TaxTMI 
TaxTMI 
2022 (12) TMI 347
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....osed to law and facts of the case. 2. The CIT(A) erred in holding that land in consideration was held as fixed asset in the books of accounts although it was admitted by assessee in his statement u/s 132(4) of I T Act dated 28.08.2016 and reaffirmed in his statement u/s 131 of I T Act dated 19.10.2016 that the said land was held as stock in trade in his books. 3. The CIT(A) erred in holding that the sale of units by land owner in a project developed on JDA basis will attract taxation u/s 45(2) of I T Act only after it is sold by a registered deed. 4. The CIT(A) has erred in not considering the principles of revenue recognition as prescribed in AS9 to determine income. 5. Any other ground that may be urged at the time of appeal. CO Nos.17 to 19/Bang/2021 (AYs 2014-15 to 2016-17): Common grounds:- 1. The learned Commissioner of Income-tax (Appeals) has erred in holding that several legal issues raised by the Cross Objector in the appeal before the learned Commissioner of Income-tax (Appeals) are not to be decided upon in view of the appellant getting relief on the factual issues involved in this appeal. The learned Commissioner of Incom....
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....t (land owner) on 02.09.2010 for development and construction of residential building in the land. Copy of the Development Agreement is available at Page no. 185 to 223 of the Paper book filed. Thereafter two Supplementary Agreements and a Deed of Rectification were also entered into which are available at page nos. 224 to242 of the Paper Book filed. At the time of entering into DA, amount of Rs. 25 Crores was given to the Respondent as refundable security deposit which was subsequently adjusted proportionally against the advances received. In terms of DA, the revenue earned from sale, lease, license of the area covered under the project was to be shared between the Respondent and developer in the ratio of 37% and 63% respectively. The developer started giving the owners share to the Respondent from FY 2012-13 onwards. These advances were shown as liabilities in the Balance sheet of the Respondent. 4.2 Respondent's share of revenue under this agreement has been offered to tax by the Respondent under the head capital gains. The revenue has been offered to tax in the year in which the flats have been registered in favour of the buyers. Such registrations began from FY 16-17 (AY 20....
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....ized as stock -in-trade in his books. However, as he is regularly receiving the amounts of advances received from M/s. G-Corp Homes Pvt Ltd., the assessee was questioned as to why his part of the advances received shall not be considered as revenue under percentage completion method. In reply, Shri. M R Seetharam accepted this position of the department and agreed to offer the revenue in the respective Assessment Years as per the table below: Assessment Year Amount offered to Tax in (Rs.) 2014-15 27,00,00,000/- 2015-16 50,00,00,000/- 2016-17 25,00,00,000/- TOTAL 102,00,00,000/- 5.2. Again, a sworn statement of Shri. M R Seetharam was recorded u/s 131 of the Act on 19.10.2016. In the statement recorded on 19.10.2016, Shri. Seetharam once again reaffirmed the admission of unaccounted income that he admitted at the time of the search proceedings. Thus, the assessee admitted, confirmed and reaffirmed the declarations of Rs.102 crore on account of his share of income received from M/s G Corp Homes P Ltd as his business income for the respective Assessment Years. 5.3 However, in the return filed in response to notice u/s 153C of I T Act, the assessee d....
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....he owner executed an irrevocable power of attorney in respect of the property to the developer for development of the property and construction thereon. Another power of attorney was given in favour of the developer giving power to the developer for selling the premises, including selling of the undivided interest in the land. Thus, risk of the assessee is shifted to the developer. By virtue of this, the assessee is receiving the advances from developer at end of every month. iii. The revenue-sharing model of Joint Development being followed by the assessee is a composite arrangement wherein land is contributed by one party and the development being carried out by the other party with a clear understanding on sharing of the proceeds from sale of entire developed property and also with an understanding on sharing of unsold inventory between both the parties. iv. The very terms of revenue-sharing Joint Development Agreement - 37% of the total revenue from the developed property indicates the transaction is that of business in nature similar to that of developer and not that of mere transfer of assessee's property to the customers as a capital asset as claimed by....
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....e/income should be recognized when there is an actual transfer even though the legal title is not transferred. * ICAI guidance note on recognition of revenue for real estate transactions states that the basic principles of AS-09 would apply to Real Estate transactions. * The point at which all significant risks and rewards of ownership can be considered as transferred is required to be determined on the basis of the terms and conditions of the agreement for sale. In case of real estate sales, the seller usually enters into an agreement for sale with the buyer at initial stages of construction. This agreement for sale is also considered to have the effect of transferring all significant risks and rewards of ownership to the buyer provided the agreement is legally enforceable and subject to the satisfaction of conditions which signify, transferring of significant risks and rewards even though the legal title is not transferred of the possession of the flat/apartment is not given to the buyer. * Application of AS-9 for sale of goods in real estate transactions - the completion of the revenue recognition process is usually identified the following conditions ....
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....e business process of development of- property, sale of the apartments, transfer of assessee's share of revenue to the assessee's account is irreversible by the assessee. The business process is similar to that of a business activity of a developer and the assessee should have recognized revenue as per AS-9, being a land owner. It is also noticed by the Ld. D.R. that from the returns of income filed by the assessee till AY 2015-16, the assessee had shown this land which is under JDA as stock in trade. Subsequently, from AY 2016-17 it has been shown as capital asset in the books of accounts and the income is offered by the assessee as income from capital gains. Further, the other party, i.e. G Corp Homes Pvt. Ltd. is also recognizing the revenue on the development as per percentage completion method under relevant accounting standards and once the sale agreement has been entered and the assessee has received his share of revenue, it has the effect of all significant risks and rewards even though legal title is not transferred. As per the sample sale agreements submitted by the assessee during the assessment proceedings, nowhere it is specifically mentioned that there is any ....
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....3,544,401 32,467,521 241,076,880 2021-22 87,323,301 971,873 86,351,428 11,448,343 74,903,085 Total 1,486,310,243 Advances received for the project are as under: Yearwise Receipts The Icon - M/s. G Corp Homes Pvt Ltd Asst. Year Total 2013-14 13,87,39,209 2014-15 37,19,07,751 2015-16 59,50,41,812 2016-17 34,66,85,997 2017-18 15,61,45,940 2018-19 15,73,03,035 2019-20 22,86,64,369 2020-21 12,41,04,010 2021-22 5,11,66,373 Total 2,16,97,58,496 6.1. The reading of several clauses of Development Agreement (ref point nos. 1, 2 and 10) would show that the Respondent has nothing to do with Development of the Property. The entire construction and development costs were borne by the Developer only. The Respondent had no active role to play in the Development of the Property. This fact is not doubted by authorities below and also accepted by the DR during the course of hearing....
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....y the Respondent. d) The Respondent is into Real Estate Business with respect to other following projects: Project Address Nature of project MSR Green City Project Nelamangala Phase I Police Layout Koolipura Syadamipalya,Krishnajapur Village of Nelamangala Plot development by self MSR Royal City Project Madagalli Village, Yelwalla Hobli, Mysore taluk, Mysore Plot developments by self e. The above real estate projects form part of Respondent's business activities wherein the Respondent is actively involved in development activities and income from these projects have been offered to tax as business income. Thus, the Respondent in the bucket of assets held two categories of immovables - one as capital asset and the other as stock in trade. Merely because, the Respondent is holding some of the lands as stock in trade, the land under consideration i.e., land at Thanisandra cannot be called as stock in trade. f. It has been judicially held in catena of case laws that an assessee may have two portfolios - investment portfolio comprising of capital assets and a trading portfolio comprising of stock in trade. The case laws in this regar....
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.... has not done so. 6.6 The Revenue in ground no. 2 had stated that the CIT(A) had erred in holding that the land under consideration as Fixed Asset although it was admitted by the Respondent in the statements recorded that the said land was held as stock in trade. In this regard, it is submitted that the Revenue's reliance on sworn statements is misplaced: 6.7 It is noted that at page 4 of the impugned order, the learned assessing officer has produced selective extracts from the sworn statements of the Respondent recorded in the course of search in the premises of M/s MS Ramaiah Developers and Builders P Ltd. In the impugned order, for making additions to the Respondent's returned income, no reliance is placed on these sworn statements. The Respondent however wishes to clarify that in any case no adverse conclusions can be drawn in the Respondent's case on the basis of those sworn statements. 6.8 In the sworn statements the Respondent had agreed to offer to tax advances received in accordance with Law. 6.9 Even otherwise, the Respondent submits that there cannot be any estoppel to law. An incorrect position of law even if admitted by the assessee cannot alter the correct....
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....andard 9 as issued by ICAI is available at page nos. 348 to 360 of the paper book filed. As has been submitted earlier AS 9 deals with three forms of revenue. They are - (i) sale of goods (ii) rendering of services; and (iii) use of other person's resources yielding interest, royalties or dividends. 6.18 A conjoint reading of para 10 and 11 of AS-9 gives us following 3 conditions for revenue recognition from sale of goods: a. it is not unreasonable to expect ultimate collection b. 1) The property in the goods is transferred to the buyer or 2) All significant risks and rewards of ownership have been transferred to the buyer and buyer retains no effective control of the goods transferred c. No significant uncertainty exists regarding the amount of the consideration. 6.19 In the Respondent's case, upon entering into an agreement to sale, there is no significant uncertainty that exists as regards the amount of consideration, as the consideration for future sale is fixed on the date of agreement to sale. The agreements to sale are binding legal agreements and it could be said that in most cases there is also n....
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....ndent to the buyer and therefore there is no transfer of risks from the Respondent to the buyers. e. Rewards of ownership in the context of Respondent's case would include returns / benefits to the buyer from use and disposal of the future asset bought. In other words, the benefit accruing to the buyer from use of the land or disposal of the land at his discretion would constitute the reward of ownership of land. f. Whether significant rewards of ownership in the inventory have been transferred is a question of fact to be determined on the basis of terms and conditions agreed between the contracting parties. g. A copy of Respondent's agreement with one of the buyers is available at page no. 361 to 395 of the paper book filed. All other agreements are also similarly structured and worded. Relevant clauses of the agreement are extracted below: * Clause 4 at page 10: 4) The Purchaser is aware that there may be a slight variation in the proportionate undivided interest in the land in relation to the Apartment being sold under this Agreement for Sale and the Purchaser confirms that he/ she/ they have no objection to such variation provided that the sa....
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....ent for revenue recognition is actual and present transfer of risks and rewards of ownership and not possible future assumption of risks and rewards of ownership. k. In light of above deliberations, both risks and rewards of ownership have not been transferred under the agreement to sale. No revenue can therefore accrue at the time of execution of agreement to sale. 6.23 Effective control over land a. Another key requirement for revenue recognition, as has already been discussed, is transfer of effective control over the asset being sold. In the Respondent's case the buyer has not obtained any effective control over the undivided share of land agreed to be sold. The buyer neither has possession of the land, nor ability to direct use of land in a desired manner nor does it have control over sale of the share in land. The relevant clauses of the agreement which highlight the above position are extracted below: * Clause 1 at page 12: Purchaser has no right to interfere with the progress of construction of the apartment and/or the residential buildings or the Project or any part thereof and the Purchaser is aware that he shall not be permitted to enter upo....
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....menced but where revenue is being recognised for the first time on or after April 1, 2012. Accordingly, in the Respondent's case, the revised guidance note is relevant. A copy of the guidance note is available at page nos. 397 to 412 of the paper book filed. b. Para 4 of the guidance note deals with 'Application of Principles of AS 9 in Respect of Sale of Goods to a Real Estate Project'. A perusal of para 4 of guidance note reveals that the guidance note is broadly based on the principles of revenue recognition from sale of goods contained in AS 9. The three conditions of AS 9 - a) transfer of risk, rewards and effective control; b) reasonable certainty of ultimate collection of consideration and c) certainty of amount of consideration are also found under the guidance note. These have already been deliberated in detail in the preceding paragraphs of the current submissions. The guidance note lists a 4th condition which is not expressly present in AS 9 - i.e. transfer of possession to the buyer. c. The Respondent has through various clauses of the agreement to sale already demonstrated that the buyer under the agreement has not received possession of the share in ....
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....ceipts should be accompanied by a right with power to appropriate the same, the other party having no right or recourse over that amount. For an item to be taxed as income, there should be a right to receive coupled with a right to appropriate. In the absence of a right to appropriate, the amount received would be in the nature of liability. There would, in the event of non-fulfillment of the conditions, be an obligation to return or refund the money. b. The right to receive and appropriate in the case of Respondent arose at the time the project is completed by it. Such performance would be evidenced by obtaining the occupancy certificate and handing over of possession of the property to the purchasers. Till such time the performance remain incomplete (and the possession thus not handed over), there would be an inherent liability to repay the moneys advanced by the prospective customers. This liability gets exhausted / extinct only on completion of projects. It is only at that point of time therefore that the income is to be recognized. c. Even the test of accrual would mean that there has to be a legal debt in favour of an assessee. In Respondent's case as long a....
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....ecognised in Income Tax Law which is not prohibited u/s 145 of the Act. The Tribunal has also decided on the applicability of Accounting Standard AS 7 and held that the same applies to pure contractors. It was held that Developers are also not precluded from following Completed Contract Method of Accounting. Extending the same rationale in the present case, the Assessee who is neither a Contractor and nor a developer, but a landowner cannot be compelled to follow Percentage Completion method. 6.34 The Ld. A.R. submitted that the learned CIT(A) after verifying the detailed submissions, had allowed the appeals filed by the Respondent holding that the sale of flats (received under Development Agreement) are to be taxed in the year of execution of sale deed and not in the year of advances received and prayed that the same to be confirmed. 7. We have heard the rival submissions and perused the materials available on record. In the present case, the assessee interalia being owner of the land owned land measuring about 20 acres and 9 guntas at Thanichandra, K.R. Puram, Bengaluru East. This land has been shown as fixed asset in the books of accounts of the assessee in the assessment ....
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....hich shall be constructed by utilizing the minimum permitted FAR/FPI available on the scheduled property from time to time. On execution of agreement, the assessee has granted to the developer a license to enter upon the scheduled property for the purpose of guarantee the development and construction thereon as per this agreement. The assessee also executed a power of attorney in favour of the developer in respect of scheduled property authorising the developer to inter-alia apply for and obtain various permissions required for development of the scheduled property. As per Development Agreement dated 2.9.2010, the obligation of the owner (assessee) which is placed at assessee paper book page Nos.185 to 223 (page Nos.193 & 201) is as follows:- "9. OBLIGATIONS OF THE OWNER: 9.1 The Owner shall sign arid execute necessary applications, papers, and documents and do ail acts, deeds arid things as the Developer may lawfully require in order to give effect to the provisions of this Agreement. 9.2 The Owner shall not create any mortgage, charge, lease, lien or other encumbrance in respect of the Schedule Property during the currency of this Agreement. Pr....
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....erty from time to time to the individual purchasers of premises in the Residential Building(s) proposed to be constructed on the scheduled Property." 7.2 The Obligation of Developer is as follows:- "10, OBLIGATIONS OF THE DEVELOPER 10.1 Simultaneously on the execution of this Agreement, it will be the responsibility of the Developer to apply for and obtain all necessary permissions required for development of the Schedule Property. 10.2 The Developer shall be responsible lot complying with all statutory and regulatory requirements for the development and construction of the Residential Building(s). 10.3 The Developer shall take the lead in the development of the Project 10 4 The Developer shall be responsible for development of the Project al its own costs and shall be responsible for arranging for the necessary funding. 10.5 The Developer shall be responsible for taking necessary Insurance policies relating to the development being carried out on the Schedule Property and shall keep the insurance policies in full force and effect at all times upto the completion of the construction of the Residential Building(s) on the Sched....
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.... be transferred to the accounts of the Owner and the Developer at the end of the said period." 7.4 Correctness of accounts is stipulated in clause 17 as follows: 17. ACCOUNTS OF THE PROJECT 17.1 The Developer shall maintain books of accounts as per the generally accepted accounting principles, procedures, and practices in India, which have been consistently applied, The Developer shall account for the entire revenue and cost of development in its books of accounts as per the method of accounting followed by the Developer. 7.5 Settlement between owner (assessee) and developer is as follows:- 18. SETTLEMENT 18.1 All proceeds received from sale of the units and other receivables from the prospective customers in relation to the Residential Buildings shall be in the name of the Developer_ A monthly settlement shell be carved out between the Parties, and the Developer will pay to the Owner, the Owner's Revenue Share as provided in clause 4.1 subject to deductions / adjustments of the interest free Refundable Security Deposit as provided in clause 149 and clause 21 below and necessary taxes 7.6 Commencement and completion of project as per....
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....e 5 of development agreement (PB 189), which reads as follows: "5. LICENCE TO ENTER UPON THE SCHEULE PROPERTY 5.1 Simultaneously with the execution of this Agreement, the Owner has granted to the Developer and all other persons as may be authorized by the Developer, a license to enter upon the Schedule Property for the purpose of carrying out development and construction thereon in the manner contemplated under this Agreement and for carrying out all activities for the purpose of undertaking and completing the Project and performing all acts, deeds, matters and things incidental of ancillary thereto. Provided however that nothing contained in this agreement or otherwise shall be construed as the grant of possession in part performance of an agreement under the Transfer of Property Act 1882 or under section 2(47)(v) and (vi) of the Income Tax Act, 1961." 7.8 As per this clause, permission given under this development agreement cannot be considered as delivery of possession in part performance of an agreement under TP Act, 1882 or under section 2(47)(v)&(vi) of the Act. 7.9 At this stage, it is appropriate to consider few judgements on this issue of t....
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....ormance of the contract of the nature referred to in section 53A of the Transfer of Property Act" and in the case before Hon'ble Bombay High Court, there was no dispute that the conditions of section 53A were satisfied. In other words, the proposition laid down by their Lordships can at best be inferred as that when conditions under section 53A are satisfied, and when the assessee enters into a contract which is a development agreement, in the garb of agreement of sale, it is the date of this development agreement which is material date to decide the date of transfer. However, by no stretch of logic, this legal precedent can support the proposition that all development agreements, in all situations, satisfy the conditions of section 53A which is a sine qua non for invoking section 2(47)(v). 7.13 In order to invoke the 'principles' laid down by the Hon'ble Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia (supra), it is, therefore, necessary to demonstrate that the conditions under section 53A of the Transfer of Property Act are satisfied. This section is reproduced below for ready reference: "Sec. 53A : Part performance-Where any person contracts to transfer....
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....y of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as a statutory right, is conditioned upon the transferee's willingness to perform his part of the contract in terms covenanted thereunder. Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of s. 53A of the Act has to be absolute and unconditional. If willingness is studded with a condition, it is in fact no more than an offer and cannot be termed as willingness. When the vendee company expresses its willingness to pay the amount, provided the (vendor) clears his income tax arrears, there is no complete willingness but a conditional willingness or partial willingness which is not sufficient. In judging the willingness to perform, the Court must consider the obligations of the parties and the sequence in which these are to be performed......" 7.15 We are in agreement with the views so expressed by the Hon'ble Bombay High Court. It is thus clear that 'willingness to perform' for the purposes of section 53A is som....
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....deration so received and it cannot be said that development agreement cannot be therefore be said to be in nature of contract referred to in section 53A of the TP Act. It cannot, therefore, be said that the provisions of section 2(47)(v) of the Act will not apply in a situation before us. The argument of the Ld. D.R. is that the income of the assessee has to be assessed as business income as the assessee received sales consideration and that amount to be offered to tax under head "business income". In our opinion, income may accrue to assessee without actual receipt of the same. Similarly, assessee actually received the amount without accrual of the income. If the assessee acquires the right to receive the income, the income can be said to have accrued to him, though it may be received later, on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody. There must be, as is otherwise expressed, debitum in praesenti, solvendum in futuro (26 ITR 27). In other words, unless and until a debt is created in favour of the assessee by somebody, it cannot be said that he has acquired a right to recei....
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....sfer has been took place in terms of section 2(47)(v) of the Act. It cannot be said that any income accrued to the assessee once we hold that there is no income accrued to the assessee, there is no question of taxing any amount either as capital gain or as business income, which issue not required to be answered at this stage as the income is not accrued in these assessment years. The quantum of applicability of Accounting Standard-9 with regard to revenue recognition is not required to be decided at this stage. a) In our opinion, this issue has been decided in favour of the Assessee by several decisions of the jurisdictional Hon'ble High Court of Karnataka wherein it has been held that the method of accounting followed by the Assessee which is the project completion method of recognizing revenue is permitted in law and can be followed. The decisions of the Hon'ble Court High Court of Karnataka on this issue are as under - i) CIT v. Banjara Developers & Constructions P. Ltd. (2020) 425 ITR 673 (Kar.) ii) CIT v. Prestige Estate Projects P. Ltd. (2020) 116 taxmann.com 554 (Kar.) iii) CIT v. S.N.Builders & Developers (2021) 431 ITR 241 (Kar.....
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.... obtaining the sanction of Project plans and other approvals. The Developer shall be entitled to make marginal modifications in the plan, design and layout depending on the exigencies during the execution of construction work without materially affecting the entitlement of the Owner. The Developer shall ensure that maximum permissible F.A.R. is obtained and construction done accordingly. The Developer shall have the absolute discretion in matters relating to the method, manner and design of construction without affecting the design basically. The owner may be consulted and kept informed in this regard. Submission of plans and obtaining sanctions shall be completed within six months from this date and construction shall be commenced thereafter. 3. LICENSE The Owner hereby permits and authorities the Developer irrevocably to enter upon the Schedule Property and develop the same by constructing the Project thereon on the terms and conditions set out herein. Provided, however, that nothing herein contained shall be construed as delivery of possession in part performance of any agreement for sale." 7.17 Thus, it was clear that parties confirm that the owner shall re....
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....h he receives as a member of that family out f the income of that family. If the said HUF has escaped assessment for any year, the ITO, subject to the conditions laid down in section 34(1) of the 1922 Act, may issue a notice thereunder calling upon the said HUF to submit a return of its income for that year and proceed to assess it in terms thereof. It is manifest from a combined reading of the said provisions of sections 3, 14, 2, 22 and 34 of the 1922 Act that the ITO can issue a notice to a HUF under section 34 of the 1922 Act on the ground that it has escaped assessment. In the counter-affidavit filed by the ITO in the High Court, it was stated that he had reason to believe, in consequence of information in his possession, that income, profits or gains chargeable to income-tax had escaped assessment. His information was that, notwithstanding the compromise decree, the members of the family were living together had joint mess and the business was run by the assessee. In short, the case of the revenue was that the compromise was a make-believe one and the family in fact continued to be a joint Hindu family. The exercise of the option to do one or other of the tw....
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....the Act, particularly section 14(1) of the 1922 Act. Therefore, if the assessment proceedings initiated under section 34 of the 1922 Act culminates in the assessment of the HUF, appropriate adjustments have to be made by the ITO in respect of the tax realised by the revenue in respect of that part of the income of the family assessed on the individuals of the said family. To do so was not to reopen the final orders of assessment, but in reality to arrive at the correct figure of tax payable by the HUF. The only question that arises at the time the ITO proposes to take proceedings under section 34 of the 1922 Act is, whether the income has escaped assessment or has been under assessed in the hands of the person against whom the said proceedings are initiated. At this stage, the question of resolving the conflict between the proposed assessment and an earlier assessment made on a wrong person does not arise. Therefore, the High Court went wrong in holding that the ITO had no jurisdiction to initiate proceedings under section 34 against the assessee as the karta of a HUF. Further, the High Court had not expressed its opinion on the question based upon section 25 of the 1992 Act. In th....
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....ion contract method. On same set of facts, now onwards, the department wanted to change the method of computation of income by following percentage contract completion method instead of project completion method. As regards the argument of ld DR that advance received from the prospective buyers vide sale agreement represent the receipts in respect of the contracts undertaken, it was found that this was not supported by facts and figures. The assessee is not a contractor who has undertaken the construction activity. On the other hand, is a land owner who has given the land for construction to M/s. G-Corp Homes Pvt. Ltd.. He is getting his share of constructed area and against which assessee entered into sale agreement with various parties. The sale agreement is different from sale deed. In case of sale deed, the right in property transferred from seller to buyer immediately. However, it does not transfer in case of sale agreement. Sale deed is an executed contract. On the other hand, sale agreement is executory contract. In case of sale deed, seller can sue the buyer for breach of the contract. However, in the case of sale agreement, seller can sue the buyer only for damages but not....
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.... "AS-7 has also made a provision that advances received from customers may not necessarily reflect work performed. Outcome of a contract cannot be estimated reliably, therefore, no profit can be recognized. Clauses of agreement dated 1st March- 2002 prescribe that lease of units agreed to be allotted by assessee to intending allottees become legally en forcible only upon GSRTC approving allotment and uptill that time, there would be no legally tenable transaction by appellant in favour of intending lessee. Such approvals have in fact been granted by GSRTC in F.Y. 2004-05 relevant for A.Y. 2005-06 onwards. Vide order dated 18/5/2004 District Collector has restrained assessee from leasing in any manner whatsoever any of shop in GSRTC project. Therefore, AO has incorrectly applied AS-7 on assessee. Since the assessee can be termed as a contractor as also a developer, therefore Revenue can be recognized in terms of AS-9 guidelines. As per statement made by assessee, completion certificates of respective projects were obtained on 15.3.2005, 10.8.2004 and 31.12.2004. AO is empowered to examine this aspect and in view of guidelines and position of law narrated hereinabove, can take ap....
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....enforceable. Therefore in the absence of any sale agreement or execution of any sale deed it cannot said that accounting standard AS-9 for revenue recognition was applicable in the appellant's case. It may further be stated that the appellant company in earlier A.Y. followed project completion method and in the background of above discussion when AS-7 and AS-9 are prima facie not found to be applicable therefore there was no basis of determination of income by percentage completion method. (Paras 8) Conclusion: In the absence of any sale agreement or execution of any sale deed it cannot said that accounting standard AS-9 for revenue recognition was applicable in the appellant's case. Conclusion: Rejection of books of accounts by application of provisions of sec. 145(3) was not justified when there was nothing on record which may indicate that any item of income was suppressed or any item of expenditure was suppressed or inflated." 8.12 In the case of S.K. Properties Vs. ITO 162 ITD 419 (Bang.) (Trib) wherein held that: "Appellant firm had recognized the income in respect of sale of plots by adopting Completed Contract Method, whereas, the Assess....
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....ot applicable. Accounting Standard-7 has not been specified by the Central Government under s. 145(2). Hence, the AD could not have rejected the accounts under s. 145(3) on the ground that the assessee has not followed the prescribed method of accounting. As per s. 145(1), income is to be computed in accordance with system of accounting regularly employed by the assessee. The assessee was employing regularly the project completion method and the project completion method is an accepted method of accounting. The assessee has changed the method of accounting from project completion method to percentage completion method in the subsequent year. Hence, the change in this year will be revenue neutral. Moreover, the assessee was under the bona fide belief that it was adopting a method of accounting, which was applicable to it as per the expert committee report of the ICAI. This bona fide belief is evident from the fact contained in letter dt. 3rd Sept., 2007 addressed to AO. In view of this, revised AS-7 cannot be applied in the case of the assessee. -CIT vs. Khoday Distilleries Ltd. (ITRC Nos. 19, 20 & 21 of 1993) and H.M. Constructions vs. Jt. CIT (2004) 90 TTJ (Bang) 510 : (2003) 84 I....
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.... 8. In the instant case, admittedly the assessee is following mercantile system of accounting and as per notes to the accounts, the assessee is following completed contract method of accounting for contracts. The aforesaid method of assessment has been accepted by the department in the past and therefore, in view of law laid down by the Supreme Court in Bilahari Investments Pvt. Ltd., the Commissioner of Income-tax (Appeals) as well as the tribunal has rightly held that there was no justification on the part of the assessing officer to change the earlier method adopted by the assessee and to determine the income on estimate basis. 9. The submission made on behalf of the revenue that the directions issued by a bench of this court vide order dated 23-9-2010jn I.T.A.No.36/2006 appears to be attractive at the first blush but on careful scrutiny of the order it is evident that the tribunal has referred to the decision of this court in the case of Skytop Builders (P.) Ltd. (supra) as well as the decision of the supreme court in Bilahari Investments (P.) Ltd. supra and has held that the assessee was following completed contract method which was accepted by the department in .-....
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....e companies are required to adopt and follow the Accounting Standards as prescribed by ICAI. In the event of such prescribed Accounting Standards are not being followed, then, such companies are required to disclose in its Profit and Loss Account and Balance sheet the reasons as prescribed under section 211(3B) of the Companies Act. To put it differently, the Companies Act also provided for deviation from the Accounting Standards also. There is no dispute to the fact that AS-7 effective from 01.04.2003 is applicable to all construction contractors. The objective of AS-7 reads: "The objective of this Standard is to prescribe the accounting treatment of revenue and costs associated with construction contracts. Because of the nature of the activity undertaken in construction contracts, the date at which the contract activity is entered into and the date when the activity is completed usually fall into different accounting periods. Therefore, the primary issue in accounting for construction contracts is the allocation of contract revenue and contract costs to the accounting periods in which construction work is performed. This Standard uses the recognition -criteria establishe....
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....s established in the last accounting period and transferred to the profit and loss account. The said method determines results only when the contract is completed. This method leads to objective assessment of the results of the contract. On the other hand, the percentage of completion method tries to attain periodic recognition of income in order to reflect current performance. The amount of revenue recognized under this method is determined by reference to the stage of completion of the contract." 8.16 In the case of SN Builders & Developers 431 ITR 241 (Karn) "7. Now we may deal with the second substantial question of law. The Tribunal relied upon the decision in the case of Prestige Estate Projects (P.) Ltd. (supra), rendered by it and held that for the Assessment Year 2005-06 the Accounting Standard 7 was not applicable to the real estate developers. Therefore, percentage completion method cannot be thrust upon the assessee and the assessee was right following the project completion method of accounting as per Accounting Standard 9. The aforesaid decision has been upheld by this Court in Prestige Estate Projects (P.) Ltd. (supra). Besides it, once the first....
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....ons made on both sides and have perused the afore-mentioned decisions carefully. On perusal of the afore-mentioned decisions referred to supra rendered by this Court in the case of PRESTIGE ESTATE PROJECTS, BANJARA DEVELOPERS & CONSTRUCTIONS (P) LTD., VARUN DEVELOPERS, S.N. BUILDERS & DEVELOPERS IN ITA 393/2014 AND ITA 739/2018 as well as the decisions of the Hon'ble Supreme Court in EXCEL INDUSTRIES and in BILAHARI INVESTMENTS supra and taking into account the fact that the Revenue itself has recognized the completed contract method for computation of the subsequent Assessment years, that is 2013-2014 and 2014-2015, we answer the substantial questions of law against the Revenue and in favour of the assessee. In the result, the appeals preferred by the Revenue fail and are hereby dismissed." 8.20 In the case of Investment Ltd. Vs. CIT reported in (1970) 77 ITR 533 (SC), Hon'ble Supreme Court held as under:- "assessee is free to employ for the purpose of his trade, his own method of keeping accounts, and for that purpose to value his stock-in-trade either at cost or at market price. A method of accounting adopted by the trader consistently and regularly cannot b....
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....s being posted when money or money's worth is actually received, collected or disbursed. There is secondly, mercantile system in which entries are posted in eth books of account on the date of transaction i.e. on the date on which rights accrue or liabilities are incurred irrespective of the date of payment. 31. Further in the decision of the coordinate Bench, ITAT Allahabad Bench in the case of Mahabir Jute Mills V/s JCIT reported in (2013) 36 Taxmann.com 587 as also on the decision in the case of CIT V/s Advance Construction Company P. Ltd reported in (2005) 275 ITR 30 (Guj), where their Lordships have reiterated position that choice of accounting method lies with that of assessee, the only caveat being that it has to show that the chosen method has been regularly followed. The section is couched in mandatory terms and the department is bound to accept the assessee's choice of method regularly employed except for the situation wherein the AO is permitted to intervene, in case it is found that true income profits and gains cannot be arrived at by the method employed by assessee. Their Lordship's further held that the position of law is further well settled tha....
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.... Manjusha Estates (P) Ltd Vs ITO reported in (2017) 393 ITR 644 (Guj,) adjudicating similar issue i.e. "Whether on the facts and in the circumstances of the case, the Tribunal was right in law in rejecting the project completion method which was followed consistently by the assessee and instead applying work in progress method and taxing 80 per cent. Thereon as net profit? held that "as assessee has followed the method which is consistent considering the decision in the case of CIT v Shivalik Buildwell P Ltd (2013) 40 taxmann.com 219 (Guj))(supra) and CIT Vs. Umang Hiralal Thakur (2014) 42 taxmann. com 194 (Guj)(supra) and therefore this court is are of the opinion that the view taken by the Tribunal and the Commissioner of Income Tax is not correct. Issue decided in favour of assesssee. 34. Further the Hon'ble High Court of Gujarat in the case of CIT v Shivalik Buildwell P Ltd (2013) 40 taxmann.com 219 (Guj.) dealing with the similar issue observed as follows; "On the Revenue's appeal, the Tribunal confirmed the view of the Commissioner of Income Tax (Appeals), however, on slightly different ground, namely, that the assessee being a developer of the project, ....
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....it, it would be rejected, but then such rejection should be based on cogent evidence and should be done with caution. In the present case, the appellant has declared substantial profits on the basis of project completion method in the subsequent years. In construction, the project completion method and percentage completion methods, both have also been recognized by the Central Board of Direct Taxes in the instruction No.4 of 2009 dated June 30, 2009. Therefore, the Assessing Officer is not considered justified in bringing to tax the profit of Rs.1,66,70,811 in the year under consideration, particularly when such profits have already been offered to tax by the appellant in the assessment year 2007-08. The addition of Rs.1,66,70,811 are directed to be deleted". 36. Further the co-ordinate Bench of Ahmedabad Tribunal in the case of Vraj Developers passed in ITA No.19/AHD/2008 which attained finality as it is not challenged by the department before the high forum observed as follows; "The learned Departmental representative supported the order of the learned Assessing Officer and the learned authorized representative of the assessee supported the order of the learned Commissi....
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.... finding of the learned Commissioner of Income-tax (Appeals). In view of the above discussion, we do not find any error in the order of the learned Commissioner of Income-tax (Appeals) and therefore, the same is upheld and the appeal of the Revenue is dismissed. It is reported that the decision of Appellate Tribunal in the case of Vraj Developers (supra) has attained the finality as the said decision is not challenged by the Department before higher forum. In view of the above and more particularly, when it has been found that the assessee is consistently following the accounting system of percentage completion method, which is permissible and accepted by ICAI and the Central Board of Direct Taxes with respect to construction work, it cannot be said that the learned Appellate Tribunal has committed any error/or illegality, which call for the interference of this court. We see no reason to see to interfere with the impugned judgment and order passed by the learned Commissioner of Income tax (Appeals) deleting the addition of Rs.1,66,70,881 which was made by the Assessing Officer on rejecting the accounting system on percentage completion method followed by the assessee. No question ....
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....ich was being regularly followed by it. Though the Assessing Officer had rejected the plea of the assessee, but the CIT(A) while accepting the appeal of the assessee made the following observations:- "It is however not the AO's case that the profits have been distorted by following the project completion method. The impugned order is also silent as regards the position of the books of account. In other words the books have not been rejected, nor any defects pointed out. In the case of CIT vs. Bilahari Investment (P) Ltd (2008) 299 ITR 1 SC, the Apex Court held that the completion contract method adopted by the assessee for chit discount consistently over the years, is not required to be substituted by percentage completion method. In CIT v Manish Buildwell (P) Ltd (2011) 245 CTR 397 (Del), it was enunciated that project completion method is one of the recognized methods of accounting. That it cannot be said that the project completion method followed by the assessee would result in deferment of payment of taxes. Therefore, considering the discussion above, I do not find any merit on the part of the AO to have worked out the income by applying the percentage completion method". ....
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....he existing method". Applying the above said principles to the facts of the present case we find that the assessee before us has been following the systematic method of accounting from year to year which has been accepted by the department and no defects have been pointed out by the department in the method of accounting adopted by the assessee and thus, there is no reason to reject the same. The Hon'ble Delhi High Court in CIT v Manish Buildwell (P) Ltd (supra) had held that "It is well settled that the project completion method is one of the recognized methods of accounting. It cannot be said that the projection completion method followed y the assessee would result in deferment of the payment of the taxes which are to be assessed annually under the IT Act. AS-7 issued by the ICAI also recognizes the position that in the case of construction contracts, the assessee can follow either the project completion method or the percentage completion method. " Where the assessee was following a particular method of accounting consistently, which has been accepted by the department from year to year and in the absence of any defect being pointed out by the Assessing Officer tha....
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....ethod of accounting. Two methods are prescribed in Accounting Standard No.7. They are "completed contract method" and "percentage of completion method". 39. This view was reiterated by the Supreme Court in CIT v. Bilahari Investment (P) Ltd. (2008) 299 ITR 1/168 Taxman 95 with the following observations: "Recognition/identification of income under the 1961 Act is attainable by several methods of accounting. It may be noted that the same result could be attained by any one of the accounting methods. The completed contract method is one such method. Similarly, the proceedings of completion method is another such method. Under the completed contract method, the revenue is not recognized until the contract is complete. Under the said method, costs are accumulated during the course of the contract. The profit and loss is established in the last accounting period and transferred to the profit and loss account. The said method determines results only when the contract is completed. This method leads to objective assessment of the results of the contract. The On the other hand, the percentage of completion method tries to attain periodic recognition of income in ....
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....owner of land and he was entitled to 32% of saleable area only on completion of construction and the deadline of which was 60 months from the date of agreement i.e. from 1.4.2009. The Ld.A.0 also ignored the fact that right to sale its share of constructed area with the assessee was only from April, 2014 onwards and the assessee has offered the revenue for taxation from F.Y 2014-15 onwards as and when the sale deed has been registered. As held by various courts as discussed above that the method of adopting project completion method is not ultra virus and the assessee is free to adopt either the percentage completion method or project completion method with the only rider that it should be consistently adopted and in case of any deviation the effect of profit or loss should be offered to tax as the case may be. Revenue has not disputed this fact that assessee has offered the impugned advances to tax in the subsequent years i.e. from financial year 2014-15 based on sale deed registered which proves that there has been no loss to the revenue. Mere postponement of tax as a result of method employed by assessee has not been viewed adversely by courts so long as the method is regularly ....
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....um Estates Private Ltd. * CIT vs. Aditya Builders - 378 ITR 75(Bom) * Bakshi Vikram Vikas Construction Co. P. Ltd. V. DCIT - 158 Taxman 61 (Del.) * CIT v. V. S. Dempo & Co. Pvt. Ltd. (131 CTR 203)(Bom) * ACIT v. Rajesh Builders (2004-TIOL-88-ITAT-MUM) * Maitri Developers v. ITO (2011-TIOL-472-ITAT-Mum) 8.23 It is pertinent to mention here that recently the jurisdictional High Court in the case of CIT Vs. Varun Developers (126 Taxmann.com 235) (Karn.) held as under:- 5. "We have considered the submissions made by learned counsel for the parties and have perused the record. The first three substantial questions of law are answered in favour of the assessee for the reasons assigned by learned Senior counsel for the assessee in the judgments referred to supra. So far as fourth substantial question of law is concerned, it is pertinent to note that under section 145(1) of the Act, the income chargeable under the head Profits and Gains of Business shall be computed in accordance with either cash or mercantile system of accounting regularly employed by the assessee. The general provision is subject to accounting standards that the Ce....
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....od of accounting is always that of the assessee. As long as the method followed by the assessee is valid and recognised, the department can never force upon the assessee any other method of accounting. b. Even otherwise the Respondent submits that the economic substance of Respondent's transactions and developer's transactions are vastly different. The Respondent is a landowner. Respondent's contribution, role, functions, objectives, risks and responsibilities are significantly distinct from a developer. This being the case, method of accounting adopted by the developer cannot be mechanically applied to a landowner. The Bangalore ITAT in the case of Chaitanya Properties Pvt. Ltd. vs. JCIT in ITA No.52/Bang/2013 has that Completed Contract Method of Accounting is an accepted method of accounting recognised in Income Tax Law which is not prohibited u/s 145 of the Act. The Tribunal has also decided on the applicability of Accounting Standard AS 7 and held that the same applies to pure contractors. It was held that Developers are also not precluded from following Completed Contract Method of Accounting. Extending the same rationale in the present case, the Assessee wh....
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.... be taxable income, they are now precluded, on the principle of "approbate and reprobate", from pleading that the income they derived subsequently by realization of the revived debts is not taxable income. The doctrine of "approbate and reprobate" is only a species of estoppel; it applies only to the conduct of parties. As in the case of estoppel, it cannot operate against the provisions of a statute. If a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. Equity is out of place in tax law; a particular income is either eligible to tax ITA Nos.709 to 712 /Bang/2018 ITA Nos.1142 to 1148 /Bang/2018 CO Nos.88 to 89 /Bang/2018 under the taxing statute or it is not. If it is not, the Income- tax Officer has no power to impose tax on the said income." Hence, mere admission of additional income would not automatically entitle the assessing officer to assess the same, if the assessee disputes the same subsequently with corroborative evidences. 8.29 The Hon'ble Bombay High Court has dealt with this issue in case of Balmukund Acharya (310 ITR 310), wherein it was held as under:- "31.....
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.... An assessee is liable to pay tax only upon such income as can be in law included in his total income and which can be lawfully assessed under the Act. The law empowers the ITO to assess the income of an assessee ITA Nos.709 to 712 /Bang/2018 ITA Nos.1142 to 1148 /Bang/2018 CO Nos.88 to 89 /Bang/2018 according to law and determine the tax payable thereon. In doing so he cannot assess an assessee on an amount, which is not taxable in law, even if the same is shown by an assessee. There is no estoppel by conduct against law nor is there any waiver of the legal right as much as the legal liability to be assessed otherwise than according to the mandate of the law (sic). It is always open to an assessee to take the plea that the figure, though shown in his return of total income, is not taxable in law. The Tribunal, therefore, in our view did not commit any error in directing to fix the correct annual letting value of the premises in question, in accordance with the provisions of section 23 of the said Act with reference to the municipal valuation, although such sum was lower than the figure shown by the assessee in his returns of total income." 8.31. In the instant cases, the Shri M....
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....he Respondent holding that the sale of flats (received under Development Agreement) are to be taxed in the year of execution of sale deed and not in the year of advances received. In view of this, we confirm the order of the CIT(A) in all these years in deleting the addition made by AO. Since we have confirmed the deletion of additions by ld. CIT(A) made by ld. AO, at this stage, we refrain from commenting on the head of income under which the income to be taxed as there is no accrual of income in these assessment years. 9. In the result, the appeals of the revenue are dismissed. 10. Now we will take up CO Nos.17 to 19/Bang/2021 for the AYs 2014-15 to 2016-17. The common grounds of the Cross objections raised by the assessee are reproduced as under:- 1. The learned Commissioner of Income-tax (Appeals) has erred in holding that several legal issues raised by the Cross Objector in the appeal before the learned Commissioner of Income-tax (Appeals) are not to be decided upon in view of the appellant getting relief on the factual issues involved in this appeal. The learned Commissioner of Income tax (Appeals) should have decided the legal grounds also. 2. The Cro....
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....gement number 296341471180918 declaring the total income at Rs.1,85,34,040/- and requested for the withdrawal of the notice u/ s 153A as according to him no document related to him was found during the search proceedings. The assessee was intimated vide letter dated 24.09.2018 that documents were seized in his case as per seized document in folder no. A/MSRIT/01 to 10, and was provided a photocopy of the same. Original Return of income u/s 139(1) was filed by the assessee on 30.09.2014 vide Acknowledgement No. 378916001300914 declaring the total income as Rs. 1,85,34,040/- 11.2 Notice u/s 143(2) of the I T Act, 1961 dated 20.11.2018 was issued and served on the assessee. Notice u/s 142(1) of the Income Tax Act, 1961 dated 30.10.2018 along with an annexure was issued and served on the assessee. In response to the notice issued, the authorized representative of the assessee, Shri Nagin Khincha, CA, attended and submitted details. 11.3 During the course of search and survey actions at the office premises of M/s M S Ramaiah Developers and Builder Pvt. Ltd., a copy of the JDA dated 02.09.2010 entered between M/s G-Corp Homes Pvt. Ltd. and Shri. M R Seetharam was found and seized. ....
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....sists of 14 towers out of which 2 towers are almost completed. The M/s. G-Corp Homes Pvt. Ltd. is responsible for the construction, marketing, sales & the overall completion of the project. 3 towers are under construction. Advances have been received from all the towers. These advances have been accounted in our books as "Advances Received towards booking." According to my understanding till now regarding the revenue share of M/s. GCorp Homes Pvt. Ltd. project, the taxes become due as and when the flats are registered. Today, during the discussions and as explained by you regarding the Department's stand, I agree to pay taxes according to law. Accordingly, I wish to state that as on 31.3.2014, 31.302015 & 31.3.2016, the amount of advances received by me towards booking amounts should be offered to tax on the basis of Percentage Completion Method. The Net income calculated accordingly for this project would be Rs.27,00,00,000/- for the AY 2014-15, Rs.50,00,00,000/- for AY 2015-16 & Rs.25,00,00,000/- for AY 2016-17. I shall be paying the taxes accordingly whenever they fall due and I shall be filing the required Returns of income accordingly. 11.5 In his statement , Shr i....
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....31-132 of paper book filed). In response thereto the assessing officer served a letter dated 24.09.2018 enclosing copy of centralization order. Copy of the centralization order is available at page nos.136-137 of the paper book filed. 12.4 The Respondent filed another letter dated 03.10.2018 filed on 04.10.2018 stating that the facts of transfer of the case was not intimated or informed to the Respondent before issue of notice u/s 153C and that copy of reasons if any for transfer and assignment of case was also not made available to the Respondent prior to initiation of transfer in the Respondent's case. There has been no further response to the Respondent's letter dated 03-10-2018. 12.5 Department's power to assign a case is found in section 127 of the Act. A plain reading of the provisions of section 127 of the Act clearly shows that the relevant authority under the I.T. Act may transfer the case of an assessee from one Assessing Officer to another Assessing Office only after : a) Giving the assessee a reasonable opportunity of being heard and b) Recording the reasons for such transfer 12.6 Under sub section 3 the requirement of providing the assessee a....
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....der is not a valid reason in the eyes of law. The transfer of Respondent's case is therefore invalid and the subsequent assessment order is void-ab-initio. 12.11 The relevant case laws are available at page nos. 1733 to 1781 of the Compilation of case laws filed. 12.12. Impugned order is bad in law for lack of necessary compliances for assumption of jurisdiction U/s. 153C [A] Proceedings u/s 153C in the absence of any incriminating material is bad in law 12.13 As has been submitted earlier, a search action u/s 132 was initiated on 23.08.2016 in the case of M/s MS Ramaiah Developers and Builders P Ltd. It has been stated at para 1 of the impugned assessment order that several documents were seized in the course of the search. It is further stated that 'some documents had a bearing on total income' of the Respondent. Vide letter dated 24.09.2018 the Respondent was provided with copy of the documents seized in the course of above search and which in view of the learned assessing officer had a bearing on the Respondent's income. These seized document on the basis of which proceedings u/s 153C have been initiated in the Respondent's case is nothing but Copy of Development Ag....
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...."person searched" must be satisfied that the incriminating material does not belong to the "person searched" but belongs to "other person" who has to be identified by the AO. b. If "other person" is not identified and AO is satisfied that incriminating material does not belong to the "person searched", then such material cannot be utilized anywhere for the purposes of assessment. c. The second step is that after such satisfaction is arrived at, the documents are handed over to the AO of the "other person". d. The third step is that AO of the "other person" has to segregate the incriminating material, year wise and has to satisfy himself that there are specific incriminating material which will have impact on the determination of total income of the "other person" for that assessment year. 12.19 In the Respondent's case there is no record of any satisfaction recorded by the Assessing Officer who had jurisdiction over the search proceedings. There is also no record of the assessing officer who had conducted search proceedings in the case of searched person of having identified the Respondent as 'the other person' to whom the seized documents belong. The ....
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....ng Officer before he transmits the records to the Assessing Officer who has jurisdiction over such other person. Not furnishing the reasons for satisfaction renders the entire proceedings invalid: * SVK Minerals v. DCIT (2019) 411 ITR 709/ 311 CTR 789 / 184 DTR 36 (Karn.)(HC) * Shyamraj Singh v. DCIT (2019) 411 ITR 709/ 311 CTR 789/184 DTR 36 (Karn.)(HC) 12.23 It may be submitted here that the filing of the return of income in response to notice u/s. 153C and participation in assessment proceedings does not disentitle the Respondent to question the assumption of jurisdiction in the present proceedings. Section 292B and 292BB would be of no use or avail to the department in the matter for the reason that the satisfaction of preconditions U/s. 153C are pre-requisite for assumption of jurisdiction u/s. 153C of the Act and department cannot take shelter u/s. 292B / 292BB of the Act, as jurisdictional defect / lacuna cannot be cured u/s. 292B /292BB of the Act. The following case laws affirm the above proposition of law. * CIT v/s. Norton Motors 275 ITR 595 (P&H); * CIT v/s. Harinder Kaur 310 ITR 71 (P&H); * Srinath Sureshchand Ram Naresh ....