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Collector of Sales Tax, Bombay State Vs. Parimal Brothers - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSales Tax References Nos. 7 to 14 of 1960
Judge
Reported in(1962)64BOMLR705; 1963MhLJ65; [1962]13STC647(Bom)
ActsBombay Sales Tax Act, 1953 - Sections 14(3), 14(4) and 16(6); Indian Companies Act, 1913 - Sections 230 and 230(1)
AppellantCollector of Sales Tax, Bombay State
RespondentParimal Brothers
Appellant AdvocateN.A. Palkhiwalla, Adv., i/by Little & Co.
Respondent AdvocateV.B. Ganatra and ;Dhanuka, Advs.
Excerpt:
.....of 1953), sections 26(1), 16(6), 14 - liability of transferee-dealer to pay tax which transferor-dealer liable to pay in respect of transferred business--words 'remains unpaid' in section 16(6) whether fixes point of time at which tax becomes payable--whether liability fastened on transferee of business under section 26(1) liability of transferor in respect of business transacted by transferor.;if a transferor-dealer, at the time of the date of the transfer, has failed to discharge any obligation in respect of the business transferred by him, the transferee-dealer under section 26(1) of the bombay sales tax act, 1953, will be liable to discharge that obligation in the same manner and to the same extent as if he was the transferor-dealer himself.;chatturam horilram ltd. v. commr. of..........a given point of time. it does not mean that at that point of time the tax becomes for the first time payable. the provisions of sub-section (6) of section 16 have not the effect of altering in any manner the aforesaid ordinary and plain meaning thereof. in sub-section (6) of section 16, the words 'remains unpaid' occur, but they are not used in connection with fixing the point of time at which the tax becomes payable. on the other hand, that sub-section fixes the point of time at and after which the tax which remains unpaid becomes recoverable as arrears of land revenue. in other words, that sub-section fixes the point of time at which the defaulted amount of tax becomes a debt due to the state. 12. it was also argued that the clause 'the tax shall be paid in the manner hereinafter.....
Judgment:

Tambe, J.

1. These 8 references can be disposed of by one judgment. The dealer who has been assessed to sales tax under the Sales Tax Act, 1953 (hereafter referred to as the Act) is the same person, namely, the firm of Messrs Parimal Brothers, respondents to all these 8 references.

2. The facts giving rise to these references, and the question referred to us are identical in all these references. These 8 references raise a question as regards the interpretation and true meaning of the clause 'any tax payable ....... and remaining unpaid at the time of the transfer' occurring in section 26 of the Act.

3. The facts in brief are : The business was carried on originally by a firm doing business under the name Shroff Parekh & Co. In December, 1952, Shroff Parekh & Co. transferred its business as a going concern to one Mrs. Kusum Mody. On 26th November, 1953, Mrs. Mody in her turn transferred the business as a going concern to the Sunways (India) Private Limited. On 2nd June, 1954, the Sunways (India) Private Limited transferred the business as a going concern to Messrs Parimal Brothers, the respondent to all these 8 references, and since then, it appears that they have been running the business. On 26th April, 1955, notices under section 14 were issued by the Assistant Collector of Sales Tax to Mrs. Kusum Mody, Mr. K. M. Shroff of Messrs Sunways (India) Private Limited, and Messrs Parimal Brothers, calling upon them to show cause why they should not be assessed to sales tax in respect of the following five periods : (1) 1st January, 1953, to 31st March, 1953; (2) 1st April, 1953, to 25th November, 1953; (3) 26th November, 1953, to 31st March, 1954; (4) 1st April, 1954, to 6th May, 1954; and (5) 7th May, 1954, to 1st June, 1954. After hearing them, the Assistant Collector of Sales Tax on 1st June, 1955, passed 8 orders assessing the respondent to tax. For the first three periods, two orders for each period were passed, one relating to the general tax and the other relating to the special tax; and for the last two periods, one composite order for each period was passed in respect of both the taxes. The respondents has been assessed to tax under section 26 of the Act. In due course, all these 8 cases were taken to the Sales Tax Tribunal by Messrs Parimal brothers. On their behalf it was contended that they cannot be held liable under section 26 of the Act in their capacity as transferee of the business inasmuch as neither Mrs. Kusum Mody nor the Sunways (India) Private Limited had been assessed to tax prior to or on the date of transfer of the business in their favour. In other words, the argument was that unless tax has been assessed, it cannot be said to have become payable within the meaning of section 26 of the Act. This contention succeeded before the Tribunal. The Tribunal relying on its prior decision in Mohanlal Brijlal v. The State of Bombay [1956] 7 S.T.C. 295 held that Messrs Parimal Brothers were not liable to be taxed in respect of the aforesaid five periods. At the instance of the Collector of Sales Tax, Bombay State, Bombay, the Tribunal after drawing up the statement of the cases, has referred the following question of law in all these references :-

'Whether on the facts and in the circumstances of these cases, and on a proper construction of sub-section (1) of section 26 of the Bombay Sales Tax Act, 1953, the opponents are liable to pay the tax assessed on 1st June, 1955, for the periods 1st January, 1953 to 31st March, 1953, 1st April, 1953 to 25th November, 1953, 26th November, 1953 to 31st March, 1954, 1st April, 1954 to 6th May, 1954, and 7th May, 1954 to 1st June, 1954 ?'

4. At the outset, it may be stated that Mr. Palkhiwalla, learned counsel for the Collector of Sales Tax, conceded that the respondent was not liable to be assessed to tax for the period 1st January, 1953 to 31st March, 1953, under section 26 of the Act. The liability to pay tax for that period arose under the Ordinance of 1952 and not under the Act. Section 26 therefore had no application to such a liability.

5. Mr. Palkhiwalla contends that 'tax payable' in section 26 means the tax which the transferor-dealer was liable to pay under the Act. If he has not discharged that liability by the date of the transfer, it is 'remaining unpaid at the time of the transfer'. Assessment and quantification of tax is not a condition precedent to the payability of the tax under the Act. The Act requires the dealer, liable to pay the tax, to pay the tax of his own volition. It is only when a dealer does not duly discharge his obligations under the Act an assessment is required to be made for recovery of the tax from such a dealer. Therefore the decisions under the Indian Income-tax Act are of little assistance. On the other had, Mr. Ganatra contends that the expression 'tax payable and remaining unpaid' could only mean tax which has been assessed, and which after demand notice in respect thereof having been issued, has remained unpaid till the expiry of the period mentioned in the notice of demand. Quality of chargeability to tax is entirely different from the quality of payability of tax. A dealer may become liable to pay tax under section 5, but no tax is payable by him unless he is assessed to tax under section 14 of the Act, and payment of the tax is demanded from him under section 16. The payment which a registered dealer makes at the time of filing of the return is not of a tax, but it is only a payment towards the tax. Even when a registered dealer has duly filed a return and paid tax in advance, sub-section (1) of section 14 contemplates making an order of assessment. The Legislature could never have intended to expose an innocent transferee to the peril of being made to shoulder the liability of his transferor, the extent of which he could never have ascertained at the time of the transfer. He referred us to the provisions of section 16 in general and of sub-section (6) of section 16 in particular, in support of his argument. Both Mr. Palkhiwalla and Mr. Ganatra have referred us to certain decisions to which we will in due course advert.

6. We are conscious that we are here dealing with the construction of a taxing statute, and the well settled rule of construction in this respect is that 'all charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties. In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.' (Maxwell on Interpretation of Statutes, 11th Edition, page 278). Their Lordships of the Supreme Court in State of Bombay v. Automobile and Agricultural Industries Corporation, Bombay [1961] 12 S.T.C. 122 have observed :

'If the Legislature has failed to clarify its meaning by the use of appropriate language, the benefit thereof must go to the taxpayer. It is settled law that in case of doubt, that interpretation of a taxing statute which is beneficial to the taxpayer must be adopted.'

7. Bearing these principles in mind, the case will have to be approached. It is an admitted position that neither Mrs. Mody nor the Sunways (India) Private Limited have registered themselves as dealers, filed any returns, or paid any tax, which they were liable to pay under the Act. There was also no assessment and quantification of the tax payable by them at the date of the transfer. It is to be seen whether on the language used in sub-section (1) of section 26, respondent can be held liable to pay the tax which Mrs. Mody and/or the Sunways (India) Private Ltd., were liable to pay. The material part of sub-section (1) of section 26 is in the following terms :

'26. (1) When the ownership of the business of a dealer liable to pay the tax is entirely transferred, any tax payable in respect of such business and remaining unpaid at the time of the transfer shall be payable by the transferee as if he were the dealer liable to pay such tax .....'

8. In our view, sub-section (1) of section 26 enacts a legal fiction. A transferee of a business is made liable to pay tax in respect of the transferred business as if he is the dealer liable to pay tax. The liability fastened on a transferee is made co-extensive with the liability of the transferor to pay tax in respect of such business. That liability arises when the following three conditions are fulfilled : (1) the transfer is of the entire business, (2) the transferor was a dealer liable to pay tax in respect of that business, and (3) the tax payable by the transferor in respect of that business has remained unpaid at the date of the transfer. The section does not say that the transferee shall pay the tax payable by the transferor, but on the other hand, it says that the transferee shall pay the tax payable by the transferor liable to pay the tax. Now, the tax payable by a dealer, liable to pay tax would, in our opinion, include his obligation to pay tax as contradistinguished from a tax debt payable by such a dealer. In our opinion, therefore, the tax payable would mean obligation of a dealer to pay the tax.

9. It is well settled principle that liability to pay a tax arises by virtue of the charging section, and it is not dependent on assessment. Dealing with the charging sections of the Income-tax Act in Wallace Brothers and Co., Ltd. v. Commissioner of Income-tax [1948] 16 I.T.R. 240, the Privy Council observed :

'The rate of tax for the year of assessment may be fixed after the close of the previous year and the assessment will necessarily be made after the close of that year. But the liability to tax arises by virtue of the charging section alone, and it arises not later than the close of the previous year, though quantification of the amount payable is postponed.'

10. Relying on the decision of the House of Lords in Whitney's case [1926] A.C. 37, the Federal Court in Chhaturam's case [1947] 15 I.T.R. 302 held that 'liability to pay tax does not depend on assessment, that ex hypothesi has already been fixed. The assessment order under section 23 only quantifies the liability which is already definitely and finally created by sections 3 and 4 which are the charging sections.'

11. Mr. Ganatra, however, argues that even assuming that 'tax payable' means tax which a dealer was liable to pay, it cannot be said 'to be remaining unpaid' unless notice of demand has been issued, and the date of payment specified in the notice had expired. Very strong reliance was placed by Mr. Ganatra on sub-section (6) of section 16 of the Act in support of this contention. The expression 'tax remaining unpaid' would ordinarily mean tax which has already become payable, has remained to be paid or that has not been paid at a given point of time. It does not mean that at that point of time the tax becomes for the first time payable. The provisions of sub-section (6) of section 16 have not the effect of altering in any manner the aforesaid ordinary and plain meaning thereof. In sub-section (6) of section 16, the words 'remains unpaid' occur, but they are not used in connection with fixing the point of time at which the tax becomes payable. On the other hand, that sub-section fixes the point of time at and after which the tax which remains unpaid becomes recoverable as arrears of land revenue. In other words, that sub-section fixes the point of time at which the defaulted amount of tax becomes a debt due to the State.

12. It was also argued that the clause 'the tax shall be paid in the manner hereinafter provided at such intervals as may be prescribed' occurring in the preamble of section 16 indicates that the section fixes the point of time at which tax becomes payable by a dealer. Briefly stated, the scheme of the Act is : Sales tax is levied on the taxable turnover of a dealer, i.e., a person who carries on the business of selling goods in the State of Bombay, at the rates specified in section 6. Under section 5, the liability to pay tax arises when the turnover of the dealer exceeds the limit specified in the Act. The dealer, liable to pay tax, is required by the Act to apply and get himself registered as a dealer under the Act. Sub-section (1) of section 9 provides that no dealer shall, while being liable to pay tax, carry on business as a dealer unless he has applied for registration within the prescribed period. In the event the registered dealer transfers his business, or the turnover of his business does not exceed the specified limit, he is entitled to apply for cancellation of registration. Section 13 enjoins a duty on the registered dealer to furnish returns of his turnover in the prescribed manner to the prescribed authority, and according to the rules the intervals at which the returns are to be furnished by a registered dealer are monthly returns or the quarterly returns. Section 16 deals with payment and recovery of tax, and not payment of tax alone. Sub-section (2) of section 16 requires a registered dealer to pay into Government treasury the full amount of tax due from him according to his return. Section 14 deals with assessment of tax. Assessment is done for each year, and the year according to the Act is the financial year. At the time of the assessment, if the sales tax authority is satisfied about the correctness of the return filed and the tax paid by the dealer, nothing more is required to be done by him. He only makes a formal assessment order. If the sales tax authority is not satisfied with the correctness of the return, sub-section (3) of section 14 empowers the sales tax authority to issue a notice to the registered dealer to appear before him and produce such evidence and books of account as he requires. After hearing the registered dealer, if he appears, and perusing the material and evidence produced by him, the Sales Tax Officer makes an assessment order as he may deem proper. If the registered dealer fails to comply with the said notice, sub-section (4) of section 14 empowers the Sales Tax Officer to assess the registered dealer to the best of his judgment. In the event the dealer fails to furnish the return within the prescribed time, then sub-section (5) of section 14 empowers the sales tax authority to assess such a dealer to the best of his judgment, after giving a notice to such a dealer. Sub-section (6) of section 14 provides that 'If upon information which has come into his possession, the Collector is satisfied that any dealer has been liable to pay the tax in respect of any period but has failed to apply for registration, the Collector shall, after giving the dealer a reasonable opportunity of being heard, assess to the best of his judgment, the amount of the tax, if any, due from the dealer in respect of such period and all subsequent periods.' If during the course of this assessment, the Collector is satisfied that the dealer has wilfully failed to apply for registration, sub-section (7) empowers him to levy by way of penalty a sum not exceeding one and half times of the tax assessed on such dealer. It would thus be seen that the occasion to make an assessment and make a demand for payment of the tax would only arise if a dealer does not abide by the provisions of the Act either unwittingly or wilfully in the following cases : (1) a dealer duly gets himself registered, files a true return, but fails to pay the amount of tax or part thereof at the time of filing the return [section 16(5)(i)(a)]; (2) a registered dealer files a return, pays the tax according to his return, but fails to satisfy the Collector about the correctness of his return and/or the amount of tax payable by him [section 14(3) and (4) read with section 16(5)(i)(b)]; (3) a dealer after getting himself registered, fails to file a return [section 14(5) read with section 16(5)(i)(b)]; (4) a dealer liable to pay tax, fails to get himself registered either unwittingly or wilfully [section 14(6) read with section 16(5)(i)(b)]. The various provisions discussed above would show that the obligation to pay tax is incurred by a dealer when his turnover exceeds the specified limit and the tax becomes payable by him at that point of time. A duty is enjoined on a dealer to discharge that obligation at the point of time prescribed for filing returns. Sections 14 and 16 only come into play when a dealer fails to carry out his obligations under the Act. The provisions relating to making of an assessment and issuing of a demand notice only relate to the cases of defaulting dealers.

13. For the reasons stated above, in our judgment, if the transferor-dealer, at the time of the date of the transfer, has failed to discharge any tax obligation in respect of the business transferred by him the transferee-dealer would, under sub-section (1) of section 26, be liable to discharge that obligation in the same manner and to the same extent as if he is the transferor-dealer himself.

14. Mr. Ganatra had referred us to the following five decisions : (1) Chhatturam Horilram Ltd. v. Commissioner of Income-tax, Bihar and Orissa : [1955]27ITR709(SC) ; (2) Rungta Engineering & Construction Co. Ltd. v. Income-tax Officer, Central Circle XIII : [1962]44ITR315(Cal) ; (3) In the matter of Recols [India] Ltd. [1953] 4 S.T.C. 271; (4) In the matter of Bihar Bolts and Rivets & Engineering Works Ltd. [1959] 10 S.T.C. 578 and (5) Commissioner of Sales Tax, Orissa v. Sri J. Mohanty [1961] 12 S.T.C. 706. None of these cases except Commissioner of Sales Tax, Orissa v. Sri J. Mohanty [1961] 12 S.T.C. 706 is directly in point. The two income-tax decisions have been relied upon by Mr. Ganatra in support of his contention that though the charging section makes the tax payable, payability only arises on making up an assessment order. The two decisions under the Income-tax Act can hardly be called in aid by the respondent in this case. The scheme of the Sales Tax Act is materially different from the scheme of the Income-tax Act. The rate at which income-tax is payable is not specified in the Act, but is declared every year in the Finance Act enacted each year. The assesses is not enjoined with any duty to pay income-tax in relation to his previous year's income of his own accord, but, on the other hand, all that the assessee need do is to file a return of his income even though the rate at which tax is payable is known to him. Such is not the case under the Sales Tax Act. It casts a duty on a dealer to get himself registered, to file a true and correct return of the turnover of his business, calculate the tax payable by him at the rate mentioned in the Act itself and pay it at the time of filing of the return. It is indeed true that certain observations made in the two cases, viz., In the matter of Recols (India) Limited [1953] 4 S.T.C. 271 and In the matter of Bihar Bolts and Rivets and Engineering Works Ltd. [1959] 10 S.T.C. 578, appear to support Mr. Ganatra's contention, but in our view, reading those observations in the context of the facts of those cases, they can hardly be stated to be of any assistance to Mr. Ganatra. In both those cases, the question which was being considered was at what point of time the sales tax can be said to he a debt due and payable within the meaning of section 230(1)(a) of the Indian Companies Act, 1913, as it then stood. That section provided that 'in a winding up there shall be paid in priority to all other debts - (a) all revenues, taxes, cesses and rates, whether payable to the State or to a local authority, due from the company at the date hereinafter mentioned and having become due and payable within the twelve months next before that date'. The date 'hereinafter mentioned' was the date of winding up order (vide sub-section (5) of section 230 of the Indian Companies Act). The dates on which the assessment orders were made fell within one year preceding the winding up order, but the dates on which the returns should have been filed and tax paid were beyond that period. The learned Judges were considering the question of priority as between the debt due by the company to the State in respect of taxes, cesses, etc., and the debt due by the company to its creditors. It is in this context that it had been held that the tax becomes due and payable within the meaning of section 230 of the Companies Act, on it being quantified by an order of assessment. The learned Chief Justice has made this position clear in In the matter of Recols (India) Ltd. [1953] 4 S.T.C. 271.

'There can be no doubt that section 230(1)(a) of the Indian Companies Act contemplates concrete debts, because it deals with the order in which the debts shall be paid by the liquidator. It can have no concern with mere liabilities of a problematic character or liabilities, unascertained and un-quantified and incapable of present payment.'

15. The aforesaid observations make it abundantly clear that the question which was being considered is the point of time at which the amount due from a dealer becomes a debt recoverable by the State, and in that sense, it has been held that the amount of tax becomes a debt due and recoverable when it has been ascertained, quantified and notified to the assessee with a demand for payment. With this proposition, with respect, we have no quarrel. We have already stated that under sub-section (6) of section 16, such also is the position; but we are not here considering the question as to at what point of time the amount of tax becomes a debt recoverable by the State, but we are considering at what point of time the tax becomes payable as contradistinguished from recovery of it as a debt due to State under the scheme of the Act. These two decisions also, therefore, in our opinion are of no assistance to Mr. Ganatra. It is indeed true that the decision in Commissioner of Sales Tax, Orissa v. Sri J. Mohanty [1961] 12 S.T.C. 706 which relates to the construction of sub-section (1) of section 19 of the Orissa Sales Tax Act, 1947, which appears to be similarly worded to section 26 of the Act, to a certain extent supports the view canvassed by Mr. Ganatra. With respect, for the reasons stated above, we are unable to follow the line of reasoning adopted by the learned Judges in this case. It may be stated that dealing with a similar provision of the Bengal Finance (Sales Tax) Act, 1941, the Calcutta High Court in Phoolchand Dharamchand v. State [1952] 3 S.T.C. 460 had taken a different view. This decision does not appear to have been noticed in Commissioner of Sales Tax, Orissa v. Sri J. Mohanty [1961] 12 S.T.C. 706.

16. It is next contended that the respondent is not liable to pay any tax prior to 26th November, 1953, the date on which the Sunways (India) Private Ltd., purchased the business from Mrs. Mody. In other words, it is the contention of Mr. Ganatra that the respondent is not liable to pay tax relating to the business conducted by Mrs. Mody. It is the argument of Mr. Ganatra that under section 26 the liability fastened on the transferee is confined only in respect of the business conducted by his transferor, and not in respect of the business conducted by any person other than his transferor. There was no privity of contract between the respondent and Mrs. Mody. The respondent is not therefore liable for the tax due for the period during which Mrs. Mody conducted the business. Reliance is placed on the decision in Rambali Bhuleshwar v. Sales Tax Officer, Recovery 1, Bombay [1961] 12 S.T.C. 595. We are unable to accept this contention of Mr. Ganatra. In our view, on the terms of sub-section (1) of section 26, the liability that is fastened on the transferee of a business is the liability of the transferor in respect of the business transferred by him, and not the tax liability of the transferor in respect of the business transacted by himself. Under sub-section (1) of section 26, the tax liability of Mrs. Mody was fastened on the Sunways (India) Private Ltd., by reason of the transfer of the business effected by Mrs. Mody in favour of the Sunways (India) Private Ltd., on 26th November, 1953. Thus on 2nd June, 1954, the date on which the Sunways (India) Private Ltd., transferred the business to the respondent, the tax payable by the Sunways (India) Private Ltd., in respect of the business transferred by it, consisted of not only the tax liability of the period during which the Sunways (India) Private Ltd., itself conducted the business, but also the tax liability of Mrs. Mody, acquired by the Sunways (India) Private Ltd., and that tax liability has been fastened on the respondent under sub-section (1) of section 26 of the Act. We fail to see how the decision on which reliance has been placed is of any assistance to the respondent. In that case, Rambali Bhuleshwar v. Sales Tax Officer, Recovery 1, Bombay [1961] 12 S.T.C. 595, the question that fell for consideration was whether the purchaser, at a Court auction was liable to discharge tax liabilities of the judgment-debtor, under sub-section (1) of section 26 of the Act, and it has been held that the transaction of change of ownership as mentioned in sub-section (1) of section 26 must be as between dealer and his purchaser, the dealer being referred to as the transferor, and the purchaser having been referred to as the transferee. A Court auction is not a transaction between a dealer and the transferee. On the facts established in this case, there cannot be any doubt that the transfer obtained by the respondent was a transfer from a dealer, namely, the Sunways (India) Private Limited.

17. It has also been contended that the respondent is not liable to discharge the tax liability relating to 1st April, 1953 to 31st March, 1954, inasmuch as the law in force on the date of transfer was not the law in force during the said period between 1st April, 1953 to 31st March, 1954. Reliance is placed on a decision reported in Indian Aluminium Co. Ltd. v. M. M. Dalvi [1957] 8 S.T.C. 58. This contention in this form has not been raised at any time before the Tribunal. It has also no merit. It is true that from 1st April, 1954, the Act had been to a certain extent amended, but that does not mean that any of the provisions of the Act, by reason of the amendments, had been repealed. Prior to the amendment, the taxes imposed were only two taxes, namely, general tax and special tax. After the amendment, the taxes imposed also include one more tax, namely, the purchase tax. No liability in respect of the purchase tax has been fastened on the respondent for the period 1st April, 1953 to 31st March, 1954, and therefore, it cannot be said that the respondent had in any manner been wrongfully taxed.

18. Lastly, it is contended that section 26 has no application at all inasmuch as the transfer by the Sunways (India) Private Limited in favour of the transferee was not of the entire business, but was only of a part of the business. This contention is purely one of fact, and it had not been raised at any time before any of the Sales Tax Authorities or the Tribunal. It cannot, therefore, be said that it arises out of an order of the Tribunal. We have therefore not allowed Mr. Ganatra to advance any argument in support of this contention.

19. For the reasons stated above, the answer to the question referred to us will be in the negative so far as the period 1st January, 1953 to 31st March, 1953, is concerned, and in the affirmative so far as the periods 1st April, 1953 to 25th November, 1953, 26th November, 1953 to 31st March, 1954, 1st April, 1954 to 6th May, 1954, and 7th May, 1954 to 1st June, 1954, are concerned. The respondent shall pay the costs of the applicant, only one set of costs quantified at Rs. 500.

20. Reference answered accordingly.


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