.Y. 2001-02, ORDER DATED 04-09-2009, AO ACCEPTED AS VALID CLAIM BUT IN SUBSEQUENT YEAR, THE SAME WAS NOT ACCEPTED. HE SUBMITTED THAT THE AO OUGHT TO BE CONSISTENT IN HIS EFFORT. LD. AR PLACED RELIANCE ON THE ORDER PASSED BY HONBLE CO-ORDINATE BENCH IN TH E CASE OF SHRI YASHWANT S TEJANI (SUPRA). THE RELEVANT CONTENTS OF THE SAME ARE REP RODUCED AS UNDER:- 10. 3 RD GROUND IS REGARDING DISALLOWANCE OF RS.1,28,607DEL ETED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS MADE FOLLOWING INTEREST FREE ADVANCES. (A) SHRI CHANDUBHAI B PATEL RS. 46,800/- (B) ST. KOKILABEN Y TEJAN RS.5,39,685/- (C) SHRI MAHESH L TEJANI RS. 45,000/- (D) SHRI MANISH L TEJANI RS. 83,000/- RS 7,14, 485/- 11. THE ASSESSEE EXPLAINED THESE INTEREST FREE ADVA NCES AS UNDER:- REGARDS TO LOANS AND ADVANCE GIVEN TO: LOANS GIVEN TO KOKILABEN TEJANI IS AN OPENING BALAN CE CARRIED FORWARD AND PAID DURING THE YEAR IS GIVEN ON BEHALF OF YESH UBHAI TEJANI, HUF, INSTEAD OF DEBITING TO CAPITAL ACCOUNT IS SHOWN AS LOAN GIVEN. AMOUNT PAID TO MAHESH TEJANI IS CARRIED FORWARD FRO M PREVIOUS YEAR AND IS OPENING BALANCE. SHRI MANISH L TEJANI IS AN EMPLOYEE OF THE COMPANY AND IS GIVEN AS ADVANCES TO STAFF. FURTHER WE WOULD LIKE TO MENTION HERE THAT WE DO HA VE CAPITAL BALANCE AS PROPRIETARY CONCERN OF RS.10,18,611.49 AS ON 31. 03.01 IN BUSINESS AS SUCH WE REQUEST YOU LOOK INTO THE MATER ACCORDIN GLY. THE LD. ASSESSING OFFICER HELD THAT ASSESSEE FAILED TO ESTABLISH THE NEXUS BETWEEN INTEREST FREE ADVANCES GIVEN TO THE RELATED PERSONS. THE ASSESSING OFFICER RELIED ON THE FOLLOWING JUDGMENTS. (1) CIT VS. M.S. VENKATESWARAN 222 ITR 163 (MAD) (2) K. SOMASUNDARAM 7 BROTHERS VS. CIT 238 ITR 939 (MAD) (3) R. DALMIA VS. CIT 133 ITR 169 (DEL) 12. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) DELETED THE ADDITION ON THE GROUND THAT ASSESSEE HAS SUFFICIENT INTEREST FREE FUNDS TO EXTENT OF RS.72,00,000/-. SECONDLY, INTEREST RATE PAID BY THE ASSESSEE ON MONEY BORROWED FROM BANK IS 15%, WHEREAS ASSESSING OFFICE R HAS DISALLOWED INTEREST PAYMENT AT THE RATE OF RS 18%. THIRDLY, TH E ASSESSING OFFICER HAS DISALLOWED INTEREST FOR FULL YEAR WHEREAS INTEREST FREE ADVANCES WERE GIVEN IN ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 8 DIFFERENT PARTS OF THE YEAR SUCH AS JUNE, OCTOBER, DECEMBER, JANUARY AND FEBRUARY. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) RELIED ON THE FACT THAT INTEREST FREE ADVANCES WERE GIVEN TO THE FRIENDS OUT OF OWN INTEREST FREE FUNDS. 13. HE ALSO RELIED ON THE FOLLOWING JUDGMENTS. I. SHREE DIGVIJAY CEMENT CO. LTD. V/S CIT 138 ITR 4 5 (GUJ) II. CIT V/S GOPIKRISHNA MURALIDHAR, 47 ITR 469 (AP) III. CIT V/S. HOTEL SAVERA 239 ITR 975 (MAD) IV. GNFC V/S CIT 73 TTJ 787 (AHD). V. SHAAHIBAUG ENTERPRISES V/S CIT 49 TTJ 554 (AHD) AND VI. TORRENT FINANCIERS V/S CIT 73 TTJ 624 (AHD) VII. CIT V/S ALOK PAPER INDUSTRIES 138 ITR 729 VIII. R.D.JOSHI V/S CIT 251 ITR 332 (M.P) 14. WE HAVE HEARD LD. A.R. AND LD. DEPARTMENTAL REP RESENTATIVE. THE LD. DR SUBMITTED THAT ASSESSEE FAILED TO ESTABLISH NEXU S BETWEEN INTEREST FREE FUNDS AND INTEREST FREE ADVANCES GIVEN TO RELATED P ERSONS. ON THE OTHER HAND LD. A.R. SUBMITTED THAT NO SUCH DISALLOWANCES WERE MADE IN RESPECT OF ADVANCES TO FIRST 2 PERSONS VIZ., SHRI CHANDUBHAI P ATEL AND KOKILABEN TEJANI TO WHOM ADVANCES IN EARLIER YEAR WERE ALSO GIVEN. S ECONDLY, SHRI MANISHS TEJANI IS EMPLOYEE OF THE COMPANY AND ADVANCE IS GI VEN TO STAFF. THIRDLY, ASSESSEE HAS SUFFICIENT INTEREST FREE FUNDS AS STAT ED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). FOLLOWING ADD ITIONAL DECISIONS SUPPORT THE CASE OF THE ASSESSEE. TORRENT FIINANCIERS V. ACIT(2001) 73 TTJ 624 (AHD) CIT V. FREM HEAVY ENGG. WORKS (P) LTD. (2006) 285 I TR 554 (ALL) CIT V. BRITANNIA INDUSTRIES LTD. (2006) 289 UTR 525 (CAL) CIT V. RADICO KHAITAN LTD. (2005) 274 ITR 354 (ALL) CIT V. TIN BOX CO. ()20-03) 260 ITR 637 (DEL) MUNIAL SALES CORPORATION 298 ITR 298 (SC) 15. FINALLY LD. A.R. REFERRED TO THE DECISIONS OF H ONBLE BOMBAY HIGH COURT IN CIT VS. RELIANCE SECURITIES AND POWER LIMITED (2009 ) 313 ITR 340 BOMBAY FOR THE PROPOSITION THAT PRESUMPTION IS THAT INTERE ST FREE ADVANCES WERE GIVEN OUT OF INTEREST FREE FUNDS AVAILABLE WITH THE ASSES SEE. 16. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS JUSTIFIED IN DELETING THE ADDITION. I T IS BECAUSE INTEREST FREE ADVANCES TO KOKILABEN TEJANI & MAHESH S TEJANI WERE OLD BALANCES AND NO DISALLOWANCE IN THE PAST HAS BEEN MADE. SECONDLY, S HRI MANISH S TEJANI IS AN EMPLOYEE AND INTEREST FREE ADVANCES ARE GIVEN TO HIM FOR COMMERCIAL EXPEDIENCY. THIRDLY, LOAN TAKEN FROM BANK ARE APPA RENTLY USED FOR PURCHASING PLANT AND MACHINERY AS EXPLAINED BY LD. A.R. NOTWIT HSTANDING ASSESSEE HAS SUFFICIENT INTEREST FREE FUNDS AND ASSESSING OFFICE R IS EXPECTED TO SHOW THAT EXPLANATION FURNISHED BY THE ASSESSEE THAT IT IS ON LY OUT OF INTEREST FREE FUNDS FROM WHICH INTEREST FREE ADVANCES ARE GIVEN IS NOT CORRECT BY POINTING OUT THAT WHEN MONEY WAS GIVEN TO THE FRIENDLY PERSONS, THE A SSESSEE HAD BUILD UP ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 9 CASH BALANCES BY BORROWING INTEREST BEARING LOANS F ROM THE BANK OR FROM OTHER PERSONS AND HE NOT BORROWED FUNDS ON INTEREST , HE COULD NOT HAVE GIVEN SUCH ADVANCES TO FRIENDLY PERSONS WITHOUT INTEREST, AS HE WOULD NOT HAVE ADEQUATE CASH BALANCE AT THE POINT OF TIME WHEN THE MADE INTEREST FREE ADVANCES. THE ONUS IS NEVER FIXED, IT GOES ON SHIFT ING FROM ASSESSING OFFICER TO ASSESSEE AND FROM ASSESSEE TO ASSESSING OFFICER, DEPENDING UPON EVIDENCE AND EXPLANATION FURNISHED BY THE PARTIES. IF, THE ASSESSEE HAD FURNISHED AN EXPLANATION THAT IT HAS SUFFICIENT INT EREST FREE ADVANCES, THEN ASSESSEE HAS PRIMA-FACIE DISCHARGED THE ONUS AND IT IS NOW THE DUTY OF THE ASSESSING OFFICER TO SHOW THE ASSESSEE DID NOT HAVE SUFFICIENT INTEREST FREE FUND AVAILABLE AT THE POINT OF TIME WHEN HE HAD GIV EN INTEREST FREE ADVANCES. HE CAN DO SO BY CALLING DIRECTLY OR FROM ASSESSEE, COPIES OF BANK ACCOUNT SHOWING RECEIPT & TRANSFER OF THE FUNDS IN QUESTION . MERELY, REJECTING THE EXPLANATION OF THE ASSESSEE IS NOT SUFFICIENT. THE VIEW OF HONBLE BOMBAY HIGH COURT IN RELIANCE UTILITIES AND POWER LIMITED GIVES CLEAR INDICATION THAT IF ASSESSEE HAS SUFFICIENT INTEREST FREE FUNDS, THEN I T SHALL BE PRESUMED THAT INTEREST FREE ADVANCES WAS GIVEN OUT OF INTEREST FR EE FUNDS. SUCH PRESUMPTION IS REBUTTABLE AND THE ASSESSING OFFICER IS EXPECTED TO GIVE HIS FINDING ON THE AVAILABILITY OF CASH AT THE POINT OF TIME WHEN SUCH INTEREST FREE ADVANCES ARE GIVEN. IF HE CHOOSES NOT TO DO SO THEN HE LOSES THE RIGHT TO MAKE ADDITION. THIS IS EXACTLY WHAT HAS HAPPENED IN THIS CASE. THEREFOR E, ADDITION MADE BY THE ASSESSING OFFICER CANNOT BE JUSTIFIED. AS A RESULT THIS GROUND OF REVENUE IS REJECTED. 14. ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTATIV E SUBMITTED THAT THE FACTS OF THE PRESENT CASE ARE DISTINGUISHABLE FROM THE FACTS OF THE CASE RELIED UPON BY THE LD. AR. HE SUBMITTED IN THAT CASE, ADVANCES WERE GIVEN OUT OF THE FUNDS WHICH WERE NOT INTEREST BEARING BUT IN THIS PRESENT CASE, THE ASSE SSING OFFICER HAS CATEGORICALLY RETURNED A FINDING THAT THERE WAS INTEREST INCOME O F RS.1,74757/- IN PRECEDING YEAR AS PER THE PROFIT AND LOSS ACCOUNT. THE ASSESSEE-CO MPANY HAS NOT SHOWN ANY INTEREST INCOME FOR THIS FINANCIAL YEAR. CONSIDERIN G THE ABOVE FACT, THE ASSESSEE- COMPANY HAS NOT CHARGED INTEREST ON THOSE LOANS, AD VANCES AND DEPOSITS IN THE YEAR UNDER CONSIDERATION. ON THE OTHER HAND, THE ASSESSE E HAS PAID INTEREST TO THE BANK. IT WAS OBSERVED BY THE AO THAT THE ASSESSEE-COMPANY HAS GIVEN LOAN AND ADVANCE FROM ITS CASH CREDIT ACCOUNT WITH CANARA BANK. THER EFORE, THERE IS NO DOUBT THAT THE INTEREST FREE LOAN ADVANCE AND DEPOSIT WAS GIVEN TO THE PERSONS OUT OF INTEREST BEARING FUND DIRECT. IT WAS OBSERVED THAT NEXUS BET WEEN THOSE INTEREST FREE LOAN AND INTEREST BEARING FUNDS IS ESTABLISHED. LD. DR FURTH ER SUBMITTED THAT LD CIT(A) HAS DELETED THE DISALLOWANCE MERELY ON THE GROUND THAT IN THE EARLIER YEAR AO HAS NOT MADE ANY DISALLOWANCE OF INTEREST. LD. DR SUBMITTED THAT LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAS DIVERTED THE INTEREST BEARING FUND. ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 10 15. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PART IES, PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CONTENTION OF LD. DR IS TH AT LD. CIT(A) GROSSLY FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAS DIVERTED THE INTEREST BEARING FUNDS. ON THE CONTRARY, LD. AUTHORIZED REPRESENTATIVE FOR THE ASS ESSEE SUBMITTED THAT THIS ASPECT OF MATTER HAS BEEN EXAMINED BY LD. CIT(A). WE FIND THAT LD. CIT(A) HAS DEALT WITH THIS ISSUE IN PARA 8.1 TO 8.3 OF HIS ORDER, SAME AR E REPRODUCED HEREIN BELOW FOR THE SAKE OF CLARITY:- 8.1 IT WAS OBSERVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD CLAIMED DEED FOR BANK INTEREST OF RS. 1,79,409/-. THE ASSES SEE WAS ASKED TO FURNISH DETAILS OF FINANCIAL CHARGES DEBITED IN P & L ACCOU NT. NO DETAILS IN RESPECT OF INTEREST PAYMENT TO OTHERS HAS BEEN FURNISHED. IT W AS NOTICED THAT THE ASSESSEE HAS CASH CREDIT ACCOUNT WITH CANARA BANK A ND OBTAINED UNSECURED LOAN FROM M/S SUNRISE INDUSTRIAL CHEMICAL LTD., 20 TH CENTURY KINETIC FINANCE LTD AND UNITED PRECISION ENGINEERS. IT WAS NOTICED THAT NO INTEREST WAS GIVEN TO M/S SUNRISE INDUSTRIAL CHEMICALS LD. CREDITS IN THE NAME OF OTHER TWO PARTIES HAVE BEEN CONSIDERED AS UNEXPLAINED BY THE ASSESSING OFFICER AND INTEREST PAYMENT OF RS.1,79,409/- WAS DISALLOWED BY THE ASSESSING OFFICER. IN ADDITION TO THIS THE ASSESSEE HAS GIVEN INTEREST FR EE LOANS AND ADVANCES TO FOUR PARTIES AND SECURITY DEPOSIT WITH 20 TH CENTURY KINETIC TOTALING TO RS.10,68,320/-. THE ASSESSEE WAS ASKED TO FURNISH T HE DETAILS OF THE SAME. NO DETAILS LIKE LOAN/ADVANCE AND DEPOSIT, INTEREST CHARGED AND SOURCE OF LOAN/ADVANCE AND DEPOSIT HAVE BEEN FURNISHED. THE A SSESSING OFFICER NOTED FROM PROFIT AND LOSS ACCOUNT OF THE ASSESSEE THAT I T HAS NOT SHOWN INTEREST INCOME FOR THIS F.Y. HOWEVER THERE WAS INTEREST INC OME OF RS.1,74,757/- IN THE PROCEEDING YEAR. THE ASSESSING OFFICER HELD THA T INTEREST TO BANK IS PARTLY PAID ON THE AMOUNTS DIVERTED TO INTEREST FREE NON B USINESS LOANS/ADVANCES. ACCORDINGLY INTEREST OF RS.1,93,300/- WAS DISALLOWE D OUT OF INTEREST PAYMENT OF RS.2,99,939/- BEING 18% OF THE RS.10,68,320/- AS NOT HAVING BEEN INCURRED FOR BUSINESS PURPOSES. TOTAL ADDITION IN THIS COUNT COMES TO RS.3,71,709/.- 8.2 IT IS CONTENDED BY THE LD. COUNSEL THAT THE APP ELLANT COMPANY HAD TAKEN VEHICLE LOAN FROM 20 TH CENTURY KINETIC FINANCE CO. LTD IN THE YEAR 94-95 THE NECESSARY DOCUMENTS ARE SUBMITTED IN THE PAPER BOOK . THE INTEREST PAYABLE TO THE SAID COMPANY WAS FOR THE INTEREST ON THE VEH ICLE AND HENCE, THE SAME MAY BE ALLOWED. SINCE THE OTHER INTEREST EXPENSES P ERTAIN TO THE INTEREST PAID TO 20 TH CENTURY KINETIC FINANCE CO. LTD AND THE SAID VEHIC LE WAS USED FOR THE PURPOSE OF BUSINESS AND IN EARLIER YEARS THE INTERE ST ON SUCH LOAN WAS ALLOWED AND THEREFORE, IT IS PRAYED THAT INTEREST O F RS.1,79,409/- MAY BE ALLOWED. THE BALANCE AMOUNT OF DISALLOWANCE ON ADVA NCES AGGREGATING TO RS.10,68,320/-, ALL THESE ADVANCES WEE MEANT FOR TH E PURPOSE OF BUSINESS AND HENCE, SAME MAY BE ALLOWED. 8.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE COUNSE L AND FACTS OF THE CASE. AS REGARDS INTEREST AMOUNT OF RS.1,79,409/-, IT IS SUBMITTED BY THE APPELLANT THAT THE SAME IS INTEREST PAID TO 20 TH CENTURY KINETIC FINANCE LTD ON VEHICLE LOAN TAKEN IN F.Y. 1994-95. NECESSARY DOCUMENTS REL ATING TO THIS WERE ALREADY SUBMITTED, COPY OF WHICH WAS ALSO FILED IN PAPER BOOK. THUS IT IS CLEAR ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 11 THAT THE INTEREST PAYABLE IS FOR THE PURPOSE OF BUS INESS AND HENCE THE ADDITION MADE BY THE ASSESSING OFFICER IS DELETED. AS REGARDS DISALLOWANCE OF INTEREST OF RS.1,92,300 /- ON ACCOUNT OF INTEREST FREE ADVANCES, APPELLANT SUBMITTED THAT TH ESE ADVANCES WERE GIVEN TO MR JOY KUTTY, SRVASTAV CONSULTANCY, MOLLY KUTTY AND SHANTILAL PATEL. NO INTEREST WAS CHARGED FOR THESE ADVANCES SINCE THESE WERE CONSIDERED AS BUSINESS ADVANCES BY THE APPELLANT. THE ASSESSING O FFICER MADE THE DISALLOWANCE ON THE GROUND THAT BORROWED FUNDS MIGH T HAVE BEEN USED IN THESE ADVANCES AND THAT NO INTEREST INCOME IS DISCL OSED BY THE APPELLANT THIS YEAR WHEREAS INTEREST INCOME OF RS.1,74,757/- WAS R ECEIVED IN PRECEDING YEAR. IT IS NOT IN DISPUTE THAT THE ADVANCES GIVEN TO THESE PERSONS ARE INTEREST FREE AND THEREFORE THERE IS NO QUESTION OF SHOWING INTEREST INCOME ON SUCH ADVANCES. THEREFORE NON-DISCLOSURE INTEREST INCOME CANNOT BE THE BASIS FOR MAKING DISALLOWANCE OF INTEREST. IT IS SEEN THAT AD VANCE TO JOY KUTTY, MOLLY KUTTY AND OTHERS WERE GIVEN IN EARLIER YEARS ALSO O N WHICH NO DISALLOWANCE OF INTEREST WAS MADE. SINCE ASSESSING OFFICER HIMSELF CONSIDERED THESE ADVANCES NOT LIABLE FOR DISALLOWANCE IN EARLIER YEA R, NO DISALLOWANCE OF INTEREST CAN BE MADE DURING THE YEAR WITHOUT ANY NE W FACTS COMING TO THE LIGHT. ACCORDINGLY THE ADDITION MADE BY THE ASSESS ING OFFICER IS DELETED. IT IS NOT REBUTTED THAT IN THE EARLIER YEAR NO DISA LLOWANCE WAS MADE IN RESPECT OF SUCH ADVANCES MADE TO AFOREMENTIONED PERSONS. IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS CHARGED ANY INTEREST ON SUCH ADVANCES GIVEN TO THE AFOREMENTIONED PERSON AND SAME ARE NOT DECLARED IN RETURN OF INCOM E. WE FIND THAT THE ASSESSING OFFICER HAS DISALLOWED INTEREST ON THIS BASIS THAT THE ADVANCES WERE GIVEN OUT OF INTEREST BEARING FUND FOR NON BUSINESS PURPOSE AND THE ASSESSEE HAS CLAIMED INTEREST EXPENSES ON BORROWED CAPITAL. HOWEVER, LD. CIT(A) HAS GIVEN A FINDING THAT THESE ADVANCES ARE BUSINESS ADVANCES AND LEARNED DE PARTMENTAL REPRESENTATIVE OF REVENUE COULD NOT CONTROVERT THIS FINDING. HENCE , THIS GROUND IS REJECTED. 16. IN THE NET RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. WE TAKE UP ITA NO.726/AHD.2009 (A.Y. 01-02) 17. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE CIT(A) HAS ERRED IN DELETING THE ADDITION OF G.P. OF RS.12 LACS, OVERLO OKING THE FACT THAT NO PROPER DETAILS WERE FURNISHED DURING THE COURSE OF ASSESSM ENT PROCEEDINGS BEFORE THE ASSESSING OFFICER IN RESPECT OF CLOSING STOCK O F SEMI-FINISHED GOODS AND CONSUMPTION OF RAW MATERIALS. MOREOVER, THE MANUFAC TURING EXPENSES WERE INFLATED BY THE ASSESSEE BY PASSING JOURNAL ENTRIES . ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 12 2. THE CIT(A) ERRED ON THE FACTS AND IN LAW IN DIRE CTING THE ASSESSING OFFICER TO ALLOW DEED U/S. 80IA OVERLOOKING THE FACT THAT NO S UCH CLAIM WAS MADE BY ASSESSEE IN ORIGINAL RETURN OF INCOME AND OVERLOOKI NG THE RATIO LAID DOWN BY THE APEX COURT IN THE CASE OF GOETZ (INDIA) LD. 284 ITR 323 (SC) THAT THE ASSESSEE CAN NOT CIRCUMVENT THE REQUIREMENT OF FILI NG RETURN OF INCOME BY MERELY FILING A LETTER REQUESTING FOR RELIEF. 3. THE CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE INTEREST DISALLOWANCE OF RS.1,91,848, OVERLOOKING THE FACT TAT THE ASSESSEE HAD DIVERTED THE INTEREST BEARING FUNDS FOR THE DIRECTORS AND ASSOCIATE CONCE RNS. 18. FIRST GROUND RAISED BY REVENUE IS WITH REGARD T O DELETION OF ADDITION OF RS.12 LAKH MADE ON ACCOUNT OF GROSS PROFIT (GP FOR SHORT) . LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGUED THAT ORDER PASSED BY LD. CIT(A) IS ERRONEOUS AND UNJUSTIFIED. HE SUBMITTED THAT LD. CIT(A) HAS NOT C ONSIDERED THE FACT THAT ASSESSEE FAILED TO PRODUCE RELEVANT SUPPORTING EVIDENCES. ON THE CONTRARY, LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT ORDE R OF LD. CIT(A) IS JUSTIFIED AND THERE WAS NO OCCASION TO MAKE ADDITION ON ACCOUNT O F GP DURING THE YEAR UNDER CONSIDERATION AND GP AS DECLARED BY THE ASSESSEE WA S HIGHER THAN DECLARED IN EARLIER YEARS. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER IN THIS CASE HAS REJE CTED THE BOOKS OF ACCOUNT OF THE ASSESSEE BY OBSERVING CERTAIN GLARING DEFECTS. THE AO IN PARA 3 TO 3.3 OF HIS ASSESSMENT ORDER SUMMARIZED THE DEFECTS, SAME ARE R EPRODUCED AS UNDER:- 3.1 THE ASSESSEE COMPANY IS ENGAGED IN DESIGN MANU FACTURING, SUPPLY AND COMMISSIONING OF VARIOUS ANTI CORROSIVE PROCESS EQU IPMENT MADE OF FIBE4RR GLASS REINFORCED PLASTIC (FRG) SUCH AS CHEMICAL EQU IPMENT STORAGE TANKS, PIPES AND FITTINGS ETC., IN ORDER TO VERIFY THE BOO K RESULTS THE ASSESSEE COMPANY, IT WAS ASKED TO FURNISH FOLLOWING DETAILS VIDE NOTICE U/S. 142(1) OF THE ACT. (7) PLEASE FURNISH DETAILS OF PRODUCTION AND CONSUM PTION IN CASE OF RAW MATERIAL, FINISHED GOODS IN THE FOLLOWING FORMS. FI GURES ARE TO BE SUPPLIED FOR EACH MONTH IN QUANTITY AND VALUE. I) RAW MATERIAL: OPENING STOCK, MONTH-WISE PURCHASE AND CONSUMPTION AND CLOSING STOCK II) FINISHED GOODS, WORK IN PROGRESS AND BYPRODUCT OPENING STOCK, MONTH-WISE PRODUCTION AND SALE, CLOS ING STOCK AND WORK IN PROGRESS. ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 13 (8) PLEASE FURNISH IN BRIEF THE MANUFACTURING PROCE SS EMPLOYED BY YOU AND PERCENTAGE OF YIELD WHICH IS THEORETICALLY ACHI EVABLE AND THE YIELD FOR LAST THREE YEARS ACHIEVED BY THE COMPANY. IF TH ERE IS A FALL IN REASON THEREOF. (9) COMPARATIVE STATEMENT SHOWING GROSS PROFIT WORK ING AND NET PROFIT WORKING FOR CURRENT YEAR AND PRECEDING TWO YEARS. I N CASE OF FALL, EXPLANATION THEREOF. 3.2 IN RESPONSE, THE ASSESSEE-COMPANY HAS FURNISHED QUANTITY DETAILS OF RAW MATERIAL AND FINISHED GOODS. NO WORK IN PROGRESS ST OCK REGISTER WAS PRODUCED FOR VERIFICATION NOR MONTHLY DETAILS FOR ITS STOCK OF WORK IN PROGRESS WAS FURNISHED THOUGH THE SAME WERE CALLED FOR. IN ABSEN CE OF COMPLETE RECORD OF QUANTITY, VERIFICATION OF THE BOOKS OF ACCOUNT REMA IN INCOMPLETE. 3.3 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E ASSESSEE COMPANY WAS ASKED TO FURNISH DETAILS OF SECURITY GIVEN FOR OBTAINING CREDIT FACILITY FROM ITS BANKER. IN THIS REGARD, THE ASSESSEE COMPANY HA D SUBMITTED A COPY OF STOCK STATEMENT FURNISHED TO ITS BANKER GIVING DETA ILS OF GOODS PLEDGED WITH ITS BANKER I.E. CLOSING STOCK OF RAW MATERIAL AS WELL A S SEMI FINISHED GOODS AS ON 31-3-2001. IN ITS BOOKS OF ACCOUNTS AS WELL AS IN T HE STOCK STATEMENTS (BANK) NO CLOSING STOCK OF FINISHED GOODS HAS BEEN SHOWN. AS PER BALANCED SHEET, THE CLOSING STOCK OF RAW MATERIAL AND SEMI FINISHED GOODS WAS OF RS.52,70,876/- AND RS.1,12,40,000/- RESPECTIVELY, W HEREAS, AS PER THE STOCK STATEMENT SUBMITTED TO ITS BANKER, THE STOCK OF SAM E WERE SHOWN AT RS.45,39,000/- AND RS.54,40,000/- RESPECTIVELY. THE RE WERE NOT ONLY DIFFERENCE IN VALUE BUT IN QUANTITY ALSO. THE DIFFE RENCES ARE DISCUSSED IN SUBSEQUENT PARA. THE STOCK STATEMENT SUBMITTED TO B ANKER WAS DULY SIGNED BY THE DIRECTOR UNDER THE SEAL OF ASSESSEE COMPANY. THEREFORE, THE CONTENTS OF STOCK STATEMENT SUBMITTED TO BANK CANNOT BE KEPT ASIDE WITHOUT TAKING INTO CONSIDERATION. THE DIFFERENCES OBSERVED IN BOTH THE STOCK STATEMENTS WERE BROUGHT TO THE NOTICE OF THE ASSESSEE COMPANY VIDE ORDER SHEET ENTRY DATED 2-1-2004 AND IT WAS ASKED TO EXPLAIN THE SAME. THE ASSESSEE COMPANY HAS CHOSEN NOT TO EXPLAIN ANYTHING. LD. CIT(A) HOWEVER, JUSTIFIED THE ACTION OF THE AS SESSING OFFICER IN RESPECT OF REJECTION OF BOOKS OF ACCOUNT BUT DELETED THE ADDIT ION MADE ON ACCOUNT OF GP. LD. CIT(A) IN HIS FINDING WHICH IS GIVING IN PARA-3.3 O F HIS ORDER, WHICH REPRODUCED AS UNDER:- 3.3 I HAVE CONSIDERED THE SUBMISSIONS OF LD. COUNS EL AND FACTS OF THE CASE. FROM THE CHART OF GROSS PROFIT SUBMITTED BY THE APP ELLANT IT IS CLEAR THAT THE GROSS PROFIT SHOWN DURING THE YEAR IS MORE THAN 50% AND HIGHEST IN LAST SEVERAL YEARS. AGAINST THE SALE OF RS.1,46,32,554/- , GROSS PROFIT SHOWN AT RS.75,95,529/-. THE REJECTION OF BOOKS OF ACCOUNT M AY BE JUSTIFIED ON ACCOUNT OF CERTAIN DEFECTS NOTICED BY THE ASSESSING OFFICER . HOWEVER AFTER REJECTING THE BOOKS, THE GROSS PROFIT HAS TO BE ESTIMATED CON SIDERING THE EARLIER YEARS GROSS PROFIT OR GROSS PROFIT OF OTHER ASSESSEES IN THE SIMILAR BUSINESS. THE ASSESSING OFFICER HAS NOT GIVEN ANY COMPARATIVE FIG URE WHILE INCREASING THE PROFIT BY RS.12 LACS. AS AGAINST THIS, THE APPELLAN T SUBMITTED COMPARATIVE ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 14 CHART SHOWING CLEARLY THAT THE GROSS PROFIT DURING THE YEAR IS THE HIGHEST. SINCE GROSS PROFIT DURING THE YEAR IS THE HIGHEST IN LAST SIX YEARS, I NOT SEE ANY BASIS FOR FURTHER INCREASING THE GROSS PROFIT. CONSIDERIN G THIS, THE ADDITION MADE BY THE ASSESSING OFFICER IS DELETED. 20. WE FIND THAT THE ASSESSING OFFICER AFTER RECOR DING THE DEFECTS ESTIMATED THE SUPPRESSED PROFIT ON THE SURMISES WITHOUT EXPLAININ G HOW THE ADDITION OF RS. 12 LAKH IS JUSTIFIED. ON THE CONTRARY, LD.CIT(A) HAS BASED HIS FINDING ON THE BASIS OF THE COMPARATIVE CHART SUBMITTED BY THE ASSESSEE IN RESP ECT OF RATE OF GP. WE DO NOT FIND ANY FAULT INTO THE OBSERVATION OF THE LD. CIT( A) THAT AFTER REJECTING THE BOOKS OF ACCOUNT, THE GP HAS TO BE ESTIMATED CONSIDERING THE EARLIER YEARS GP OR GP OF THE OTHER ASSESSEE IN THE SIMILAR BUSINESS. THE AO HAS NOT GIVEN ANY COMPARATIVE FIGURE WHILE INCREASING THE PROFIT OF RS.12 LAKH. THERE IS NO FINDING GIVEN BY THE AO AS TO HOW, THIS FIGURE OF RS.12 LAKH HAS BEEN ARRIVED AT AS SUPPRESSED GP. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY INFIRMITY INTO THE O RDER PASSED BY LD. CIT(A) AND THIS GROUND OF REVENUES APPEAL IS DISMISSED. 21. THE NEXT GROUND IN THIS APPEAL OF THE REVENUE I S WITH REGARD TO DEDUCTION U/S. 80IA OF THE ACT. LD. DR SUBMITTED THAT IN THIS CASE , THE ASSESSEE HAS NOT CLAIMED DEDUCTION IN ORIGINAL RETURN OF INCOME. HOWEVER, DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE REQUESTED TO ALLOW DEDUCT ION U/S. 80IA OF THE ACT BUT SAME WAS DECLINED BY THE ASSESSING OFFICER. HE SUBM ITTED THAT LD. CIT(A) WHILE ALLOWING THIS ISSUE FAILED TO TAKE NOTE OF THE RATI O HAS LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. V. CIT (2006) 284 ITR 323 (SC). ON THE CONTRARY, LD. AUTHORIZED REPRESENTATIVE FOR THE ASS ESSEE SUBMITTED THAT IN THE EARLIER YEARS, THE CLAIM OF THE ASSESSEE WAS ALLOWED. LD. A .R. SUBMITTED THAT IN THE CASE OF GOETZE (INDIA) LTD. V. CIT (2006) 284 ITR 323 (SC)(SUPRA), THE ISSUE BEFORE TH E HON.BLE APEX COURT WAS WITH REGARD TO POWER OF TH E ASSESSING OFFICER BUT NOT OF THE APPELLATE AUTHORITY. 22. WE HAVE HEARD THE RIVAL CONTENTION, PERUSED THE MATERIALS AND JUDGMENT CITED BY THE PARTIES. ADMITTEDLY, IN THIS CASE, THE ASSES SEE HAS NOT MADE ANY CLAIM IN RESPECT OF DEDUCTION U/S. 80IA OF THE ACT IN ITS OR IGINAL RETURN. IT WAS ONLY DURING THE ASSESSMENT PROCEEDINGS THAT THE ASSESSEE REQUESTED FOR ALLOWING DEDUCTION U/S ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 15 80IA OF THE ACT. WE FIND THAT LD. CIT(A) IN HIS ORD ER HAS DEALT THIS ISSUE IN PARA-5.2 AND 5.3, THE SAME IS REPRODUCED HEREINBELOW:- 5.2 IT IS CONTENDED BY THE LD. COUNSEL THAT THE AS SESSEE IS ENTITLED TO DEDUCTION U/S. 80IA SINCE IT FULFILS THE CONDITIONS LAID DOWN UNDER THE SAID PROVISIONS. IT IS ALSO SUBMITTED THAT THE IDENTICAL SITUATION WAS PREVAILING IN CASE OF APPELLANT FOR A.Y. 96-97 AND THE CIT(A) HAS ALLOWED THE CLAIM OF THE. 5.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE COUNSE L AND FACTS OF THE CASE. BY APPEAL ORDER DATED 30-10-2007 MY LD. PREDECESSOR IN THE APPELLANTS OWN CASE IN A.Y. 1996-97 ALLOWED THE APPELLANTS GROUND IN IDENTICAL FACTS. THE RELEVANT PART OF THE ORDER IS QUOTED BELOW: IN APPEAL, AN ADDITIONAL GROUND HAS BEEN RAISED TO THE EFFECT THAT THE A.O MAY BE DIRECTED ALLOW DEDUCTION U/S. 80IA, IN C ASE THE RETURNED LOSS IS FINALLY DETERMINED AT A POSITIVE FIGURE OF PROFIT. THE CLAIM OF THE ASSESSEE IS REASONABLE AND THE A.O IS DIRECTED ALLO W THE RELIEF U/S/. 80IA, AFTER VERIFICATION RESPECTFULLY FOLLOWING THE DECISION OF MY LD. PREDE CESSOR REFERRED ABOVE, THE ASSESSING OFFICER DIRECTED TO ALLOW DEDUCTION U/S 8 0IA AFTER VERIFICATION. IT IS EVIDENT FROM THE ABOVE THAT THE LD. CIT(A) HA S FOLLOWED THE DECISION OF HIS PREDECESSOR FOR A.Y. 1996-97. WE FIND THAT HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA) HAD CLARIFIED THIS ISSUE. IT WAS CLARIFIED BY THE HONBLE APEX COURT IN THAT CASE THAT THE ISSUE WAS LIMITED TO THE POWE R OF THE ASSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POWER OF INCOME-TAX APPELLA TE TRIBUNAL U/S 254 OF THE ACT. IN VIEW OF THE FACT THAT, THE JUDGMENT AS RELIED BY THE REVENUE WAS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY BUT NOT TO THE POW ER OF THE APPELLATE AUTHORITY IN OUR CONSIDERED OPINION, THE LD. CIT(A) CAN ENTERTAI N SUCH CLAIM. THEREFORE, THIS GROUND OF REVENUES APPEAL IS REJECTED. 23. THE NEXT EFFECTIVE GROUND AS RAISED BY THE REV ENUE IS WITH REGARD TO DELETION OF INTEREST DISALLOWANCE OF RS.1,91,848/-. THE FACT S ARE IDENTICAL AS IN REVENUES APPEAL IN ITA NO.725/AHD/2009 SINCE WE HAVE ALREADY DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE IN THAT YEAR, IN THE PRESENT YEAR A LSO, THIS GROUND OF REVENUES APPEAL IS REJECTED. 24. IN THE RESULT, REVENUES APPEAL IS DISMISSED. WE TAKE UP ITA NO.727/AHD/2009 (A.Y.02-03) 25. REVENUE HAS RAISED SINGLE GROUND OF APPEAL:- ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 16 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO SCALE DOWN THE G ROSS PROFIT FROM 1,97,43,112 TO 20,00000 OVERLOOKING THE FACT THAT NO DETAILS OF WORK IN PROGRESS, CONSUMPTION OF RAW MATERIAL, STOCK POSITION WERE FU RNISHED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESS ING OFFICER. 26. THE FACTS OF THE CASE ARE THAT WITH REGARD TO S CALING DOWN OF THE GP OF RS.1,97,43,112 TO RS.20 LAKH BY THE LD. CIT(A). LD. DR SUBMITTED THAT IN THIS CASE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE BY OBSERVING THAT ASSESSEE-COMPANY HAS NOT MAINTAINED DAY-TO-DAY STOC K, RAW MATERIALS, WORK-IN- PROGRESS, CLOSING STOCK, HAS NOT GIVEN DETAILS OF C LOSING STOCK SEMI-FINISHED PRODUCTION AND INVESTMENT ETC., IN SUCH SITUATION, AO WAS JUSTIFIED IN REJECTION OF BOOKS OF ACCOUNT AND MAKING ADDITION OF GP OF RS.1, 00,83,036/-. HE SUBMITTED THAT LD. CIT(A) HAS REDUCED THE ADDITION WITHOUT ANY COG ENT REASON. ON THE CONTRARY, LD. AR SUBMITTED THAT LD. CIT(A) HAS CONSIDERED ALL THE ASPECTS OF THE FACTS AND ORDER PASSED IS JUSTIFIED. LD. AR SUBMITTED THAT IN CASE THIS TRIBUNAL IS NOT SATISFIED WITH THE REASONING OF LD. CIT(A), THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION. 27. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIALS AVAILABLE ON RECORD. WE FIND THAT IN ASSESSMENT ORDER, AO HAS OB SERVED THAT ASSESSEE-COMPANY HAS NOT MAINTAINED DAY-TO-DAY STOCK RECORDS, RAW MA TERIALS, WORK-IN-PROGRESS. IT WAS ALSO OBSERVED THAT ASSESSEE-COMPANY HAS NOT GIVEN D ETAILS OF CLOSING STOCK OF SEMI- FINISHED GOODS, CONSUMPTION OF RAW MATERIAL PRODUCT ION AND YIELD ETC., IT WAS OBSERVED THAT PURCHASES OF THE ASSESSEE-COMPANY WAS UNVERIFIED. THE AO OBSERVED THAT ASSESSEE-COMPANY HAS SHOWN DIFFERENT STOCK POSITION AT THE SAME POINT OF TIME AT THE DIFFERENT TIME DURING THE ASSE SSMENT PROCEEDINGS. IT WAS OBSERVED THAT QUANTITATIVE DETAILS OF PRODUCTION AN D STOCK IN THE BOOKS OF ACCOUNT OF THE ASSESSEE WERE NOT RELIABLE AND VERIFIABLE. THE AO HAD REJECTED THE BOOKS OF ACCOUNT BY OBSERVING THAT GP RATIO DECLARED BY THE ASSESSEE AT 19.57%, HOWEVER, FOR THE A.Y 1997-98, THE GP RATIO WAS ADOPTED @ 48. 28% AFTER REJECTING THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE AO AFTER OBSERVING THE FACTORS IN REDUCTION OF GP RATIO OBSERVED ALL THE FACTORS CANNOT BE JUSTIFIED SHARP REDUCTION IN GP RATIO TO 19.57% OF THIS YEAR ALSO. WE FIND THAT LD. CIT(A) IN HIS ORD ER OBSERVED THAT ASSESSEE ALSO SUBMITTED THE GP CHART AS PER WHICH GP RANGE FROM 1 9.30% IN A.Y. 1999-00, ITA NO.725-727 & 772/AHD/2009 A.YS.97-98 TO 98-99 &01 -02 TO 02-03 ACIT, CIR-4 BRD V. M/S. SUNRISE POLYMERS & INDS. (I) L TD. PAGE 17 19.69% IN A.Y 1996-97, 26.28% IN A.Y. 1998-99, 33.8 0% IN A.Y. 2000-01 AND AVERAGE GP FOR A.YS. 1996-97 TO 2002-03 WORKS OUT T O 29.01%. SINCE THE LD. CIT(A) HAS NOT GIVEN ANY FINDING AS ON WHAT BASIS HE HAS R EDUCED ON THE GP ADDITION TO RS.20 LAKH AND HOW MUCH G.P. RATE IS ADOPTED FOR TH IS YEAR. HOWEVER, WE FIND THAT AVERAGE GP AS SUBMITTED BY ASSESSEE FROM A.YS 1996- 97 TO 2002-03 WORKED OUT TO 29.01%. THE AO HAS ADOPTED GP RATIO @ 40%. HOWEVER, LD CIT(A) IN HIS DECISION HAS NOT GIVEN ANY FINDING AS WHAT RATE GP IS ADOPTE D. IN VIEW OF THIS, THIS ISSUE IS REMITTED BACK TO THE FILE OF LD CIT(A) FOR FRESH DE CISION BY PASSING A REASONED AND SPEAKING ORDER AFTER ALLOWS ADEQUATE HEARING TO BOT H SIDES. 28. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 29. IN COMBINE RESULT, REVENUES APPEALS ITA NO.772 & 725/AHD/2009 ARE PARTLY ALLOWED; ITA NO.726/AHD/2009 IS DISMISSED AN D ITA NO.727/AHD/2009 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. 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