The ACIT, Central Circle 1, Baroda V. Smt. Pragnaben Kiritbhai Patel, Baroda

ITSSA 375/AHD/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2766 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR
• Keywords: Principle of natural justice
• Section: 143(3); 153A; 234B; 132; 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I R. P. TOLANI , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE ACIT, CENTRAL CIRCLE - 1, BARODA (APPELLANT) VS SMT. PRAGNABEN KIRITBHAI PATEL, 1A, KRISHNADHAM SOCIETY, NR. MANINAGAR SOCIETY, MANJALPUR, BARODA PAN: AETPP5083K (RESPONDENT) REVENUE BY : S H RI JAMES KURIAN , SR. D . R. ASSESSEE BY: S H RI S.N. SOPARKAR , A.R. DATE OF HEARING : 01 - 12 - 2 016 DATE OF PRONOUNCEMENT : 23 - 12 - 2 016 / ORDER P ER : AMARJIT SINGH, ACCOUNTAN T MEMBER : - THIS REVENUE S APPEAL FOR A.Y. 2009 - 10 , AR ISES FROM ORDER OF THE CIT(A) - IV, AHMEDABAD DATED 17 - 07 - 2013 , IN PROCEEDINGS UN DER SECTION 154 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T (SS) A NO . 375 / A HD/20 13 A SSESSMENT YEAR 200 9 - 10 I.T(SS) A NO. 375 /AHD/20 13 A.Y. 2009 - 10 PAGE NO ACIT VS. SMT. PRAGNABEN KIRITBHAI PATEL 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUND OF APPEAL: - THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO GIVE CREDIT OF RS. 36,05,000/ - TO THE ASSESSEE FOR THE PAYMENT OF SELF ASSESSMENT TAX U/S 140A(3) OF THE I T ACT OUT OF THE DEPOSITS MADE BY THE ASSESSEE IN THE P.D . ACCOU NT OF THE CIT FOR THE RELEASE OF GOLD ETC. WITH EFFECT FROM THE DATE OF FILING OF RETURNS OF INCOME AND FURTHER DIRECTED OF CHARGING OF INTEREST AFTER MAKING THIS ADJUSTMENT. 3. IN THIS CASE, SEARCH ACTION U/S. 132 OF THE ACT WAS CARRIED OUT ON 10 TH SEPT EMBER, 2009. IN RESPONSE TO THE NOTICE U/S. 153A, THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 1 , 20 , 08 , 600/ - . THE ASSESSING O FFICER HAS COMPLETED THE ASSESSMENT U/S. 153A R.W.S. 143(3) OF THE ACT ACCEPTED THE INCOME DECLARED I N THE RETURN OF INCOME. SUBSEQUENTLY , THE ASSESSEE HAD FILED APPLICATION FOR RECTIFICATION U/S. 15 4 OF THE I.T. ACT STATING THAT THE ASSESSING OFFICER WHILE PASSING ORDER U/S 143(3) OF THE ACT HAS NOT GIVEN CREDIT OF RS. 36, 0 5 , 000/ - AS THE SAME WAS CASH SE IZED/AMOUNT PAID FOR RELEASE OF GOLD/JEW ELRY. T HE ASSESSING O FFICER REJECTED THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE STATING THAT IT CAN NOT BE RECTIFIED AS THE DEPOSIT OF RS. 36, 0 5 , 000/ - WAS MADE BY THE ASSESSEE AGAINST THE RELEASE OF JEWELRY WHICH WAS L YING IN THE PD ACCOUNT OF THE CONCERN ED COMMISSIONER OF INCOME TAX . 4. AGGRIEVED AGAINST THE ORDER OF THE A S SESSING O FFICER , THE ASSESSEE HAD FILED APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX(A). THE LD. COMMISSIONER OF INCOME TAX(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE. THE LD. COMMISSIONER OF INCOME T AX(A) HAS ALSO STATED THAT ASSESSING O FFICER HAS NOT PROVIDED ANY I.T(SS) A NO. 375 /AHD/20 13 A.Y. 2009 - 10 PAGE NO ACIT VS. SMT. PRAGNABEN KIRITBHAI PATEL 3 REASON FOR NOT GRANTING THE ASSESSE CREDIT OF TAXES DULY ALLOWABLE AS PER SECTION 132B OF THE ACT. THE LD. COMMISSIO NER OF INCOME TAX(A) ALSO STATED THAT ASSESSEE HAD ALREADY FILED LETTER BEFORE THE ASSESSING O FFICER REQUESTING FOR ADJUSTMENT OF AMOUNT AGAINST ASSESSEE S TAX LIABILITY I N ACCORDANCE WITH THE PROVISION OF SECTION 132B OF THE ACT. THE DECISION OF THE LD. COMMISSIONER OF INCOME TAX(A) IS REPRODUCED AS UNDER: - 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANTS AND GONE THROUGH THE ORDERS U/S 154 PASSED BY THE ASSESSING OFFICER. I HAVE ALSO GONE THROUGH THE VARIOUS JUDICIAL DECISIONS RELIED UPON BY THE APPELLANT. 6.1 IT IS AN UNDISPUTED FACT THAT CASH OF RS.10,80,000/ - WAS SEIZED U/S 132 OF THE ACT IN THE CASE OF SHRI GIRDHARBHAI RAMJIBHAI PATEL ON 10 - 09 - 2009. FURTHER, PAYMENTS HAVE BEEN MADE IN THE PD ACCOUNT FOR RELEASE OF GOLD JEWE LLERY ETC. IN OCTOBER, 2009 VIDE DDS/CHEQUE AS PER THE DETAILS AS UNDER: SR. NO. NAME OF THE APPELLANT PAYMENT MADE IN OCT. 2009 1 SMT. MADHUBEN DALSUKHBHAI PATEL RS.6,28,000/ - 2 SMT. LOMHARSHINI AMITBHAI PATEL RS.16,21,300/ - 3 SMT. PRAGNAB EN KIRITBHAI PATEL RS.36,05,000/ - IN THE FORWARDING LETTER DTD. 24 - 06 - 2010 IT IS SUBMITTED THAT THE AMOUNT DEPOSITED IN P D ACCOUNT MAY BE USED FOR ADJUSTMENT AGAINST TAX LIABILITY. IN THE CASE OF SHRI GIRDHARBHAI RAMJIBHAI PATEL, THE RELEVANT PORTION OF THE SAID LETTER IS REPRODUCED AS UNDER: 'I REQUEST TO YOUR GOODSELVES THAT OUT OF THE ABOVE CASH SEIZED DURING THE COURSE OF SEARCH FROM MY POSSESSION, CASH AMOUNTING TO I.T(SS) A NO. 375 /AHD/20 13 A.Y. 2009 - 10 PAGE NO ACIT VS. SMT. PRAGNABEN KIRITBHAI PATEL 4 RS. 10,80, 000 / - TO BE ADJUSTED AGAINST MY TAX LIABILITY FOR THE ASSESSMENT YEAR 20 09 - 10. IN THE ABOVE MATTER IT MAY NOT BE OUT OF PLACE TO STATE THAT ADJUSTMENT OF THE SAME WAS SOUGHT FOR IMMEDIATELY AFTER SEARCH. HENCE THIS IS A FORMAL REQUEST QUANTIFYING THE TAX LIABILITY TO BE ADJUSTED ON THE BASIS OF THE RETURN WHICH IS BEING FILED . KINDLY TREAT THIS REQUEST AS UNCONDITIONAL AND IRREVOCABLE AND DO THE NEEDFUL AT YOUR END. ANY FORMALITIES IF REQUIRED FROM OUR SIDE MAY KINDLY BE INTIMATED US SO THAT THE SAME CAN BE COMPLIED.' SIMILAR SUBMISSIONS WERE MADE IN THE CASE OF OTHER APPELLA NTS. 6.2 THE PROCEDURE OF TREATMENT OF SEIZED CASH IS DESCRIBED IN SECTION 132B OF THE IT ACT. THE SEIZED CASH MAY REPRESENT THE INCOME OF THE APPELLANT BUT IT CANNOT BE APPROPRIATED TOWARDS ANY TAX LIABILITY. THE SEIZED CASH CAN BE APPROPRIATED AGAINST AN Y EXISTING LIABILITY UNDER THE IT, WT ACT ETC. AND THE AMOUNT OF LIABILITY DETERMINED ON COMPLETION OF ASSESSMENT IN TERMS OF 132B(1) OF THE ACT. THE ISSUE THAT NEEDS TO BE DECIDED IS AS TO WHETHER ANY TAX LIABILITY CAN BE SAID TO BE EXISTING BEFORE THE DE TERMINATION OF SUCH LIABILITY, BY THE AO IN THE ASSESSMENT ORDER. 6.3 SO FAR AS THE LIABILITY FOR ADVANCE TAX IS CONCERNED, IT IS NOTED THAT AS INTERPRETED BY A FEW COURTS, THE EXPRESSION 'EXISTING LIABILITY' IN. SECTION 132B(1)(I) CANNOT BE READ TO EXCLU DE A PARTICULAR TAX LIABILITY, IF IT CAN BE SHOWN TO HAVE EXISTED ON A PARTICULAR DATE. SECTION - 132B(1)(I) OF THE ACT DOES NOT PROHIBIT UTILIZATION OF THE AMOUNT SEIZED DURING THE COURSE OF SEARCH TOWARDS THE ADVANCE TAX PAYABLE ON THE AMOUNT OF UNDISCLOSE D INCOME DECLARED DURING THE COURSE OF SEARCH. ON THE OTHER HAND, IN THE CASE OF RAMJILAL JAGANNATH & OTHERS [2000] 241 ITR 758 (MP), IT HAS BEEN HELD THAT IRRESPECTIVE OF THE SEIZURE OF THE AMOUNT, THE ASSESSEE IS OBLIGED TO PAY THE ADVANCE TAX IN ACCORDA NCE WITH LAW AND IF HE HAD NOT PAID THE ADVANCE TAX IN ACCORDANCE WITH THE PROVISIONS OF THE ACT, HE COULD NOT AVOID THE LIABILITY EITHER UNDER SECTION 234B OR SECTION 234C. THE REQUEST OF THE ASSESSEE FOR ADJUSTMENT OF SEIZED CASH CANNOT BE MADE AGAINST A DVANCE TAX. 6.4 HOWEVER, EVEN IF 'ADVANCE TAX LIABILITY' IS ACCEPTED AS AN 'EXISTING LIABILITY' FOR THE PURPOSES OF SECTION 132 B (1)(I) OF THE ACT, THE SAME NEEDS TO BE DETERMINED SO AS TO ALLOW THE AO TO MAKE THE NECESSARY ADJUSTMENT. IT IS AN UNDISPUTE D FACT THAT PAYMENT OF I.T(SS) A NO. 375 /AHD/20 13 A.Y. 2009 - 10 PAGE NO ACIT VS. SMT. PRAGNABEN KIRITBHAI PATEL 5 ADVANCE TAX IS VOLUNTARY ONE. THE ASSESSEE WHO IS LIABLE TO MAKE PAYMENT OF ADVANCE TAX IN TERMS OF SECTION 208 OF THE ACT, IS REQUIRED TO MAKE PAYMENT OF ADVANCE TAX ON HIS OWN ACCORD ON HIS ESTIMATED CURRENT INCOME IN APPROPRIATE I NSTALLMENTS AS PRESCRIBED. THE AO MAY ALSO DETERMINE THE ADVANCE TAX LIABILITY OF THE APPELLANT U /S 210(3) / 210(4) R.W.S. 209(1)(B) AND 209(1 )(C) OF THE ACT. HOWEVER, DETERMINATION OF SUCH ADVANCE TAX LIABILITY BY THE AO IS NOT MANDATORY. FURTHER, EVEN OT HERWISE, FOR THE PURPOSES OF DETERMINING THE ADVANCE TAX LIABILITY BY THE AO, SUCH DETERMINATION CANNOT EXCEED THE TAX LIABILITY AS PER LATEST ASSESSED INCOME OF THE APPELLANT OR SUBSEQUENTLY FILED RETURNED INCOME, WHICHEVER IS HIGHER. IN A SEARCH RELATED CASE, THE DETERMINATION OF ADVANCE TAX LIABILITY BY THE AO MAY NOT SERVE ANY PURPOSE SINCE HE CAN DETERMINE SUCH LIABILITY ONLY ON THE BASIS OF LATEST ASSESSED INCOME / RETURNED INCOME SUBSEQUENTLY FILED IN TERMS OF SECTION 210(3) / 210(4) OF THE ACT. THE AO CANNOT, THEREFORE, DETERMINE THE CORRECT ADVANCE TAX LIABILITY OF THE APPELLANT IN A SEARCH RELATED CASE SINCE DISCLOSED INCOME DURING THE COURSE OF SEARCH OR UNDISCLOSED INCOME UNEARTHED DURING THE COURSE OF SEARCH CANNOT BE TAKEN INTO ACCOUNT BY THE A O FOR THE PURPOSE OF DETERMINATION OF ADVANCE TAX LIABILITY. 6.5 SO FAR AS THE APPELLANTS ARE CONCERNED, THEY HAVE ALSO NOT DETERMINED THE ADVANCE TAX LIABILITY ON THEIR CURRENT ESTIMATED INCOME. THEY HAVE SIMPLY REQUESTED BY A LETTER TO ADJUST AGAINST TA X LIABILITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 132B OF THE ACT. NO QUANTIFICATION FOR THE ACTUAL ADVANCE LIABILITY HAS BEEN MADE BY THE APPELLANTS AT ALL. THE UNQUALIFIED / UNDETERMINED ADVANCE TAX LIABILITY CANNOT BE SAID TO BE AN EXISTING LIABI LITY AND THE ONUS TO DETERMINE / QUANTIFY SUCH LIABILITY FOR THE PURPOSE OF ADJUSTMENT AGAINST SEIZED CASH IN TERMS OF SECTION 132B OF THE ACT AS PER APPROPRIATE INSTALLMENTS IS ON THE APPELLANTS ONLY. THEREFORE, THE ADVANCE TAX LIABILITY HAS NOT BEEN DETE RMINED BY THE APPELLANTS AT ALL ON THEIR CURRENT ESTIMATED INCOME. 6.6 THE ADVANCE TAX LIABILITY CAN BE SAID TO BE AN 'EXISTING LIABILITY' ONLY IF THE APPELLANTS DETERMINE THE ADVANCE TAX LIABILITY BASED ON .THEIR CURRENT ESTIMATED INCOME INCLUDING THE DI SCLOSED INCOME DURING THE COURSE OF SEARCH AND MAKE SPECIFIC REQUEST TO THE AO TO MAKE NECESSARY ADJUSTMENT AS PER THE APPROPRIATE INSTALLMENTS BEFORE THE INSTALLMENTS BECOME DUE. THIS IS THE CRUX OF THE JUDICIAL DECISIONS RELIED UPON BY THE APPELLANTS. I.T(SS) A NO. 375 /AHD/20 13 A.Y. 2009 - 10 PAGE NO ACIT VS. SMT. PRAGNABEN KIRITBHAI PATEL 6 6 .7 THE AO CAN RECOVER THE AMOUNT OF TAX FROM THE SEIZED CASH OF THE APPELLANTS ONLY IF THE TAX LIABILITY OF THE APPELLANTS EXISTS AT THE TIME OF SUCH RECOVERY. IN THE PRESENT CASE, THE AO HAS NOT DETERMINED THE ADVANCE TAX LIABILITY OF THE APPELLANTS U/S 2 10(3) / 210(4) R.W.S 209(1)(B) AND 209(1)(C) OF THE ACT. THE APPELLANTS HAVE 'ALSO NOT QUANTIFIED / DETERMINED THEIR TAX VIABILITY BASED ON THEIR CURRENT ESTIMATED INCOME. THEREFORE, NO ADVANCE TAX LIABILITY CAN BE SAID TO BE EXISTENT U/S 218 OF THE ACT WH ICH CAN BE RECOVERED OUT OF THE SEIZED CASH. IN VIEW OF THIS, THE SEIZURE OF CASH AS WELL AS PAYMENT MADE FOR RELEASE OF GOLD ORNAMENTS IN OCTOBER, 2009 TO THE DEPARTMENT CANNOT BECOME PAYMENT FOR ADVANCE TAX BY THE APPELLANTS ALL BY ITSELF ON THE DATE OF SEIZURE OF CASH / DATE OF PAYMENT MADE FOR RELEASE OF GOLD JEWELLERY. 6.8 THE APPELLANTS HAVE CLAIMED FOR THE ADJUSTMENT OF THE SEIZED CASH AGAINST THE TAX PAYABLE AS PER RETURNS OF INCOME. THUS, THE TAX LIABILITY OF THE APPELLANTS HAS COME INTO EXISTENCE AS PER SECTION 140A(3) OF THE ACT FROM THE DATE, OF FILING THE RETURNS OF INCOME. IN MY OPINION, THE AO SHOULD HAVE ADJUSTED THE SEIZED CASH AS WELL AS PAYMENT MADE FOR RELEASE OF GOLD ORNAMENTS AGAINST TAX LIABILITY OF THE APPELLANTS WHICH CAME INTO EXIS TENCE U/S 140A(3) OF THE ACT W.E.F. DATE OF FILING OF RETURNS OF INCOME. THE NON - ADJUSTMENT OF THE SEIZED CASH / PAYMENT MADE FOR RELEASE OF GOLD JEWELLERY ETC. AGAINST THE TAX LIABILITY U/S 140A(3) OF THE ACT, ON THE PART OF THE AO, AND CHARGING OF INTERE ST FOR NON - PAYMENT OF SELF - ASSESSMENT TAX WHEN THE CORRESPONDING AMOUNT OF SEIZED CASH IS 'IN POSSESSION OF DEPARTMENT, IS SIMPLY AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 6.9 IN VIEW OF THE ABOVE AND CONSIDERING THE FACT THAT THE TAX LIABILITY U/S 140A( 3) CAME INTO EXISTENCE W.E.F. DATE OF FILING OF RETURNS OF INCOME, THE AO IS DIRECTED TO GIVE CREDIT TO THE APPELLANTS FOR THE PAYMENT OF SELF ASSESSMENT TAX U/S 140A(3) OUT OF THE SEIZED CASH / PAYMENTS MADE FOR THE RELEASE OF GOLD ETC. WITH EFFECT FROM T HE DATE OF FILING OF RETURNS OF INCOME IN THE CASE OF EACH OF THE APPELLANTS. THE AO IS DIRECTED TO CHARGE INTEREST U/S 234A, 234B & 234C OF THE ACT AFTER MAKING ABOVE ADJUSTMENTS. ACCORDINGLY, THIS GROUND OF APPEAL IS PARTLY ALLOWED SUBJECT TO ABOVE FINDI NGS. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, LD. D.R. STATED THAT LD. COMMISSIONER OF INCOME TAX(A) HAS ERRED IN LA W AND I.T(SS) A NO. 375 /AHD/20 13 A.Y. 2009 - 10 PAGE NO ACIT VS. SMT. PRAGNABEN KIRITBHAI PATEL 7 ON FACT IN DIRECTING THE ASSESSING O FFICER TO GIVE CREDIT OF RS. 36, 0 5 , 000/ - FOR PAYMENT OF SELF ASSESSMENT TAX U/S . 140A(3) OF THE ACT OUT OF THE DEPOSIT MADE BY THE ASSESSEE IN THE PD ACCOUNT OF THE COMMISSIONER OF INCOME TAX FOR THE RELEASE OF GOLD ETC. ON OTHER HAND, THE LD. COUNSEL RELIED ON THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A) AND ALSO PLACED REL IANCE ON THE DECISION OF ITAT SMC BENCH, AHMEDABAD ITA NO. 2824/AHD/2013 DATED 30/09/2016 SHRI ANIL KUMAR C. RADHANPURA VS. DCIT. 6. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. WE FIND THAT THE ASSESS EE HA D MADE APPLICATION TO THE ASSESSING O FFICER FOR ADJUSTMENT OF THE SEIZED CASH AGAINST THE TAX PAYABLE AS PER RETURN OF INCOME. WE ALSO NOTICED THAT T HE ASSESSING O FFICER HAS NOT STATED ANY REASON FOR REJECTION OF RECTIFICATION APPLICATION OF THE ASSESSEE MADE U/S 154 OF TH E ACT. WE HAVE ALSO PERUSED THE PROVISION OF SECTION 132B OF THE ACT AND HAVE NOTED THAT EXPLANATION 2 TO PROVISION OF SECTION 132B OF THE ACT WAS INTRODUCED W.E.F. 01 - 06 - 2013 IN WHICH IT IS DECLARED THAT THE EXISTING LIABILITY DOES NOT INCLUDE ADVANCE TA X PAYABLE IN ACCORDANCE WITH THE PROVISION OF PART C OF CHAPTER XVII. WE HAVE SEEN THAT ASSESSEE S APPLICATION WAS NOT ADJUDIC ATED WITH PROPER REASON BY THE ASSESSING O FFICER. WE HAVE ALSO PERUSED THE DECISION OF THE CO - ORDINATE BENCH OF THE ITAT, AHMED ABAD IN THE CASE OF KANISHKA PRINTS PVT. LTD VS. ACI T 34 TAXMANN.COM 307 (2013). IN WHICH IT WAS HELD THAT EXPLANATION HAS BEEN MADE APPLICABLE W.E.F. 01 - 06 - 2013. WE FIND THAT THE LD. COMMISSIONER OF INCOME TAX(A) HAS GIVEN COMPLETE FINDING IN THE I.T(SS) A NO. 375 /AHD/20 13 A.Y. 2009 - 10 PAGE NO ACIT VS. SMT. PRAGNABEN KIRITBHAI PATEL 8 CASE OF THE ASSESSEE WHICH INDICATES THAT THE TAX LIABILITY U/S. 140A(3) HAS COME INTO EXISTENCE W.E.F. DATE OF FILING OF RETURN OF INCOME AND LD.CIT (A) HAS CORRECTLY DIRECTED THE ASSESSING OFFICER TO GIVE CREDIT TO THE ASSESSEE FOR THE PAYMENT OF SELF ASSESSM ENT TAX U/S. 140A(3) OUT OF THE SEIZED CASH PAYMENT MADE FOR THE RELEASE OF GOLD ETC. IN VIEW OF THE ABOVE FACTS AND FINDINGS, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. COMMISSIONER OF INCOME TAX(A). 7. IN THE RE SUL T, THE APP EA L OF THE REVENUE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 23 - 12 - 201 6 SD/ - SD/ - ( R. P. TOLANI ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 23 /12 /2016 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,