1. This appeal is directed against the order of the CIT(A) dated 21st October, 1991, for the asst. yr. 1988-89.
"1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that the Supreme Court decision in the case of Jamna Prasad Kanhaiyalal vs. CIT (1981) 130 ITR 244 (SC) is not applicable to the cases of return filed under the Amnesty Scheme, 1985.
(2) Without prejudice to the above, the CIT(A) has failed to appreciate the fact that the declarants could not have held the jewellery alleged to have been sold to the firm during May, 1987, to June 1987 when during the search action by the IT Department in September, 1982 the jewellery under reference was neither found at their premises, nor was it mentioned in their depositions. The CIT(A) has thus clearly erred in deleting the addition of Rs. 1,53,02,266 made on accounts of alleged purchase consideration credited to the accounts of the partners and their family members." 3. The assessee in this case is a partnership firm with a leadership position in the line of gold jewellery. For the asst. yr. 1988-89, it filed its return declaring an income of Rs. 33,18,400. It is claimed that in the year of account relevant for the asst. yr. 1988-89 the assessee had made purchases of gold ornaments of Rs. 1,53,02,266 weighing 54,803,250 gms (54,803 kgs.) from the partners of the firm and their family members. In the audit report furnished under s. 44AB, the said purchases were shown as the purchases of old ornaments. However, the purchase memos showed them as new ornaments and they were taken directly to GS-12 Register, which is prescribed under the Gold Control Act for recording the purchase and sale or receipt and disposal of new ornaments. The purchases also indicated payment of making charges at more than the normal rate. As the purchases involved were substantial and from the partners and their family members, it evoked the curiosity of the AO who probed further into the transaction. It was explained before him that the said partners and their family members filed returns for the asst. yr. 1978-79 under the Amnesty Scheme, 1985, in March, 1987 and offered the value of certain jewelleries as income from undisclosed sources under the head "Income from other sources" and the same jewelleries were subsequently sold to the assessee-firm in the year of account relevant for the asst. yr. 1988-89. It was also explained that the amnesty return was filed on the basis of a valuation report which was obtained from a valuer, namely, Donabhai Minawala, on 27th March, 1987. The value of the jewellery as on 31st March, 1978, as appraised by the said valuer was disclosed under the Amnesty Scheme by all the concerned persons whose number was 18. As the valuation reports were obtained by all the concerned 18 persons on the same day, i.e., 27th March, 1987, and they were all valued by the same valuer and all the 18 persons subsequently sold the jewellery to the assessee-firm, the AO thought it fit to probe further and summoned all the 18 persons under s. 131 of the IT Act and in response to these summons, 14 persons were present and deposed before him, while 4 persons expressed their inability to attend, as they were during the relevant time out of India. The findings of the AO in respect of the 14 persons whose depositions were taken are better expressed in his own language and the relevant observations read as follows : "11 ........ An analysis of these 14 persons show that they belong to the family of two brothers, which are as under : The remaining 4 persons belong to the family of his third brother Shri Natwarlal T. Zaveri including his wife, sons and HUF. All those persons who attended in response to summons admitted : (i) they sold the jewellery in question to the firm T.B.Z., Zaveri Bazar, (ii) that the jewellery was acquired by them out of their income from undisclosed sources, (iii) this income was earned during asst. yr.
1978-79, (iv) the income so earned was invested in purchase of these jewellery, (v) this was disclosed under the Amnesty Scheme, 1985 by filing a return for asst. yr. 1978-79 in March, 1987, and (vi) all the persons who sold the jewellery have offered capital gains on such sale of jewellery in their IT returns for asst. yrs. 1988-89.
12. In addition to the information collected above, the following information, in respect of the 14 persons examined was collected, through the statement recorded under s. 131 of the IT Act, and their IT records. It is described as under : (1) Shri Gopaldas T. Zaveri as individual and HUF. - Shri Gopaldas Tribhuvandas Zaveri is son of Shri Tribhavandas Zaveri, founder of this firm. He is 63 years old and is carrying on business as partner in T.B.Z., Zaveri Bazar in his capacity as Kartha of his HUF. His sources of income of the HUF are property income, share of profit from T.B.Z. and interest income. He earns income as individual from valuation fees as an approved valuer. However, this income is quite negligible. It is claimed that both persons i.e., individual and HUF, are assessed to income-tax for the last 40 years in the HUF capacity and from 1964-65 in the case of individual. He claims to have acquired jewellery of 1,709.800 gms. valued at Rs. 96,615 in the HUF case and 3,858.750 gms. valued at Rs. 2,18,090 in the case of individual out of undisclosed sources for asst. yr. 1978-79. The income assessed in the immediately preceding year is Rs. 1,78,808 for HUF and Rs. 5,340 for individual.
(2) Smt. Kamala G. Zaveri. - She is 58 years old and is a housewife.
She is assessed to income-tax since 1982-83 on income from interest.
She is assessed to wealth-tax since 1976-77 and her wealth is jewellery disclosed under VDS Scheme. She had no income till asst.
yr. 1982-83. She claims to have acquired jewellery of 3,939.600 gms, valued at Rs. 2,22,610.
(3) Shri Nirmal G. Zaveri (Individual) and (HUF). - He is 39 years old and is partner in T.B.Z. Zaveri Bazar in HUF capacity since 1978 and as individual partner in T.B.Z. Trading Co. w.e.f. 1984 onwards.
He is assessed to income-tax and wealth-tax since 1975-76 onwards.
Individual earned income from house property, commission, brokerage, speculation in shares and interest and salary income after 1978-79.
As HUF income shown was interest upto asst. yr. 1978-79 and from 1978-79, partner T.B.Z. & Co. Oberoi and in asst. yr. 1979-80 became partner in T.B.Z., Zaveri Bazar.
He claims to have acquired jewellery worth 3,989.600 gms. valued at Rs. 2,25,435 as individual and in the capacity as HUF jewellery 1,567.800 gms. Valued at Rs. 88,705. The last assessed income upto asst. yr. 1978-79 for both individual as well as HUF were negligible.
(4) Smt. Meera N. Zaveri. - She is 33 years old, and is a housewife, She is assessed to tax from asst. yr. 1985-86. She claims to have acquired jewellery worth 3879.800 gms. valued at Rs. 2,50,470 in 1978-79.
(5) Master Samarat N. Zaveri. - He is a minor aged 17 years, presently student. He is assessed to tax from asst. yr. 1986-87. He claims to have acquired jewellery worth 3,969.100 gms. valued at Rs. 2,24,305 in 1978-79.
(6) Miss Priyanka N. Zaveri. - She is a minor aged 15 years, presently student. She is assessed to income-tax from asst. yr.
1986-87. She claims to have acquired jewellery worth 3948.850 gms.
valued at Rs. 2,23,175 in 1978.79.
(7) Shri Shrikant G. Zaveri. - He is 31 years old. He is a partner in T.B.Z. from 1980-81 and assessed to tax from 1978-79 income from interest. He claims to have acquired jewellery worth 1429.350 gms.
valued at 80,795 in 1978-79.
(8) Smt. Bindu S. Zaveri. - She is 26 years old and is a housewife.
She is not regularly assessed to tax, but filed Amnesty Return in 1978-79 and first regular return of income was filed in asst. yr.
1986-87. She claims to have acquired jewellery worth 3,837.950 gms.
valued at Rs. 2,48,210 in 1978-79.
(9) Shri Arvind T. Zaveri. - Both as individual and HUF. He is 60 years old and assessed to tax in HUF capacity since 1959-60 and as individual from 1964-65. The sources of income for HUF share of profit from T.B.Z., Zaveri Bazar, as individual, income from valuation fees and interest income. He claims to have acquired jewellery in the individual capacity jewellery worth 3,909.300 gms.
Valued at Rs. 2,20,950 and as HUF 1,238.900 gam. Valued at Rs. 70,060 in 1978-79.
(10) Smt. Rama A. Zaveri. - She is 52 years and she is a housewife.
She is assessed to tax from 1982-83. The source of incomes interest income. She claims to have acquired jewellery worth 3,869.700 gms, valued at Rs. 2,18,655 in 1978-79.
(11) Shri Vijay A. Zaveri. - He is 30 years old and partners in T.B.Z., Zaveri Bazar since 1981. He had only interest income till 1978-79. He claims to have acquired jewellery worth 1,837.250 gms.
valued at Rs. 1,03,960 in 1978-79.
(12) So far as other four persons belong to/related to Shri Natwarlal T. Zaveri are concerned, the HUF of Natwarlal Zaveri sold 1,959.100 gms., Malli N. Zaveri 3,958.900 gms, Jayshingh Zaveri 2,009.900 and Indrajit N. Zaveri 3889.600 Except for the HUF of Natwarlal Zaveri, no one has single income, prior to asst. yr.
(13) In addition to the personal information relating to these persons all of them have given certain common answers to questions asked to them in respect of acquisition of the jewellery which is summarised as under : (a) All of them have stated that the source of jewellery is out of undisclosed source. However, except Mrs. Bindu S. Zaveri, none of the others could specify the nature of source. Mrs. Bindu, gave an answer that the source was gifts received by her on various occasions.
(b) They could not give the names of the jewellers from whom the jewelleries were purchased in substantial quantity.
(c) All of them have stated that after declaration of those jewelleries, in March, 1987 under the Amnesty Scheme they were given to 'Karigars' for remaking and the remade jewellery was sold to the firm as new ornaments.
(d) It was also admitted by all that there was an action under s.
132 by the IT Department in September, 1982, however, the jewellery under question was not found by the IT Department.
(14) After the above detailed examinations, in the circumstances, leading to the acquisition of the partners and family members of substantial quantity of gold ornaments and their subsequent sale to the firm the following facts emerged.
(a) From the records, it is noticed that the assessee is seldom purchasing readymade gold ornaments in substantial quantity from anyone, other than actual dealers. This the first occasion of such substantial purchase.
(b) The assessee normally purchases standard bars from which jewellery is manufactured by Karigar as per the trend and fashion.
The old ornaments purchased are also converted into standard bars through the Government mint and utilised for manufacturing ornaments.
(c) On verification of the making charges, paid by the assessee to its Karigars, it came to Rs. 5 to 10 per gms. However, the charges paid to the partners and family members were between Rs. 20 to Rs. 25 per gm. The charge paid by the firm for concerned manufacturers is as follows :------------------------------------------------------------------------S. Name of the Date of Weight Majuri Rate ofNo jewellers purchase paid Majuri for------------------------------------------------------------------------(1) Chandrakant 5-3-1987 433.450 1,991 46 jewellers(2) Kharsandas Lakhman 25-4-1987 5,019.650 14,155 120 Jhaveri(3) Kishore Bhimji 4-7-1987 3,114.250 31,115 100 Zaveri (d) All the purchase consideration including making charges are credited to the loan/capital account of these persons, and not paid in cash as is done in respect of other purchases.
(e) It is strange that the jewellery purchased from these persons were exactly the same as per the requirement of the firm for its showroom for sale purposes; it appears that in fact the firm was involved in making these ornaments as per its own requirements.
(f) It is also interesting to note that all the 18 persons got their old ornaments weighing 54 Kgs. which was acquired in 1978 valued from one approved valuer on 27th March, 1987.
On the same day these 54 Kgs. were taken to 8 different Karigars for remaking with instructions to make new jewellery as per their individual requirements. From the examination of the books of one of the Karigars, M/s Arvind Nanubhai Choksi, it was noticed that this Karigars, M/s Arvind Nanubhai Choksi, it was noticed that this Karigar received about 10 Kg. of gold ornaments for the assessee's partners and family members and who in his turn issued this jewellery to 13 different Karigars on 27th March, 1987 itself.
Normally the jewellers start their business around 11 a.m. and the time-lag between all these events is quite nominal.
(g) All the 13 Karigars who received these old ornaments for remaking from M/s Arvind Nanubhai Choksi returned the new ornaments on 31st March, 1987 itself, on which date the Amnesty Returns were filed.
(h) All the 18 members have paid making charges for new jewellery of Rs. 2 per gm. approx, whereas they have received as alleged consideration for labour Rs. 20 to 25 per grams by the firm.
(i) All the 14 persons who were examined did not have independent sources of income of their own, other than shares in the profits of the firm, T.B.Z., Zaveri Bazar to the HUF, during asst. yr. 1978-79 when the jewellery in question was acquired. In fact out of the 14 persons Mrs. Bindu was not a family member of the partners in 1978 having got married in 1982 or so. Miss Priyanka was 1-1/2 year and Master Samarat around 5 years old. All the lady members did not have any source of income and were housewives. S/Shri Nirmal, Shrikant and Vijay were only earning income from salary or occasional income from speculation of shares. S/Shri Gopaldas and Arvind were only getting income by way of share of profit from the firm T.B.Z., Zaveri Bazar prior to asst. yr. 1978-79 in HUF capacity. In individual capacity their income from valuation fees was very negligible.
When all these facts were considered, a conclusion was drawn that this transaction of declaration of additional income by the partners in the form of jewellery under the Amnesty Scheme and their subsequent sale to the firm is a clear device to introduce the assessee's own unaccounted monies in the form of purchase of new jewellery from the partners and family members, who in their own capacity were not in a position to acquire this jewellery during asst. yr. 1978-79 as is evident from the fact that none of these persons were having independent sources to earn income from undisclosed sources. In fact some of them were not even knowing what an income is leaving apart earning it, as they were minors. All of them have stated that they earned income from undisclosed source, but were not able to give the nature of the source, the person from whom the jewellery was purchased. This conclusion is further supported by the fact that though the jewellery was allegedly acquired in asst. yr. 1978-79, it was not found in any person's case during the search on 20th September, 1982. When their residens were searched the jewellery acquired during asst. yr. 1978-79 was 54 Kgs.
and it is quite surprising how such huge quantity can be kept undisclosed to the Department at the time of search. The fact that the entire jewellery of 54 Kgs. was valued by one approved valuer on one day, thereafter this jewellery was sent to 8 different Karigars for remaking also leads to conclusion that this was done to extinguish the identity of the jewellery in the form in which it was disclosed.
One of the Karigars who was examined further stated that the jewellery given to him for remaking on 27th March, 1987 was distributed by him to 13 Karigars at Borivili, on the same day itself and remade jewellery was received by him on 31st March, 1987 from these 13 Karigars. The ploy of remaking of new jewellery from the old jewellery was employed to change the form of the jewellery disclosed, which is evident from the fact that all the Karigars who made the new jewellery were paid negligible amounts for such making as seen from the charges paid by the firm. In fact the firm had these jewellery on the date of declaration in its possession, in the form and fashion existing at that time, which was shown to have purchased from the partners and family members subsequently by creating evidences indicated earlier to give a shape of genuine transaction to this whole show. All these conclusions are tabularised and attached to this order as annexure.
Thereafter, show-cause notice, dated 19th March, 1991 was issued to the assessee asking him to show cause why the value of the purchases of Rs. 15,30,260 should not be added to the income of the assessee, having financed these purchases out of its income from undisclosed sources in view of the following points.
(1) In T.B.Z., Zaveri Bazar, these ornaments were shown to have purchased as newly made ornaments and entered in GS 12. The sellers were paid making charges at very inflated rates though these people are not registered dealers or Karigars.
(2) The sellers claimed to have declared these ornaments under the Amnesty Scheme, 1985 having acquired them out of their income from undisclosed sources. The IT records of the sellers in turn were examined to ascertain the capacity of these persons to acquire the jewellery of sizable value. However, it is seen that most of the persons were minors or ladies having no independent source of income to generate unaccounted income, which can be invested.
(3) It is claimed that these jewelleries were acquired out of undisclosed income. However, the deponents were not able to give the exact nature of the source of income as well as the names of the jeweller from which the jewellery was purchased.
(4) There was an action under s. 132 in the residential premises of the partners of T.B.Z. and family members in September, 1982, however these jewelleries acquired in asst. yr. 1978-79 were not found by the search party at any place. It may be stated that the firm however offered substantial additional income for asst. yr.
1983-84 in the form of all undisclosed stock of gold ornaments.
These items of jewellery are not part of the jewellery disclosed by the firm.
(5) It is also seen that none of the persons have been paid in cash towards the purchase consideration, and the sale proceeds are credited either in their capital account or loan.
(6) From the statement and other relevant evidences collected from them it is noticed that the jewellery weighing about 54 Kgs. was valued by one valuer on one day i.e., 27th March, 1987 determining the value as on 31st March, 1978 and 31st March, 1987.
7. This very jewellery was given on the same day 27th March, 1987 to different jewellers for remaking. The jewellers in their turn gave these jewellery to numerous small Karigars in quantities ranging from 200 gms. to 300 gms. per person on the very day i.e. 27th March, 1987. The Karigars returned them on 31st March, 1987, after making new ornaments. The absence of any time-lag between the various events took place above clearly indicate that the entire affairs are stage managed." 4. In response to the show-cause notice issued by the AO, the assessee raised various contentions which are discussed by the AO at pp. 13 to 19 of his order. The AO, however, rejected those contentions and held that the so-called purchase of gold ornaments worth Rs. 1,53,02,266 are not genuine purchases and, accordingly, added the impugned amount of Rs. 1,53,02,266 to the income of the assessee. The CIT(A) considered the various contentions raised by the assessee before him in respect of the addition of Rs. 1,53,02,266 and found that as the said parties have declared the concerned jewellery in the returns filed under the Amnesty Scheme, there is no case either for doubting the said purchases by the assessee-firm or for making the impugned addition of Rs. 1,53,02,266.
He rejected the contention of the AO that he was justified in enquiring into the genuineness of the purchases on the ground that the immunity granted by the amnesty scheme in question was restricted to the declarants themselves and not to third parties who may enter into transactions with the declarants, as the assessee-firm. He also held that the decision of the apex Court in the case of Jamnaprasad Kanhaiyalal vs. CIT (supra), relied on by the AO and referred to in the ground taken by the Department before us, is not applicable as the apex Court had occasion to interpret the provisions of s. 24 of the Finance (No. 2) Act, 1965 [58 ITR (St) 1] in that case and not the provisions of the Amnesty Scheme.
5. In particular, he referred to a letter, dated 17th June, 1986 addressed by the CBDT, which reads as follows : "This was a reference to the letter, dated 2th February, 1986, addressed by B. P. Bansal & Co., Chartered Accountants to the Chairman, CBDT a copy of which was also handed over to Member (L) while he was on a tour to Kathmandu. It appears that Smt. Sudershan Kumar, wife of Shri Prakash Munjal is being regularly assessed by ITO, C.C.I., Ludhiana under her Permanent Account No. 38-18-PT-4797.
For the asst. yr. 1977-78, she has declared an addition income, amounting to Rs. 90,500, represented by jewellery. It has been stated that : (a) assessment for the year 1977-78 has been regularised by reopening the assessment under s. 148; (b) that additional tax amounting to Rs. 59,730 has been paid before 31st March, 1986; (c) that corresponding wealth-tax returns for the asst. yrs. 1977-78 to 1985-86 by valuing the disclosed assets at the market rates on the relevant dates have been filed; and (d) that the wealth-tax amounting to Rs. 91,286 for the said nine years has already been paid and the assessments have been regularised under s. 17 of WT Act.
(2) It has, however, now been alleged that the AO had required the assessee to adduce documentary evidence for proving that the disclosed investment in jewellery actually pertained to the asst.
yr. 1977-78. It has also been stated that the IT assessment for 1977-78 ...... and the substantive assessment would be made for the asst. yr 1986-87 in terms of s. 69 of IT Act, on the ground that the investment in jewellery remained unexplained. The assessee's application for waiver of penalty and penal interest has also not been disposed of.
(3) This matter was considered in a meeting of the Board which was strongly of the view that if such voluntary returns are made the basis of roving enquiries to find out the date of acquisition of the wealth and substantive assessments are made for years other than the year for which the income has been disclosed within the ITO having any material on the record, it will be absolutely contrary to the spirit of the amnesty that has the blessings of the F.M. In questions 8, 18 and 23 of Circular No. 451, dated 17th February, 1986, it has been made abundantly clear that if a person has disclosed ...... wealth for any particular year, he cannot get away by only paying nominal wealth-tax for that year of subsequent years.
He should also pay the tax on the undisclosed income for the year 1977-78 is reported to have been paid.
(4) Under the circumstances, it is not understood as to why this voluntary disclosure has not been promptly disposed of by the 30th April, 1986, as stated in answer to Q. No. 5 of the same circular.
No penalty proceedings should have been initiated in accordance with the order under s. 119 and the matter relating to waiver of interest etc. should have been disposed of.
(5) You will kindly instruct the ITO not to take rigid views which are in complete negation of the policy of voluntary compliance that has been accepted by the Board." (Illegible portions omitted) 6. In the light of the above letter, the CIT(A) was of the view that the ratio of the decision of the apex Court in the said case of Jamnaprasad Kanhaiyalal (supra) did not apply to the facts of the case.
The relevant portion of his order on this issue reads as follows : "Here three points of distinction come to my mind. Firstly, the Amnesty Scheme is a non-statutory Scheme as opposed to the VDS which was a statutory Scheme. The VDS was a creation of the Parliament and therefore, the meaning of the Scheme had to be found in the words of the statute enacting the Scheme. The Amnesty Scheme on the other hand, was not a statutory creation of the Parliament but was the creation of a number of circulars and instructions of the CBDT. The true import of the Amnesty Scheme has therefore to be understood from such circulars and instructions. As the letter, dated 17th December, 1986, shows, it was view of the CBDT that no inquiry into the true nature and a source of the disclosed amount was to be made unless positive material existed. This is in contradistinction to the interpretation of the Supreme Court of the VDS wherein, as explained earlier, the Supreme Court have said that such an inquiry was possible. The second point of distinction is regarding the invocation of the spirit of the Amnesty Scheme. The same letter shows that the CBDT had stressed that the Scheme should be applied in its spirit. No appeal to such a spirit was made under the VDS Scheme. Lastly it has also to be noted that the interpretation of the Supreme Court of the VDS was prompted by the anxiety to ensure that assessee in the higher income groups should not escape the tax net by arranging disclosures through near relatives. In the case before me such is obviously not the case. It has been pointed out that there is not much difference between the tax borne by the appellant and the tax that could have legitimately acceptable to the Revenue authorities had the disclosure been made by the firm itself.
These three points of distinction show that the ratio of (1981) 130 ITR 244 (SC) (supra) is not applicable in the facts of the appellant's case.
The invocation to the spirit also emerges from the repeated assurances of a liberal treatment promised to the assessees. In this connection Circulars No. 432 and 439 in (1986) 156 ITR (St.) 162 and (1986) 156 ITR (St.) 163 may be seen.
(d) Circular No. 451 [(1986) 158 ITR 135 (St.)] contains the following : "Q. 21. Whether such declaration by the partners could be taken as information by the ITO for initiating proceedings under s.
147(a)/(b) against the firm A. 21 Yes, unless they also choose to disclose the income of the firm. As pointed out earlier, their desire to turn honest must be full and not partial." The above Q/A made it possible for the assessing authorities at the time of the disclosure to use the disclosure of partners as information for the purpose of reopening the assessment of the firm.
In the case of the present appellant partners had made a disclosure and it was possible at the time for the Departmental authorities to take the view that the income sought to be disclosed by the partners was indeed the income of the firm. On this basis the action which the AO is proposing to take now could have been taken in respect of asst. yr. 1978-79 itself. In actuality, however, this was not done.
The returns of the partners were accepted as filed and no repercussion thereof was seen in the case of the firm. This shows that at that time the view of the Departmental authorities was that there was no income to be assessed in the hands of the firm. Having taken this view at that time I do not think it is possible for the AO to take the reverse view now and thus make an attempt to tax in asst. yr. 1988-89 what should have been taxed in asst. yr. 1978-79." 7. The CIT(A) further observed that the entire transaction did not result in any loss to the revenue, and in this context his remarks are as under : "(e) I am also impressed by the argument of Shri D. M. Harish that even if the firm had disclosed additional income in asst. yr.
1978-79 which it could have easily done under the Amnesty Scheme the tax effect would have been the same as that borne by the group now.
Shri D. M. Harish stated that the firm could have disclosed additional income in asst. yr. 1978-79 to cover the gold. The relevant gold ornaments could have been taken out by the partners by debiting their capital accounts. The partners could have paid wealth-tax on it from year to year and they could have sold back the same ornaments to the firm in asst. yr. 1988-89. This arrangement was perfectly feasible under the Amnesty Scheme and had the appellant firm chosen to do so the Department could not have raised any objection to it at any stage. The price of this arrangement, as calculated by Shri D. M. Harish, would have come to approximately Rs. 60 lacs. The AO has not challenged the correctness of this tax computation, since by either route the tax would have been practically the same amount, I see no reason why the AO should attempt to go back on what the Department has already accepted. This is not in keeping with the spirit of the Amnesty Scheme." 8. The CIT(A) has also summarised the various taxes paid by the declarants under the Amnesty Scheme and mentioned that the declarants have paid income-tax for the asst. yr. 1988-89, wealth-tax for the asst. yrs. 1978-79 to 1987-88 and capital gains tax on the sale of the jewellery to the assessee-firm in the year of account relevant for the asst. yr. 1988-89 and also purchase tax under the Bombay Sales-tax Act, 1959, aggregating to Rs. 57,64,659. He also mentioned that the assessee-firm paid purchase tax at 1 per cent under the BST Act, 1959, on the purchases in question of Rs. 1,53,02,266 of Rs. 1,71,386 and thus the aggregate taxes paid by the declarants under the amnesty scheme and the assessee-firm aggregated to a substantial figure of Rs. 59,36,045. As already mentioned, he agreed with the contention of the assessee that even if the amnesty was availed of in the hands of the assessee-firm for the jewellery in question, it would have resulted only in an approximate tax effect of Rs. 60 lakhs. The CIT(A), however, did not give any basis for this working of Rs. 60 lakhs and it is not clear how the amount is worked out. The CIT(A) also summarised the various findings of the AO and the reasons that weighted with the AO for making the addition, as follows : "(a) He has noted that the ladies and minors had no independent source of income to enable them to acquire jewellery in the first instance.
(b) The men only had their share of profit from the firm, property income and interest income in all the past years. There was no other source to acquire jewellery.
(c) Priyanka who was less than 2 years old in the accounting period relevant to asst. yr. 1978-79 and Samarat who was 5 years old at that time have also claimed to have earned income from undisclosed sources so as to be able to invest that amount in the gold ornaments allegedly acquired by them in that year.
(d) All sellers have stereotyped answers to explain how they acquired gold ornaments in asst. yr. 1978-79. All of them have only pointed out to undisclosed sources without making any attempt to throw light upon the possible nature of such a source. Smt. Bindu is the only exception and has stated that she had received these ornaments as gifts.
(e) The name of the jewellery from whom the initial acquisition of gold ornament was made by the sellers could not be given by anyone of them.
(f) Though gold in such a large quantity was allegedly present in the hands of the family from asst. yr. 1978-79 it was not found by the Department in an action under s. 132 which had taken place in September, 1982.
(g) The appellant firm never purchases ready ornaments in any substantial quantity. This is the first instance where the appellant firm has purchased ready ornaments in such a large quantity.
(h) It has been stated that all sellers had converted their old ornaments into new ornaments a little before selling these new ornaments to the appellant firm. The sequence dates involved in the conversion creates doubt about this version.
(i) While the sellers had allegedly paid Rs. 2 to 3 per gm to Karigars as making charges for converting old ornaments into new, the appellant firm had paid the sellers Rs. 25 to Rs. 30 per gm.
towards the making charges.
(j) The alleged price of the gold ornaments was not paid to the sellers in cash but was credited to their accounts maintained by the appellant firm.
(k) the jeweller allegedly purchased by the appellant firm in such a large quantity exactly fitted its requirement. This coincidence is strange." 9. We may mention that the CIT(A) has not controverted the above factual findings given by the AO but he has deleted the addition on the legal ground that the Department should not have gone back on the promise extended to the declarants under the amnesty scheme and also on the ground that the tax effect would be the same even if the amnesty had been available of in the hands of the assessee-firm.
10. Before us, the learned Departmental Representative strongly relied on the order of the AO and pleaded that the CIT(A) has held that the decision of the apex Court in the case of Jamnaprasad Kanhaiyalal (supra), on which the AO has relied, is not applicable to the present case, but the distinction made by him is without substance. It is also pleaded that the remark of the CIT(A) that the attempt of the AO to tax the impugned amount of Rs. 1,53,02,266 in the hands of the assessee-firm violates the spirit of the Amnesty Scheme, is also unwarranted because the Amnesty Scheme does not confer any benefits on third parties. It is emphasised that income has to be brought to tax in the correct hands and any false declaration of income by somebody does not preclude its being taxed in the right hands.
11. The learned counsel for the assessee, on the other hand, strongly relied on the order of the CIT(A). He further emphasised that the assessee-firm had paid purchase tax on the purchase of 54,803 Kgs. of gold in question and the question of payment of purchase tax arises only when purchases are made from outsiders, as in the present case. In the circumstances, it is pleaded that it cannot be held that the purchases are not proved. It is also claimed that if there is any doubt in the matter, the addition should be made in the hands of the concerned declarants under the Amnesty Scheme and simply because the purchases in question are made from the partners and their relatives it does not follow that an addition can be made in the hands of the assessee-firm. In this context, he has relied on the following decisions :Girdhari Lal Nannelal vs. Sales-tax Commissioner (1977) 109 ITR 726 (SC); and 12. It is also claimed that the decision of the apex Court in the case of Jamnaprasad Kanhaiyalal (supra), on which the learned AO relied, is distinguishable, because the declarants under the Voluntary Disclosure Scheme considered by the apex Court in that case did not have any source of income, whereas in the present case the partners of the assessee-firm are doing well and so it is for them to furnish any explanation regarding the gold declared by them or their family members and not by the assessee-firm. It is also pleaded that as the declarants had already declared the gold in their returns and as they had also paid wealth-tax on their declared gold and as the assessee-firm had paid purchase tax on the purchases of gold from them, the assessee-firm has clearly discharged its onus of proving the purchases and any further question in the matter, if at all, can be directed only to the declarants. It is also claimed that it is for the Department to prove that the assessee-firm had made any unexplained purchases of gold and there is no such material with the Department as it is not the case of the Department that the purchases in question are not recorded in the books. It is, therefore, claimed that the impugned addition of Rs. 1,53,02,266 is not warranted. It is also emphasised that the provisions of ss. 68, 69 etc., of the IT Act are not attracted in this case.
13. Having anxiously considered the rival submissions we are of the view that the Department deserves to succeed. The AO has painstakingly enquired into the circumstances relating to the declarations under the Amnesty Scheme by the partners and their relatives and the version of subsequent purchase of the gold from them by the assessee-firm. The entire story suffers from strange coincidences. The entire gold was bought by the assessee-firm in the same year from all the 18 persons.
Actually, what was bought by the assessee-firm were new ornaments, even though it is not in the normal course of the trade of the assessee-firm to buy such ornaments from outsiders. All the 18 declarants availed of the Amnesty Scheme and, surprisingly, all of them got their gold valued on the same day, i.e., 27th March, 1987, from the same valuer and that too, all of them declared the jewellery for the same assessment year, i.e., 1978-79. Further, all of them got the gold converted into new ornaments and the assessee-firm paid majoori charges to all the 18 parties from whom it purchased the gold. All of them, except one, i.e., Smt. Bindu S. Zaveri, mentioned that the gold was acquired out of their undisclosed incomes. Only Smt. Bindu Zaveri said that she received the gold by way of gifts. In other words, none of the other declarants had any source. Further, none of them could give the address or particulars of the jeweller from whom they purchased the gold or jewellery which they declared. In none of the premises of the partners, the gold was noticed in a search action that was conducted on the firm and its partners in September, 1982. Further, shortly before selling the ornaments to the assessee-firm, all of them took their gold to the Karigars on the same day. Some of the declarants under the Amnesty Scheme are even minors, like Master Samarat N. Zaveri and Miss Priyanka N. Zaveri. It is surprising that all of them acquired the gold out of undisclosed sources in the year of account relevant for the same assessment year, i.e., 1978-79. It is equally surprising that all of them sold it after getting it converted into gold ornaments in the same year to the assessee-firm. It is also surprising that not one of them was paid the purchase money in cash by the year end and all of them were only credited with the purchase consideration in the books of the assessee-firm. All these common features cannot be simple coincidences.
That the entire affairs is a tax planning device is writ large on its face. Now the only question is whether the Department, while processing the return of the assessee-firm for the asst. yr. 1988-89, could go behind the returns filed by the declarants in question under the Amnesty Scheme, 1985, for the asst. yr. 1978-79. As already mentioned, the Department's stand is that it so entitled in view of the decision of the apex Court in the case of Jamnaprasad Kanhaiyalal (supra). The CIT(A) negatived the contention on the ground that this decision of the apex Court does not apply to the returns filed under the Amnesty Scheme. We are not convinced about the reasoning of the CIT(A) in this regard. We do not see how the assessee-firm can get out of the ratio of this decision. There is nothing in the Amnesty Scheme, 1985, which conferred any explicit or implicit benefit on third parties. The benefits under the scheme are restricted only to the declarants.
14. In this regard we do not see any difference between the Voluntary Disclosure Scheme, 1965, considered by the apex Court and the Amnesty Scheme, 1985. Simply because the Voluntary Disclosure Scheme is a statutory scheme and the Amnesty Scheme is a creature of Board's circulars, it does not follow that there is any material difference between the two in respect of the applicability of the said decision of the apex Court. The AO has relied upon question and answer No. 11 in Circular No. 451 of the CBDT on the scope of the Amnesty Scheme which has been reproduced by the CIT(A) at p. 10 of his order and reads as follows : "Q. 11. Whether ladies and minors can avail of the immunity given by the circulars A. 11. Yes. In respect of their own income or wealth certainly. But tax-payers who try to introduce black money and benami investments in the names of ladies or minors will be doing so at their own risk." 15. The CIT(A) commented upon the scope of the above circular in the following terms : (p. 10) "It is necessary to correctly understand the import of this Question and Answer. Accordingly to me the risk mentioned in it arises to the concerned tax payer out of the Department's ability to show that truth of the matter by marshalling independent evidence. This risk cannot arise by the Department's attempt to throw doubt upon the amnesty disclosures of the ladies and minors. That attempt as explained by the CBDT letter dated 17th June, 1986, is ruled out as it violates the spirit of the Amnesty Scheme. Q/A No. 11 and the letter of 17th June, 1986, can be reconciled in the following manner. When a lady or a minor has filed a return under the Amnesty Scheme, it has to be accepted without any roving inquiries unless concrete material is available with the AO. If another taxpayer has introduced his unaccounted money through such a return of a lady or a minor and if the Department has independent evidence to show that unaccounted money belonged to the taxpayer, then the Department can tax the taxpayer in respect of that money again. The taxpayer cannot be heard to say that a certain lady had already paid tax on that money. The important point here is that in order to tax such money in the hands of the taxpayer the Department must have independent and positive evidence which must, of necessity, lie outside the sphere of roving inquiries into the capacity of the lady to earn the income etc. Thus, in the present case, if the Department had been able to marshal specific positive evidence that the gold ornaments were really owned by the firm all along. I would have agreed that the Amnesty returns of the ladies etc., would not have helped the appellant firm. I must stress that evidence for this purpose would have to come from sources external to the affairs of the ladies and minors. Roving inquiries into these affairs are not to be permitted to enable the Department to gather negative evidence. Such roving inquiries have been specifically barred by the CBDT. In the instant case I notice that the Department does not have any such positive evidence gathered from an external source. Its attempt has been only to discredit the amnesty returns filed by the ladies and minors." 16. We have already extracted the contents of the CBDT's letter, dated 17th June, 1986 referred to by the CIT(A) in the course of his above remarks. We do not see anything in that letter which restricts the power of the Department to enquire into a return filed by a third party in the way the CIT(A) has mentioned. The Board, to our mind, has explicitly cautioned that black money cannot be introduced by taxpayers in the names of ladies or minors in the guise of amnesty returns. The benefits of the amnesty returns are confined to the declarants themselves. In other words, no questions would be asked in their returns but the Department is not estopped in anyway by the terms of the scheme to make all legitimate enquiries in returns filed by third parties who claim transactions with the declarants under the Amnesty Scheme, who may include minors and ladies. We do not see how the Department can accept or reject a version of the assessee that he borrowed money or obtained gold, as in the present case, from the declarants under the amnesty scheme without enquiring into the genuineness of the declarations made by the concerned parties. The CIT(A) has mentioned that the Department can make an addition only if there is an independent evidence of acquisition of gold outside the books without going into the genuineness of the returns filed by the declarants. If there is an independent evidence of acquisition of unexplained gold outside the books, an addition can automatically be made and that does not require any recourse to the amnesty returns filed by the declarants with whom an assessee has dealt or the ratio of the decision of the apex Court in the case of Jamnaprasad Kanhaiyalal (supra). The reasoning adopted by the CIT(A) in this regard, to our mind, nullifies the judgment of the apex Court, which clearly observed as per the head note as under : "Held, (i) That the declaration under s. 24(2) of the Finance (No. 2) Act, 1965, had to relate to income actually earned by the declarant and the Act granted immunity to the declarant alone and not to other persons to whom the income really belonged : (ii) That the finality under s. 24(8) of the Finance (No. 2) Act, 1965, was to the order of the Central Board under s. 24(6) and not to the assessment of tax made on the declarations furnished under the scheme; (iii) That under s. 24(1) the declaration was required to be made in respect of the amount which represented the income of the declarant.
The declaration could not be made in respect of an amount which was not the income of the declarant. If, therefore, a person made a false declaration with respect to an amount which was not his income, but was the income of somebody else, then there was nothing to prevent an investigation into the true source of the amount.
There was nothing in s. 24 of the Finance (No. 2) Act, 1965, which prevented the ITO, if he was not satisfied with the explanation of an assessee about the genuineness or source of an amount found credited in his books, in spite of its having already been made the subject of a declaration by the creditor and taxed under the scheme, from investigating the true nature and source of the credits.
(iv) That the legal fiction created by s. 24(3) of the Finance (No. 2) Act, 1965, was limited in its scope and could not be invoked in assessment proceedings relating to any person other than the person making the declaration under that Act so as to rule out the applicability of s. 68 of the IT Act, 1961.
(v) That, in a case of this description, there was no question of double taxation. Once it was found that the income declared by the creditors did not belong to them there was nothing to prevent the same being taxed in the hands of the assessee to whom it actually belonged.
Held, also, (by Sen and Venkataramiah, JJ.) that the ITO was justified in treating the cash credits appearing in the books of account of the assessee amounting to Rs. 46,250 as the assessee's income from undisclosed sources since the assessee failed to discharge the burden of proof placed upon it under s. 68 of the IT Act, 1961." 17. As already mentioned, the letter of the CBDT, dated 17th June, 1986, does not, to our mind, in anyway whittle down the sweep of the decision of the apex Court. The said letter precludes roving enquiries only in the case of the declarants as to the year of acquisition. It does not confer any benefits on the third parties who ostensibly have dealt with the declarants.
18. The assessee-firm has rested its case both before the CIT(A) and before us on the declarations made by the partners and their family members under the Voluntary Disclosure Scheme. Simply because some gold or jewellery was declared by the said partners and their relatives, it does not automatically follow that the declarations have to be taken as sacrosanct in the case of a third party who has dealt with those declarants. The ratio of the judgment of the apex Court in the case of Jamnaprasad Kanhaiyalal (supra) is clear that the declarations grant immunity from enquiry only to the declarants and not to third parties who have dealt with those declarants. When it is the question of a third party, the AO is entitled to go behind the declaration and see whether the declarants have sufficient or genuine sources of income to support the declarations and if the declarations are found to be false, the third party which has dealt with the declarants has to be answerable in respect of those transactions with the declarants. As already mentioned, the learned counsel for the assessee-firm has not assailed before us the findings of the AO which cumulatively led to the conclusion that the declarations made by the partners and their relatives under the Amnesty Scheme were bogus. The CIT(A) also did not question these findings nor give any findings which are different from those given by the AO. He only held as a legal principle, that the decision of the apex Court in the case of Jamnaprasad Kanhaiyalal (supra) is distinguishable as the declarations by the persons with whom the assessee-firm dealt with were filed under the Amnesty Scheme and not under the Voluntary Disclosure Scheme. We have already mentioned how this finding of the CIT(A) is not tenable and as such we find that the assessee-firm is clearly hit by the ratio of the decision of the apex Court in the case of Jamnaprasad Kanhaiyalal (supra). At first blush, it looks as though this conclusion is unfair to the assessee because the partners and their relatives have already paid tax on the gold declared by them and it seems a case of double taxation to again hold the assessee-firm answerable for the acquisition of gold from those declarants. It would appear that equity dictates that, having accepted the declarations in the case of the partners and their relatives, no further question should be asked about the genuineness of those declarations while doing the assessment of the assessee-firm.
However, this view is contrary to the decision of the apex Court in the case of Jamnaprasad Kanhaiyalal (supra) which has clearly held that a bogus declaration is not a protection to third parties. In this view of the matter, we have to hold that the assessee-firm is hit by the ratio of the said decision of the apex Court.
19. We find that the decisions cited by the learned counsel for the assessee are all distinguishable. They have not dealt with the case of a party dealing with the declaration under the Amnesty Scheme, as in the present case. In the case of Narayandas Kedarnath (supra), the jurisdictional High Court held that in a case where credits stood in the names of partners, the assessee-firm has discharged the onus of explaining the credits and it cannot be further saddled with the responsibility of explaining how the partners acquired the monies represented by the credits. While deciding the issue in favour of the assessee, the jurisdictional High Court observed as follows : "It is true that we are as anxious as the Department to see that there is no dishonest evasion of payment of income-tax, but I take it that there are at least some honest assessees in this State, and we have got also to think of these honest assessees. There may be a genuine case where a partner or a stranger may bring in moneys to the credit of the firm and the partner or the stranger may have come into those moneys by thoroughly dishonest means, but it is not for the firm which is being assessed to satisfy the Department that the moneys which it received from the partner or the stranger were moneys which the partner or the stranger obtained by honest means.
In my opinion that would be throwing too heavy a burden upon the assessee. We do not wish to lay down any general law which should apply to all cases. In most cases it would depend upon the facts actually found. On the facts actually found and strictly confining our decision to the facts of this case we are of opinion that there were no materials on which the Department could have come to the conclusion that these credits represented undisclosed profits of the firm." 20. It may be observed that the jurisdictional High Court has clearly observed that in most cases, the issue would depend upon the facts actually found. We hardly need mention that in that case there are no facts like those found in the case before us which indicate or even prove the existence of an extremely artificial and incredible tax saving device. In the case of Daulat Ram Rawatmull (supra), the apex Court observed that simply because a fixed deposit was there in the name of a son of a partner and was utilised as collateral security and the explanation of the holder of the fixed deposit was rejected, it would not give rise to the inference that the amount actually belonged to the firm. It found that there was no nexus between the primary facts and the conclusions arrived at. In the present case, the primary facts found are all against the assessee-firm, as we have taken pains to indicate hereinabove, and so we are of the view that this case is not of any assistance to the assessee-firm. Similar is the position in the cases of Girdhari Lal Nannelal (supra) considered by the apex Court and Sukhdayal Rambilas (supra) considered by the jurisdictional High Court.
None of these cases, as already mentioned, are indicative of any thought-out manipulative tax saving device. The facts considered by the apex Court in the case of Jamnaprasad Kanhaiyalal (supra) comes, to our mind, nearest to the facts of the present case, as both involve returns filed under concessional schemes granting amnesty and the impact of such declarations on third parties dealing with the declarants.
21. The learned counsel for the assessee argued before us that the assessee did not derive any particular advantage in the present case.
If the gold really belonged to the assessee-firm, nothing prevented it from disclosing it under the Amnesty Scheme, 1985, instead of, as alleged by the AO, getting it declared by the partners and their relatives.
22. It is claimed that the tax effect would have been of the same order. The CIT(A) also mentioned this point and we have already reproduced his comments wherein he referred to the calculation given by the counsel for the assessee-firm who appeared before him, according to which the tax effect would have been of the order of Rs. 60 lakhs, which is more or less the same figure as in the case of the partners and their relatives who had actually declared. Neither the CIT(A) nor the counsel before us has given any basis for working out the tax effect under the alternative arrangement at Rs. 60 lakhs. Assuming that the figure is correct, we find that this is not a strong enough argument in favour of the assessee-firm. The CIT(A) approvingly referred to the plea of the counsel for the assessee before him that the assessee could have declared the same gold in its hands and then withdrew it is favour of the partners by debiting their capital accounts. By this method, at the most, the assessee-firm would have created separate files only in the case of the partners. The partners of the assessee-firm were only five, whereas the declarants, being the partners and their relatives, are of the order of 18. By the method adopted by the assessee-firm, i.e., by declaring the gold in the hands of the partners and their relatives, the assessee-firm had created separate files with separate build up of capital in their hands and the consequential benefit of claiming separate exemption limits in the years to come. At the least, the assessee might have desired in 1987 not to do anything which could cause any suspicion regarding its activities. At any rate, it is not for us to speculate as to the reasons that prompted the assessee-firm to declare the gold of 54.803 Kgs. in the hands of the partners and their relatives and not in its own hands. The question before us is whether the assessee-firm did purchase the gold of Rs. 1,53,02,266 debited in its books. We are of the view that the assessee-firm could not prove the purchases in view of the factors enumerated by the AO we have already mentioned that the learned counsel for the assessee-firm has not advanced any arguments in respect of the various factors enumerated by the AO to infer that the purchases of the gold in question from the said parties were bogus.
23. We have to consider one more aspect of the matter. Catching a clue from a query addressed by the Bench to the learned Departmental Representative, the learned counsel for the assessee-firm has also mentioned that as the gold bought from the partners and their relatives are reflected in its sales or closing stock, the purchases in question could be doubted. In other words, the plea is that if the purchases in question are held to be bogus, corresponding debit for purchases from other parties should be allowed, because the assessee-firm could not have sold without purchasing the gold in question and as it is not the case of the Department that there is no quantitative tally. This argument is plausible but we are of the view that it cannot detract from the validity of the addition made by the AO.24. It has to be stressed that in the present case, the purchases of gold of Rs. 1,53,02,266 represents only credit purchases and not cash purchases. As already mentioned, the accounts of the partners and their relatives from whom the gold in question has been bought have only been credited in the books of the assessee-firm. In other words, no money had flown out of the books by the end of the accounting year towards the purchases. If it had been a case of cash purchases, the argument of the learned counsel for the assessee-firm that in case the purchases from the specified parties are doubted, as an alternative measure, deduction for purchases from third parties for the same extent should be given would have deserved some consideration, but, in the present case, where the purchases are merely on credit basis, no money had flown out of the books and so it was not available for making purchases from third parties. As the gold had admittedly come into the books by way of purchases and no money had flown out of the books towards the purchases in question recorded in the books, it has to be inferred that as the recorded purchases are bogus, the gold has been acquired from the undisclosed income of the assessee-firm held outside the books. As the gold acquired out of the undisclosed income has surfaced in the year of account relevant for the asst. yr. 1988-89, we are of the view that the Department is justified in bringing the value of such gold acquired outside the books to tax in the present assessment year under the provisions of s. 69/69A of the IT Act. Even if the assessee had acquired the gold in one of the earlier years, as it was not disclosed in that year and as it surfaced in the year of account relevant for the present assessment year, we are of the view that the amount has to be taxed in this year.
25. There is an attempt of capital build-up in the hands of ladies, minors and other relatives of the partners of the assessee-firm. The attempt could have been made by the partners of the assessee-firm in their individual capacity or it could have been done by the assessee-firm. Considering the number of coincidences involved in the scheme, we are of the view that the entire scheme has been planned and coordinated by the assessee-firm. In the case of Homi Jehangir Gheesta vs. CIT (1961) 41 ITR 135 (SC) the apex Court held that while deciding an issue, the Tribunal can consider probabilities properly arising from the facts alleged or proved and by doing so the Tribunal does not indulge in conjectures, surmises or suspicions. The apex Court expressed a similar view in the case of Summati Dayal vs. CIT (1995) 214 ITR 801 (SC) and held that the decision of an adjudicating body based on surrounding circumstances and human probabilities is not bad in law and deserves to be upheld. In the case of McDowell & Co. Ltd. vs. CTO (1985) 154 ITR 148 (SC), the apex Court held that colourable devices are not part of legitimate tax planning. Going by the ratio of these decisions, we are of the view that the assessee-firm cannot be dissociated from the scheme of declaration of gold under the Amnesty Scheme in the names of the family members of the partners of the assessee-firm, as different individuals could not have hit upon the same idea of acquiring gold in the year of account relevant for the asst. yr. 1978-79 and declaring such gold under the Amnesty Scheme and getting the gold valued by the same valuer on the same day and filing their returns under the Amnesty Scheme on the same day, i.e. 30th March, 1987, and subsequently getting the gold converted into ornaments through Karigars on more or less the same day and subsequently selling the ornaments to the assessee-firm in the same year of account without the planning, controlling and coordination of a central agency and that agency in the surrounding circumstances appears to be only the assessee-firm. The apex Court has held in the case of Jamnaprasad Kanhaiyalal (supra) that there is no doubt taxation in taxing the person to whom the income actually belonged with the persons who falsely declared them in their returns filed under the Voluntary Disclosure Scheme. That is a risk which an assessee resorting to unfair tax saving devices has necessarily to run and an assessee who has resorted to such devices has to thank himself for it.
26. For the above reasons we uphold the findings of the AO. We set aside the order of the CIT(A) and restore that of the AO.