Uniphos Envirotronic Pvt. Ltd., Valsad V. The Addl.CIT, OSD Range, Valsad

ITA 947/AHD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9251 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 12-01-2017
• Assessment Year: misc
• Appeal Filed On: 15-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Rectification of order; Double taxation relief; Rule of consistency
• Section: 206AA; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD I BENCH BEFORE: R. P. TOLANI , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER UNIPHOS ENVIRONTRONIC PVT. LTD. ,11, GIDC ESTATE, VAPI, VALSAD, GUJARAT - 396195 PAN:AABCU0216A (APPELLANT) VS THE DCIT CPC - TDS, GHAZIABAD (RESPONDENT) REVENUE BY : S H RI DILEEP KUMAR , SR. D . R. ASSESSE E BY: S H RI S.N. SOPARKAR , A.R. DATE OF HEARING : 12 - 01 - 2 017 DATE OF PRONOUNCEMENT : 06 - 02 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2012 - 13 , AR IS ES FROM ORDER OF THE CIT(A), VALSAD DATED 16 - 02 - 2016 IN APPEAL NO. CIT(A)/VLS/168/14 - 15 , IN PROCEEDINGS UNDER SEC TION 200A OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 947/ A HD/20 16 A SSESSME NT YEAR 2013 - 14 I.T.A NO. 947 /AHD/20 16 A.Y. 2013 - 14 PAGE NO UNI PHOS ENVIRONTRONICS PVT. LTD VS . DCIT(TDS) 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE DCIT, CPC, TDS PASSED UNDER SECTION 200AOF THE ACT BY RELYING ON THE PRESS RELEASE NO.402/92/2006 - MC(04 OF 2010) DATED 20.01.2010 ISSUED BY CBDT R EQUIRING THAT ALL DEDUCTORS WHO ARE LIABLE TO DEDUCT TAX ARE REQUIRED TO DEDUCT TAX AT A HIGHER RATE IN ALL TRANSACTIONS NOT HAVING PAN OF THE DEDUCTEE ON OR AFTER 1 ST APRIL 2010. 2. IN DOING SO, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN THE FOLLOWING RESPECTS: 2.1 IN NOT APPRECIATING THE FACT THAT THE APPELLANT PAID THE CONSIDERATION TO KRACHT + STROHE RECHTSANWALTE KOLN AUER GMBH ('KSR') A GERMAN LAW FIRM AGAINST LEGAL SERVICES AND DEDUCTED TAX @ 10% AS FEE FOR TECHNICAL SERVICES UNDER ARTICLE 12 OF THE TAX TREATY FOLLOWING THE BENEFICIAL PROVISIONS CONTAINED IN SECTION 90(2) OF THE ACT. 2.2 IN NOT APPRECIATING THE FACT THAT SECTION 206AA OF THE ACT IS NOT CHARGING SECTION AND PROVISIONS OF CHAPTER XVII - B GOVERNING TDS ARE NOT SUBORDINA TE TO SECTION 90(2) OF THE ACT. ALL THE GROUNDS OF APPEAL ARE INTERCONNECTED AND THEY ARE DECIDED TOGETHER AS UNDER: - 3. IN THIS CASE DURING THE YEAR THE ASSESSEE HA S RECEIVED LEGAL SERVICES FROM KRACHT+STROHE RECHTSANWALTE KOLN, A LAW FIRM HAVING PRIN CIPAL PLACE OF BUSINESS AT GERMANY. THE ASSESSEE HAD REMITTED A SUM AMOUNTING EURO 10 , 395/ - EQUIVALENT TO INDIAN RS. 7 ,3 8 , 045/ - ON DECEMBER, 2012. IN ACCORDANCE WITH ARTICL E 12 FEE FOR TECHNICAL SERVICES OF DTAA BETWEEN INDIA AND GERMANY, T HE ASSESSEE HA D DEDUCTED TDS @ 10% TO THE AMOUNT OF RS. 73 , 804/ - AND DEPOS IT ED THE SAME ON 5 TH JANUARY, 2013 . SUBSEQUENTLY, T HE DCIT CPC TDS , I.T.A NO. 947 /AHD/20 16 A.Y. 2013 - 14 PAGE NO UNI PHOS ENVIRONTRONICS PVT. LTD VS . DCIT(TDS) 3 VAISHALI, GAJIABAD RAISED A DEMAND OF RS. 90 , 750/ - INCLUDING IN TEREST OF RS. 12512/ - ON A/C. ON SHORT DEDUCTION OF TAX BY THE A SSESSEE. THE DCIT CPC TDS, VAISHALI, GAJIABAD PASSED ORDER U/S154 OF THE ACT ON 01.03.2014 AND DETERMINED THE ABOVE STATED DEMAND. THE ASSESSING OFFICER STATED THAT THE ASSESSEE HA S DEDUCTED TDS AT LOWER RATE OF 10% INSTEAD OF 20.6%. 4. AGGRIEVED AGAIN ST THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS REJECTED THE APPEAL OF THE ASSESSEE STATING THAT THE FACT IN THE CASE OF THE ASSESSEE WAS IDENTICAL TO THE OWN CASE OF THE ASSESSEE DECIDED IN APPE AL NO. CIT(A)/VLS/2050/2013 VIDE ORDER DATED 28 TH MAY, 2015 WHICH WAS DECIDED AGAINST THE ASSESSEE . THE DECISION OF THE LD. CIT(A) IS REPRODUCED AS UNDER: - 6. DECISION: I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AS CONTAINED IN THE ORDER - PASS ED BY THE ASSESSING OFFICER AS WELL AS THE WRITTEN SUBMISSION MADE BY AR OF THE APPELLANT D URING THE APPELLATE PROCEEDINGS. ORIGINALLY THE DCIT CPC - TDS PROCESSED THE TDS STATEMENT OF THE APPELLANT AND CREATED A DEMAND OF RS.90,750/ - INCLUDING INTEREST OF R S.12,512/ - FOR SHORT DEDUCTION OF TDS @10% INSTEAD OF 20.6% APPLICABLE IN THIS CASE AND IS SUED AN INTIMATION DT:01.03.201 3. THE APPELLANT PREFERRED AN RECTIFICATION APPLICATION U/S 154 OF THE ACT OF THIS INTIMATION/ORDER DT: 01.03.2013. AFTER CONSIDERING T HE RECTIFICATION APPLICATION, THE DCIT CPC - TDS PASSED AN RECTIFICATION ORDER DT: 01.03.2014 CREATING A TOTAL DEMAND OF RS.90750/ - INCLUDING INTEREST OF RS.12,512/ - . THE APPELLANT PREFERRED AN APPEAL AGAINST THE INTIMATION DT: 01.03.2013 AS WELL AS RECTIFICA TION ORDER DT: 01.03.2014. IN THE PRESENT APPEAL THE CORE FACTS ARE THE SAME AS WERE PRESENT IN THE APPELLANT'S OWN CASE IN APPEAL NO. CIT(A)/VLS/250/13 - 14 VIDE ORDER DT:28.05.2015, WHICH WAS DECIDED AGAINST THE APPELLANT BY FOLLOWING AN EARLIER DECISION O N I.T.A NO. 947 /AHD/20 16 A.Y. 2013 - 14 PAGE NO UNI PHOS ENVIRONTRONICS PVT. LTD VS . DCIT(TDS) 4 THE SAME TAKEN IN ITA NO.CIT(A)/VLS/215/13 - 14 WHICH IS ENUMERATED BELOW: 'THIS IS A CASE OF SHORT DEDUCTION OF TDS. DURING THE YEAR THE APPELLANT REMITTED AS PER TERMS OF AGREEMENT AN AMOUNT OF EURO 5 LAKHS EQUIVALENT TO INDIAN RS.4,23,00,000/ - (NET OF T AX) TO A GERMAN LIMITED LIABILITY COMPANY M/S MSA AUER GMBH(MSA), TOWARDS PURCHASE OF TECHNICAL KNOW WHICH ACCORDING TO THE APPELLANT REPRESENTS PURCHASE OF CAPITAL ASSET NOT LIABLE TO DEDUCTION OF TAX AT SOURCE. AS PER APPELLANT MSA DOES NOT HAVE ANY PERM ANENT ESTABLISHMENT IN INDIA AND THEREFORE AS PER ARTICLE 7 OF DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA), THE INCOME FROM AFORESAID SALE OF TECHNICAL KNOWHOW IS NOT CHARGEABLE TO TAX IN INDIA. FURTHER IT WAS SUBMITTED THAT ALTHOUGH THE TRANSACTION IS NOT LIABLE TO TDS YET THE APPELLANT HAS AS AN ABUNDANT PRECAUTION DEDUCTED TDS @10% AGAINST THE ALLEGED RATE OF 20%. DCIT CPC - TDS VIDE INTIMATION DT: 01.12.2013 U/S200A OF THE ACT TREATED THE PAYMENT AS A CASE OF SHORT DEDUCTION. SECTION 206AA PRESCRIBES THAT IF THE RECIPIENT OF ANY SUM OR INCOME FAILS TO FURNISH HIS PAN TO THE PERSON RESPONSIBLE FOR DEDUCTION OF TAX AT SOURCE, THE TAX IS REQUIRED TO BE DEDUCTED @ 20%. IN ADDITION THE APPELLANT ALSO MADE THE SUBMISSION THAT SECTION 90(2) OF THE ACT GIVES THE TA X PAYER AN OPTION TO SELECT THE APPLICABILITY OF PROVISIONS OF TAX TREATY OR INCOME TAX ACT WHICHEVER IS BENEFICIARY TO HIM. IN VIEW OF THIS THE APPELLANT CHOOSE DTAA. IN ADDITION IT WAS ALSO SUBMITTED THAT SECTION 90(2) OF THE ACT I.E. DTAA OVERRIDES SECT ION 206AA IN CASE OF PAYMENTS/REMITTANCES TO NON - RESIDENTS. FOR THIS RELIANCE WAS PLACED ON THE JUDICIAL DECISION OF HON'BLE ITAT PUNE IN THE CASE OF DDFT PUNE V/S SERUM INSTITUTE OF INDIA LIMITED. IT WAS ALSO SUBMITTED THAT PROVISIONS OF SECTION 139A(8) O F THE ACT R.W. RULE 114C(1) OF IT RULES, 1962 PRESCRIBED THAT NON - RESIDENTS ARE NOT REQUIRED TO APPLY FOR PAN. SECTION 206AA PRESCRIBES THAT THE RECIPIENT SHALL FURNISH THE PAN AND SUCH FURNISHING WOULD BE POSSIBLE ONLY WHERE THE RECIPIENT REQUIRED TO OBTA IN - PAN. THUS, WHERE THE NON - RESIDENTS ARE NOT OBLIGED TO OBTAIN A PAN, THE REQUIREMENT OF FURNISHING THE SAME VIEW OF SECTION 206AA OF THE ACT DOES NOT ARISE. IN THE APPELLANT'S CASE MSA IS A NON RESIDENT AND THEREFORE THE SUBMISSIONS OF PAN TO THE APPELL ANT AND CONSEQUENT APPLICABILITY OF SECTION 206AA DOES NOT ARISE. I HAVE GIVEN MY CAREFUL THOUGHTS TO THE SUBMISSIONS OF THE APPELLANT ALONG WITH THE DECISIONS RELIED UPON AND DO NOT AGREE WITH HIM. ON THE ISSUE OF DEDUCTION OF TDS AT HIGHER RATE EVEN IN C ASE OF NON - RESIDENTS, CBDT HAS ISSUED A PRESS RELEASE NO.402/92/2006 - I.T.A NO. 947 /AHD/20 16 A.Y. 2013 - 14 PAGE NO UNI PHOS ENVIRONTRONICS PVT. LTD VS . DCIT(TDS) 5 MC(04 OF 2010) DT:20.01.2010. THE RELEVANT PORTION OF THIS PRESS RELEASE IS GIVEN BELOW: 'A NEW PROVISION RELATING TO TAX DEDUCTION AT SOURCE (TDS) UNDER THE INCOME TAX ACT, 1961 WILL BEC OME APPLICABLE WITH EFFECT FROM 1 ST APRIL, 2010. TAX AT HIGHER OF THE PRESCRIBED RATE OR 20% WILL BE DEDUCTED ON ALL TRANSACTIONS LIABLE TO TDS, WHERE THE PERMANENT ACCOUNT NUMBER (PAN) OF THE DEDUCTEE IS NOT AVAILABLE. THE LAW WILL ALSO APPLY TO ALL NON - R ESIDENTS IN RESPECT OF PAYMENT/REMITTANCES LIABLE TO TDS. AS PER THE NEW PROVISIONS, CERTIFICATE FOR DEDUCTION AT LOWER RATE OR NO DEDUCTION SHALL NOT BE GIVEN BY THE ASSESSING OFFICER UNDER SECTION 197, OR DECLARATION BY DEDUCTEE UNDER SECTION 197A FOR NO N - DEDUCTION OF TDS ON PAYMENTS SHALL NOT BE VALID, UNLESS THE APPLICATION BEARS PAN OF THE APPLICANT/DEDUCTEE. 2. ALL DEDUCTORS ARE LIABLE TO DEDUCT TAX AT THE HIGHER RATE IN ALL TRANSACTION NOT HAVING PAN OF THE DEDUCTEE ON OR AFTER 1 ST APRIL, 2010. IN OR DER THAT THERE IS NO DISPUTE REGARDING QUOTING/NON - QUOTING OF PAN OR ACCURACY THEREOF, THE LAW REQUIRES ALL DEDUCTEES AND DEDUCTORS TO QUOTE PAN OF DEDUCTEES IN ALL CORRESPONDENCES, BILLS, VOUCHERS AND OTHER DOCUMENTS SENT TO EACH OTHER. ALL DEDUCTORS ARE, THEREFORE, ADVISED TO INTIMATE THEIR DEDUCTEES TO OBTAIN AND FURNISH THEIR PAN SO AS TO AVOID TDS AT HIGHER RATE. ALL DEDUCTEES, INCLUDING NON - RESIDENTS HAVING TRANSACTIONS IN INDIA LIABLE TO TDS, ARE ADVISED TO OBTAIN PAN BY 31 ST MARCH, 2010 AND COMMUNIC ATE THE SAME TO THEIR DEDUCTORS BEFORE TAX IS ACTUALLY DEDUCTED ON TRANSACTIONS AFTER THAT DATE.' THE ABOVE IS APPLICABLE TO THE CASE OF THE APPELLANT ALSO. IN VIEW OF IT THE APPELLANT IS AT DEFAULT FOR DEDUCTING TDS AT A LOWER RATE THEREFORE, THE ACTION O F THE DOT CPC - TDS FOR CREATING A DEMAND OF RS.48,87,990/ - IS CONFIRMED AND THE GROUND OF APPEAL OF THE APPELLANT IS DISMISSED.' HOWEVER, THE APPELLANT IN THE WRITTEN SUBMISSION STATED THAT SUBSEQUENT TO THE ABOVE DECISION GIVEN BY CIT(A) VIDE ORDER DT:28.0 5.2015, THE BANGALORE BENCH OF ITAT IN THE CASE OF INFOSYS BPO LTD. VIDE ORDER DT:29.06.2015 HAS HELD THAT PROVISIONS OF IT ACT CANNOT OVERRIDE THE PROVISIONS OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA) AND THE TAX LIABILITY OF THE NON - RESIDENT CANNO T EXCEED THE RATE PRESCRIBED IN THE RELEVANT DTAA. HO EVER, THE ISSUE HAS ALREADY BEEN DECIDED, KEEPING IN VIEW THE FACTS AND (AW OF THE CASE, SO FOLLOWING THE PRINCIPLE OF CONSISTENCY I DO NOT FEEL ANY 'NEED TO INTERFERE IN THE ORDER/INTIMATION U/S 154 OF THE ACT PASSED BY DOT CPC IDS , VAISHALI CREATING I.T.A NO. 947 /AHD/20 16 A.Y. 2013 - 14 PAGE NO UNI PHOS ENVIRONTRONICS PVT. LTD VS . DCIT(TDS) 6 DEMAND OF RS.90,750/ - INCLUDING INTEREST OF RS.12,512/ - , HENCE, THE GROUND OF APPEAL OF THE APPELLANT IS DISMISSED. 5 . DURING THE COURSE OF APPELLATE PROCEEDINGS, LD. COUNSEL SUBMITTED THAT THE CO - ORDINATE BENCH OF ITAT, AHMEDABAD IN THE CASE OF ASSESSEE ITSELF PERTAINING TO ASSESSMENT YEAR 2014 - 15 HA S DECIDED THE IDENTICAL ISSUE IN FAVOR OF THE ASSESSEE. ON OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE CIT(A). 6 . WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. WE NOTICED THAT DURING THE YEAR UNDER REFERENCE THE ASSESSEE HAD RECEIVED LEGAL SERVICES FROM KRACHT+STROH E RECHTSANWALTE KOLN A LAW FIRM OF GERMANY. IN ACCORDANCE WITH THE ARTICLE 12 OF THE DOUBLE TAXAT ION AVOIDANCE AGREEMENT BETWEEN INDIA AND GERMANY THE ASSESSEE HAD DEDUCTED TDS @ 10% OF RS. 73 , 804/ - AS THE REMITTANCE WAS MADE EQUIVALENT TO INDIAN RUPEES 7 , 38 , 045/ - . THEREAFTER, DCIT CPC TDS, VAISHALI GAJIABAD MADE RECTIFICATION U/S. 154 OF THE ACT RA ISING DEMAND OF RS. 90,750/ - INCLUDING INTEREST OF RS. 12 , 512/ - ON THE GROUND THAT THE ASSESSEE HAD DEDUCTED TDS @ 10% INST EAD OF 20.6%. WE FIND THAT THE LD. CIT(A) HAS REJECTED APPEAL OF THE ASSESSEE ON THE REASONING THAT ALL DEDUCTOR S ARE LIABLE TO DED UCT TAX AT HIGHER RATE IN ALL TRANSACTION S NOT HAVING PAN OF THE DEDUCTEE W.E.F. FROM 1 ST APRIL, 2010. IN THIS CONNECTION W E HAVE PERUSED THE DECISION OF THE BANGLORE BENCH OF ITAT DECISION DATED 29/06/2015 IN THE CASE OF INFOSYS BPO LTD IN WH ICH IT WAS HELD THAT THE PROVISIONS OF IT ACT, 1961 CANNOT OVERRIDE THE PROVISIONS OF DTAA . I.T.A NO. 947 /AHD/20 16 A.Y. 2013 - 14 PAGE NO UNI PHOS ENVIRONTRONICS PVT. LTD VS . DCIT(TDS) 7 6.1 WE ALSO FIND THAT THE CO - ORDINATE BENCH OF THE ITAT AHMEDABAD IN THE CASE OF THE ASSESSEE ITSELF PERTAINING TO ASSESSMENT YEAR 2014 - 05 VIDE ITA NO. 1974/AHD/2015 DECID ED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE ON 30/09/2019 . THE RELEVANT PART OF THE DECISION IS REPRODUCED AS UNDER: - [4] IT IS ONLY ELEMENTARY THAT, UNDER THE SCHEME OF THE INCOME TAX ACT 1961 - AS SET OUT UNDER SECTION 90(2) OF THE ACT, THE PROVISI ONS OF THE APPLICABLE TAX TREATIES OVERRIDE THE PROVISIONS OF THE INCOME TAX ACT 1961 - EXCEPT WHEN THE PROVISIONS OF THE ACT ARE MORE BENEFICIAL TO THE ASSESSEE. THE PROVISIONS OF THE APPLICABLE TAX TREATY, IN THE PRESENT CASE, PRESCRIBE THE TAX RATE @ 10% . THIS RATE OF 10% IS APPLICABLE ON THE RELATED INCOME WHETHER OR NOT THE ASSESSEE HAS OBTAINED THE PERMANENT ACCOUNT NUMBER. IN EFFECT, THEREFORE, EVEN WHEN A FOREIGN ENTITY DOES NOT OBTAIN PAN IN INDIA, THE APPLICABLE TAX RATE IS 10% IN THIS CASE. SECTIO N 206AA, WHICH PROVIDES A HIGHER TAX BURDEN - I.E. TAXABILITY @ 20% IN THE EVENT OF FOREIGN ENTITY NOT OBTAINING THE PERMANENT ACCOUNT NUMBER IN INDIA, THEREFORE, CANNOT BE PRESSED INTO SERVICE, AS HAS BEEN DONE IN THE COURSE OF PROCESSING OF RETURN UNDER S ECTION 200A. TO THAT EXTENT, SHORT DEDUCTION OF TAX AT SOURCE DEMAND, RAISED IN THE COURSE OF PROCESSING OF TDS RETURN UNDER SECTION 200A, IS UNSUSTAINABLE IN LAW. WE QUASH THIS SHORT DEDUCTION OF TAX AT SOURCE DEMAND. THE GRIEVANCE OF THE ASSESSEE IS INDE ED JUSTIFIED, MERITS ACCEPTANCE AND IS HEREBY UPHELD. 6.2 WE NOTICED THAT THE ASSESSEE HAD DEDUCTED THE TAX AT SOURCE AT THE RATES PRESCRIBED IN RESPECTIVE DTAAS BETWEEN INDIA AND GERMANY AT THE PRESCRIBED RATE OF 10%. WE HAVE ALSO CONSIDERED THAT, WHE RE THE TAX HAS BEEN DEDUCTED ON THE STRENGTH OF THE BENEFICIAL PROVISIONS OF DTAA S, IN THAT CASE, THE PROVISIONS OF SEC TION 206AA OF THE ACT CANNOT BE INVOKED BECAUSE SECTION 90(2) OF THE ACT PROVIDES THAT THE PROVISIONS OF THE ACT SHALL APPLY TO THE EXTE NT THEY ARE MORE BENEFICIAL TO THE ASSESSEE. I.T.A NO. 947 /AHD/20 16 A.Y. 2013 - 14 PAGE NO UNI PHOS ENVIRONTRONICS PVT. LTD VS . DCIT(TDS) 8 6.3 IN VIEW OF THE ABOVE STATED FACTS AND LEGAL FINDINGS, IN OUR CONSIDERED OPIN I ON THE LD. CIT(A) HAS NOT SUBSTANTIATED THE SUSTAINING OF IMPUGNED DEMAND RAISED BY THE ASSESSING OFFICER ,THEREFORE, WE A LLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT , THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 06 - 02 - 201 7 SD/ - SD/ - ( R. P. TOLANI ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 06 /02 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,