Itta/57/2002 Of K.v.d.prasad Rao v. The Jt.commissioner Of Income Tax

IN THE HIGH COURT FOR THE STATE OF TELANGANAAT HYDERABADWEDNESDAY ,THE SEVENTH DAY OF SEPTEMBERrWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE THE CHIEF JUSTICE UJJAL BHUY,ANANDTHE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY INCOME TAX TRTBUNAL AppEAL NO: 57 OF 2002 Appeal Under Section 260 A of the lncome Tax Act , 1961 aggrieved bythe order dated 31-12-2o01 in r.T.A. No. 336 / Hyd / 99 Assessment year 1995-96 on the file of the court of the rncome Tax Appelate Tribunar , HyderabadBench- B Hyderabad . -Eetwee n: 1. K.V.D. Prasad Rao, plot No. 77 - Died per LRs 2 to 4 2. ^ [Women's Coop. ]Smt. K. Praveen [HOuseing. ]Kumar 5/o. [Society.,- ]t_ate k,v.o. [Ro'adlrlo. ]prasad [S, ][Jubilee Hills ]Rao, ag.a-aboii38 [, ][Hyderabad.]y;;;.,Plot No.77 women's coop. Housing society, Road N-o. za, .lutl r,lerr irrs,Plot No.77 women's coop. Housing society, Road N-o. za, .lutl r,lerr irrs,3 Hyderabad smt. K. Hemalatha - 500033.wo. Late K,v.D. prasad Rao, Aged about 56 years. protHyderabad No. 77, Women's - 500033.Coop. Housing Society , Road- No. 7A , li6iin"f,irr..Hyderabad No. 77, Women's - 500033.Coop. Housing Society , Road- No. 7A , li6iin"f,irr.. 4..Ms. Chaitanya D/o. late K.V.d. prasad Rao, aged about 35 years, plot No. 77.I^9T-ul'" 500033.[Coop. Housing ][Society, Road ][No. ][7A, ]Jrbtie" [r_r1lr, ], nt;juio"o [_]I^9T-ul'" 500033.[Coop. Housing ][Society, Road ][No. ][7A, ]Jrbtie" [r_r1lr, ], nt;juio"o [_] ( Appellate No. 2 to 4 are bro-ught on_record as LRS of the deceased AppelateNo 1 vide C.O. dated 04-Ot_20i7 in ilTAMp No. I ;f 201S )No 1 vide C.O. dated 04-Ot_20i7 in ilTAMp No. I ;f 201S ) .,.APPELLANT \\l) I l:e -ltrint ('.r,,rissio.er or'lnoome Tax , Range - VI, I]uddha Bha'an. Sccuncre rahuil ..RESPONDENT Counsel for the Appellant: M. SRIDHAR Counsel for the Respondent : MS. K. MAMATA CHOUDARY Sr. S.C. for l.T.Dept.Dept. The Court macle the following: OROER .I'HE FION'BLE'IHI., CIIIT-,F IUS-I'ICE UIIAI BHL,YAN AND THE I{)N]BLE SRI IL-STICE C.V.BHASK,{R REDD\'I.T.T.A.No. 57 of 2002IUDGMENT,T'er:L Hut.,L:r':C,L,r t.,,:: :. h :. !,:,I.T.T.A.No. 57 of 2002IUDGMENT,T'er:L Hut.,L:r':C,L,r t.,,:: :. h :. !,:, Fleard Mr. M.Sridhar, leamed counsel for the appellant andI\G. K.Mamata Choudhary leamed Senior Standu.rg C-orurse I for theIncome Tax Depanment appearing lor the responde nt. 2. This appeal has been iiled bv the assessce .1s rhe appellanr-i under Section 260- A o{ the Income a:r Act, 196 I (briefly 'the Act'hereinafter) assailing the legalitv and validin, o[ the orderdated 31..12.2001 passed by thc lncome ['I-ax ]r\ppelhre r\uthoriry,Hyderabad Bench R', Hyderabad (for shon thc ['l'ribunal)]rnI.T.ANo.336/Hrd/ 1999 ior the assessmenr \err. 1')95- 1996. 3. The appeal was admined on 19.08.2C02. [{or.rever, at thetime of admission, substantial qucstions \\ere n()l lranred. We findfrom the paper book that appellanl has prop,rs,:,I rhe followingquestions as substantial questions ()i la$.:a. \X4rether the l'ribtrnal rv.rs corrccr ur l:.. irrconstruing the non comi:,ctirxrn i\rcemcnr Jr. [(,. ]ll. 199{ \\ / x a Jevicc io avoid ta-* and that ihe corxideration of8s.8.26 crorcs received thereunrlcr \\.J^\ nor for therestrictive covenant but x'as a considrration paid foracquisiton of shares ?b. \X4rether the Tribunal. .rtter holding that theconsideradon received under thc non competitionagreement dt. 6.12.L994 u'as for acquirine conrollinginterest in the Companv, l\,as conect in lew in holdingthat the said corsiderarion [q-.rs ]lial',le to c.rpiral gairu ta-xas pan of sale consideration o1' shares contrary to thedecision of the [jurisdicitnal ]Hieh Gun reponed in 115ITR 78 ? 4. Thus, from the above, r.r'e find th.rt rhr. basic question raisedbythe appellant is, whether'Iriburul \\'.rs coni('ct in considering thenon-competition agreement d.rted 06.11.1994 :rs a clevice to avoidtax and that the consideration oi Rs.ti.l6 cr1)rrs received thereunderwas not for the restdctive covenrlnl buL ues I consideration paidfor acquisition of sl-rares. 4. Thus, from the above, r.r'e find th.rt rhr. basic question raisedbythe appellant is, whether'Iriburul \\'.rs coni('ct in considering thenon-competition agreement d.rted 06.11.1994 :rs a clevice to avoidtax and that the consideration oi Rs.ti.l6 cr1)rrs received thereunderwas not for the restdctive covenrlnl buL ues I consideration paidfor acquisition of sl-rares. 5, At this stage, ure mi1\' :1lso nrdrltron th;rt appellant has notalleged any perversity by thc 1'nbtrrr.rl s'hile passing tlre orderdated I1.12.2001. 6. Be that ;rs it r.rur', a-s poilted out by the Tribunal, the entireissue in the ap;-:eal beiore the Tribunal centered aroundcomputation ol capiral qains on the sale of certain shares held bythe assessei' (appel1;rnt) in r\,I,/s. Chamrinar Breweries Limited(briel Iv'CBI' hcreiu.rtrrr). 7. At th..' ri:ler'.rnr point o[ time, assessee s,as the ManagingDirector oi CIBL. I Ic along with certain other co-promorercheld 29,50.CC-1 sharcs in [(BL. ]Assessee and the co-promotersagreed to s.'ll the srritl shares to M/s. Shaw [lVallace ]CompanyLimited (brictlr.'S\\tC' hereinafler)on the basis of cenainagreemenrs. I Lruevcr. sorle of the shares held bythe assessee andthe co-prttnu)rr,ni \\'in, under iock-in-period as per the guidelinesissued br.' tl:.' Sccuritrs.uion and Exchange Board of India (SEBI)and some of the shrn,s .tere under pledge to financial companiesfor lorrrs .rht.rirr.'.1 l,r [( ]lllL 8.tuS r'S \ [('a].onr('rrrlc(l rlt.t the said shares were sold toS\flC or its srrbsidirrl con'rp;rnies @ Rs.ls/- per share. Assessee,/,and the co- irll)ntoi(:r1 had separately received Rs.8.26 crores as non-conlpeting lec i,onr Sti,'C n'hich rvas in the nature of capitalreceipt not exigible to t,rx. ]r n,as funher contended that eventhough the entire share holding of 29,50,000 shares in CBL v,,asagreed to be tramferred to S\\C and its subsidiaries, what could beregarded as actualiv sold during the previous lear relevant to theassessffrent \,car, \\-erl' onlr' the shares which were neither underlock-in-period nor under pledgr'. 9. In thc assessnrcnt procccclings, assessing officer did notaccept such contentions ot thr ,rssessee. Ffu held that the so-callednon-conlpeting fee rcc.'iveil l,r' the assessee and the co-promotercwas actr.nlll' only a p,rrt ot. the srrle consideration. On that basis,assessing otiicer hcld thet thr shlres x.ere sold @ Rs.43l- per shareand not @ 1{s.15l- p('r shrlr-r .rs claimed by the assessee. FIeaccordinglv computecl thi: long tcnn capital gains. FIe funher heldthat nott-ithsurnding tlic lock-irrperiod and the pledge of shares,those mtst br' regaftlcd ls li.rving been sold or trarsferred withinthe rreaning of Section 2('17) of rlre Act as the entire consideration I \\?s rtccived by the xsessee and the co-promoters r'r,ith sharecertiliciltes Lrruig clelivered to the transferees.certiliciltes Lrruig clelivered to the transferees. 10. \Vhen thc' order of the assessing officer was challenged befon' the fust appellate auhority ;.a., C.ommissioner oi IncomeTax (,\ppcals). the first appellate authoriry upheld the decision otthe esscssing officer on both aspects i.e., sale consideration pershare ;rnd rl'rc number of shares sold. It was thereafter thar assesseeiiled hrrrhe r.rppeal before the Tribunal.Tax (,\ppcals). the first appellate authoriry upheld the decision otthe esscssing officer on both aspects i.e., sale consideration pershare ;rnd rl'rc number of shares sold. It was thereafter thar assesseeiiled hrrrhe r.rppeal before the Tribunal. 11. ['['ribr-rn.rl ]iramed rwo questions for considemtion:li) \\l,.erher the revenue was justified in adoptinq rhr salec,rrrridcretion @ Rs.43/- per share for computation of iongl('nrr c.lpital gains on the sale of shares as against tht cl,rinr ot-tir.' rssessc.' that the sale consideration was onh. Rs.15r'- n".sh.rrc ? :rnd iiit [\\herher ]the shares which were under lock-in'p.'ri,rtl orLrn,lrr i.hclqe to financial companies couicl be rtq.rrtlcil aslr.ir',nq bten transferred within tire me.rnirrg of 11. ['['ribr-rn.rl ]iramed rwo questions for considemtion:li) \\l,.erher the revenue was justified in adoptinq rhr salec,rrrridcretion @ Rs.43/- per share for computation of iongl('nrr c.lpital gains on the sale of shares as against tht cl,rinr ot-tir.' rssessc.' that the sale consideration was onh. Rs.15r'- n".sh.rrc ? :rnd iiit [\\herher ]the shares which were under lock-in'p.'ri,rtl orLrn,lrr i.hclqe to financial companies couicl be rtq.rrtlcil aslr.ir',nq bten transferred within tire me.rnirrg of Section 2(+7) of the Act for the pu4roses of computation o[ I()ng temr capital gains in respect o[ the said shares ? 11. Af'ter a thorough examination of all aspects of the matter,l'ribunal [yirle ]the order dated 31,.12.2N1. took the vieu. th.rtassessing officer was [justified ]in quantifying the sale consideration@ [Rs.43/- ][pershare. ][That ][apart, ][it ][was ][also held ][that ][palment]ol' Rs.8.26 crores as non-competing fee in terrns oi theIlo t]-c,rrrrpetition agreement darcd 06.12.1994\\?S part oi the s:leconsideration for transfer of 29,50,000 shares solcl to SWL.'l'ribunal iunher held that the entire transaction rles a shlrntrilrraction entered into onlyto avoid payrnent of thc tax due. l.i. I Iow-eve r, Tribunal held that capital gains tax coulcl not belevicd on the shares under lock-in-period or under pledgc. In otheruords, capital gairu tax could be levied only in rel,rtion ro 11.lCCslt,rres and not on 86,100 shares as was done bt' thc rssessingoffic.'r. Holding that on 11,L00 shares, the rer.enue ues [jtr-stiiicd ]in.rilopting the sale consideration of Rs.+:/- per share, the ntlner uasrcnr-rnded back to the assessing officer to re-complrte the capit:rl gains tax accordingly. On the balance 75,000 shares rurder lock-in-period or tLnder pledge, libeny\\-i1Sqranted t,-, the revenueauthorities to lery capital gains tax in the relevant assessment )earafter expiry of the lock-in-period or after No Objection CrniiicateNOq [was ][received ][from the ] [or ][aiter ][the ][pledee ][uas]released 1.4. Leamed counsel for the appellant srLbmits that rhc TribLuralerredul upholding the decision of the assessinq ofiic.'rtnquantifying the value of each sharc at Rs.4ll instcad o[ thedeclared value of Rs.15l-. In this connecti()n. he h.rs placedre]iance on a decision of the Punjab and I{rnanr llish Crurr inCIT vs. Usha Sabool as well as a decisior.r oi thc Sr.rr-rrtrne [(irurt]rn Shiv Raj Gupta v. CIT2. 15. Refening to the decision ol the Supreme Grun in Shiv RaiGupta v. CIT (2 supra), he submits that Sr,rpr-e-r1,.' [(bun ]hasclarified that commercial expediencv has to be .rdju.iecd irom the/ ("^, view of the assessee and rhlt the Inconrr. ['fax ][)cpartment"t t lzor;; :z+ rrn eos2 12021; [11 ][sr,p..-" ][Corrrt ][Cases ][5S]lzor;; :z+ rrn eos2 12021; [11 ][sr,p..-" ][Corrrt ][Cases ][5S] cannot enter into tirc thicket oir reasonableness oi amounts paid bythe assessee.the assessee. 76. Rellng on the said decision, he further sLrbrnits that pal.,rnentreceived as non-competing fee r,rnder a negative covenant wastreated as a capital receipt till assessment rear 2CO3-04, u,4richcovers the case at hand and therefore, the sarne \ras nor exigible totax. 17. On thp other hand, leamed Senior Standurg Counsel for theIncome Tax Department has taken us through rhe order passed bythe Tribunal and submits that the findings ren.lcrcd by the Tribunalare findings of fact. No question oi lar.v arises on the basis o[ suchfindings returned by the Tribunal, not to sperk oi any substantialquestion of law. That apart, appe llant has nor raised any questionof perversityvitiating the decision ol the ['I-ribunei. ]Therefore, theappeal is required to be dismissed. 18. Submissions made by lean.rec'{ r-rolursel for the panies have \\received the due consideration oi thc Clurr. l II 17. On thp other hand, leamed Senior Standurg Counsel for theIncome Tax Department has taken us through rhe order passed bythe Tribunal and submits that the findings ren.lcrcd by the Tribunalare findings of fact. No question oi lar.v arises on the basis o[ suchfindings returned by the Tribunal, not to sperk oi any substantialquestion of law. That apart, appe llant has nor raised any questionof perversityvitiating the decision ol the ['I-ribunei. ]Therefore, theappeal is required to be dismissed. 18. Submissions made by lean.rec'{ r-rolursel for the panies have \\received the due consideration oi thc Clurr. l II 19. Insofar the iint question framed by the TribunalISconcernecl 2.,,., quantiiication of sale consideration @ Rs.43/- pershareTribunal cramined at length the memorandum ofunderstanding entered into betu,een the assessee and S$(Con 17.C8.1994 and also advened to the frndings retumed by theassessing officer *'orliir.rg out the sale consideration @ Rs.43/- pershare as against Rs.1-5/- pcr share shoum bythe assessee. 20. The findings relrrmerl bvthe assessing officer are as follows: Nol- coming to liabiliry for capital gains, PrasadReo group sold 29.50.000 :rs per deed at the rate ofRs.15l- per sh,ue. fu per the admission, the entiecorxideration of Rs.4.+2,C0,000 has been received anddistributed to 109 inc{ividu,rls as per their number ofshares held. ln .rcldition. Rs.8.26,00,000 paid byS\7Cis distributed to mernben oi rhe group at the rate ofRs.28/ per sharr: during the previous year relevant toAssessmenl Yc.rr 1995-96. Accourt copy of AndhmBank Ac. No. 1il 15 is :rvailable on record showing thercceiprs and .L-srribution of the said receipt tom!'rrbcr5 rr rhe rate of Rs.4i/- per share(Its.1-1 +Rs.28). \ \ / It goes uithout say'iog that t[Le iuup sum arnountof tu.8.26,00,000/- paid in the guise of compensationis cle.rrl1. an off-shoot of transfer of shares andinextric,rblv linked to th!' number of shares. Thisbeng, the c.rse. the .rllcqed compensation wouldpanalie rhe v.riue oi share price imelf. The actions ofthe assessee group /zi-.. assessee being given GeneralPou-er of Attomey b1'all 109 members to undenaketranster oi sheres, Rs.S.26 crores being distributed toall members at fu.2[ per share strongly substantiatethis fact. it can be seid that the assessee/group isresoning to rcduce/,rxricl the ta-x pliabiliry through acoloureble rler.'ice as entmciated in the case ofMc.Dorvell & Co. (15+ ITR i48). 21. J'hereatter. [()r1 ]the rlrrr'sli(,rr oi number of shares transferred,assessins oificer held rrs [ollou's: Nou'. tmnsier of rnovable or immovablepropefties is contl,cll.'d bv Transfer of Properry fut.Under this Act, trrnsfer ol imrnovable properq/ takeplace b1' registr.ltion ol document. But as anexception to cont;rin pi-,ssible misuse for delayingcrpital gains u-x l-iabilitr. n is held that capital gainstari c.rn be levied for p,.rn perl ormance u/s.53 A ofTransfer oi Propern- :\ct. In case of movablepropeft).. tr,usfer is co[rplete u.'hen properry is h.rnde.l or.cr and consideration is received. Share is a[-c'cu]ier [rnovable ][properry transfer ][of ][q-hich ][is]controlled bi' the C-ompanies Act. For shares,srle/ corrtract is complete when tle broker's note isc\CCutcel. Nerv holder is absolute owner of the sharesfor t,hich brolrer note is executed in his favour.Shercs change hundred and drousands of handsheiorc they get registered on oners name in the boolsol the company. But at each sege, the holder Lrhsolute owner, because he enjop the shares in hiscap;rcitY as orrner. h.rnde.l or.cr and consideration is received. Share is a[-c'cu]ier [rnovable ][properry transfer ][of ][q-hich ][is]controlled bi' the C-ompanies Act. For shares,srle/ corrtract is complete when tle broker's note isc\CCutcel. Nerv holder is absolute owner of the sharesfor t,hich brolrer note is executed in his favour.Shercs change hundred and drousands of handsheiorc they get registered on oners name in the boolsol the company. But at each sege, the holder Lrhsolute owner, because he enjop the shares in hiscap;rcitY as orrner. In the present case, our of the sold 29,50,000shares. 21,12,500 are under lockin-period. But the.eller: have received full considerarion fort'rrtire 19.10,000 shares. As per the Memorandum o[L ndcrstending enrcred between K.V.D.Prasad Reo.urtl live holding companies (BLTYERS),rn 11.,.11.1994 page-4, paras-3 &4 it was agreed andn'c<,rrlcti that "in respect of shares r*rich are lock- in-pc r.io.l (2. 1 6,200 +13,9 6,300 -J1,12,500). Mr. PrasadI{.ro & S\\'C rvill jointly malrc endeavours to obtainr lrc \,r [( ])bjection of SEBI for transfer of shares. In',h. .\.('nr the SE.BI, No Objection is recei.r.ed q'ithini 1 I)c. crnber 1994,I\k. Prasad Rao will an-ange toI, irrhu rt h trenster the said shares in favour of bulers.I {Ll'le\. cr.. in case SEBI's No objection is notl',rrrh.orninq rvithin 31" December 1994, N,lr. Pr.rs.rd { i'.ao n'ill alTange for issue of necessary Pox,ers olAttomey/other papen granting the Bryen Votingnghts, rights to Dividen&,/Bonus Shares and otherdghts in respect of the said shares. $"/hen this aspect was put before the assessee, heexplained in his lener dated 16.05.i997 prge-)explained in his lener dated 16.05.i997 prge-)(page 160 of case frL), .h" passing of the futuredividend and voting rights on [ghe ]shares until theshare transfer takes place, will have to be treated as aconsideration for advance amount paid to us." Hedividend and voting rights on [ghe ]shares until theshare transfer takes place, will have to be treated as aconsideration for advance amount paid to us." Herrdded ftuther tlat even if the share transfer;rpplicirtions are signed by us they will be valid onlyior a period of 12 months or dll rhe next bookclosure date, whichever is earlier.ior a period of 12 months or dll rhe next bookclosure date, whichever is earlier. There cannot be any consideration for advancesn'ceived. Passing of funre dividends, voting r(hts.rnd right of transfer tantamount to relinquishment of,rll rights on the shares. \Xhat happens to signed sharetr ensfer applications when the bools are closcd Lsilre ler.ant. As discussed earlier, entry in bools o[ thecompf,n\r is never a rwrtter of concem while ta-ringcepir-al gains on sale of shares.tr ensfer applications when the bools are closcd Lsilre ler.ant. As discussed earlier, entry in bools o[ thecompf,n\r is never a rwrtter of concem while ta-ringcepir-al gains on sale of shares. This being the case after 31" December 199-1,e, en' right in the share is with buyers, except for thech,rnge of name in the books of the companv for asnrell rechnical snag of SEBI's No objection. For ell -- -,pmctical purposes, the ownership with all benelits h.rs bee, transfenrd. Reliance is placed, in addition to theabove facts on Supreme C-oun's decision in the c;rseof CIT Vs. Narang Diary Products (2 1') J IR 478)wher-ein the word 'transfer' has been c'leiLned toinclude 'ito make over possession of propem' toanother, to hand over'. Hence, capital gains areta-xable in the hands of se[ers er.en for the shareswhich are in lock-in-period. Here assessee is holding 86,100 shares ior utichhe received 80,100 X 43:Rs.i/.02.100. cepital eainson v,rhich are taxable". 22. \When this finding of the assessins officc'r [."ras ]cl.ralltngedbeiore the first appellate authority, the tint :rppell.rte rurhoritv heldas iollows: bee, transfenrd. Reliance is placed, in addition to theabove facts on Supreme C-oun's decision in the c;rseof CIT Vs. Narang Diary Products (2 1') J IR 478)wher-ein the word 'transfer' has been c'leiLned toinclude 'ito make over possession of propem' toanother, to hand over'. Hence, capital gains areta-xable in the hands of se[ers er.en for the shareswhich are in lock-in-period. Here assessee is holding 86,100 shares ior utichhe received 80,100 X 43:Rs.i/.02.100. cepital eainson v,rhich are taxable". 22. \When this finding of the assessins officc'r [."ras ]cl.ralltngedbeiore the first appellate authority, the tint :rppell.rte rurhoritv heldas iollows: Funher, coming to the point, n herher c.rpit.ilgains are liable on the shares u'hich .rrr uncler lock- in-period and under pledge, the appell.rnt has subminedbefore the AO that the temr transler or sale in la*'means valid transfer or valid sale ;rnd if there is noperiod and under pledge, the appell.rnt has subminedbefore the AO that the temr transler or sale in la*'means valid transfer or valid sale ;rnd if there is novalid sale,/transfer, no profit or gain c.rn ;rccrue. ThcAO has dislodged the above submbsions oi th.'appellant, basing on the provisions o[ the Transfcr ,;iProperq. Act. As rightll. obsen'ed b1 thc AO thet. .rsper the above Act. in the case ol rnovable prop'r1\'trarLsfer is complete rvhen pr-opertv is h.rnded or er'AO has dislodged the above submbsions oi th.'appellant, basing on the provisions o[ the Transfcr ,;iProperq. Act. As rightll. obsen'ed b1 thc AO thet. .rsper the above Act. in the case ol rnovable prop'r1\'trarLsfer is complete rvhen pr-opertv is h.rnded or er' and consideration is received. Irr thc present clse, outof the 29,50,000 shares sold, 21,12,500 shares u,ereunder lock-in-period and under pledge, but selleshave received full consideration for the entire shares.The appeilant contends that though the sh;rre scripswere handed over, the assessee had no right totrarsfer the shares and the purchasers \verc not in aposition to get the shares transferred Ln their n:rrne. incompany share registen, so as to becorue osnenthereof. I am not in agreement uith the abor.,econtention of the appellant. In this rcgerrl. I de rir.esupport from the C-ommentary ol Sarnp.rth Ireng.rr'sl-aw of Income-tax, *4rerein s'as obsen'ed rel,ring ondre Case l-aw in the cese ol ll:rj:tsiri Rrrbbr'rProduce Co. Ltd. v. CIT (1993) lOi I 1R [(,(,.1 ]th.rr intlre case of ransfer of shrrres for pLuposes ofSection 45 of the Act, as betuecn thc tliulsf L'rols indthe uansferee, the transaction compietc s-hen theshare cerdficates are handed or'.'r. It *;rs .rlsocommented that the mere f,rct thet rhc conrpenl hasnot registered the transier ir-r its b,rols rv,.r1rld [j11q1l1''\']the claim that the transfer tooli plece tlrlv lrter.Funher, as per sub-sec (3) oi Scc.+ of Sak' of GoodsAct "x{rere under a contra.t oi sal..'. thc ptrpenv inthe goods is transferred fi<rm sellcr to the [ru]a r. thecontract is called as sele". [:Luther' .rr sul,-scc (Z) ofSec 2 of Sale Goods Act ['(],rods" ]me:lns [('\-en'kind] ( ( o{ morlable_ properr,v othe_r^th:n actionable claims andnronel' and incltrdes stocks and shares, growinggr.iss....rr fu per the provisions of Sale of Goods Act,Registration Deed s not a necessary criteria. In thiscase. the seller h,u handecl over the delivery of all dreshares, and recei.,ed full consideration from tlebupr. Therefore. iollou-ing the provisions ofTransfer of Properq- Act and Sale of Goods Act, andalso considering the [;ict that the appellant andprcmoters har.e rcceived full sale consideration forentirc 29,50,000 shares. I conclude that ownershipwith all benefits has been transferred and accordingly,the AO k right in levrinq the capital gains for theshares w'hich r,,'erc urder loc k- in- period and alsoturder pledge. In vie*' ol' the ebov'e discussion, in mycon-sidered vien'. rhe so c;rllec'l .ompensadon receivedtow,rrds Restricrit.. [(ir','en:rnt ]is nothing but saleconsideration in respecr of shrrc,s held bythe assesseeand his group encl rh., consideration received ontranster o[ sher-e. und.'r lock- in-period and underpledge shoultl eis,r lle t re;rted under the head capitalgrrins. Thereforc. sincc out of the total shares of, [29,5C,C0C. ][thc ][.rppell.rnr ][r.,'as ][holding ][86,000 ][shares,]the AO is right in conrputing capital gains ar IG.43l-per sharr. s:hich includes value of sale considerationreceived the r'.tr' oi Rs.lS,/- per share. Accordingly, Iuphold the .lecision oi AO in assessing capital gains @ [Rs,27,85,13il- ][as ]agairut [thc ]sum of 8,s.48$771-as adrniued by the appeilant. Appeal fails on thispoint. 23. In the appeal, after considering the pleadings and rivalsubmissions, Tribunal helcl as follols: We are of the vieu. that the Revenue deserves tosucceed on the qr,restion of the saie considerationhaving been r-eceived :rt Rs.4Jl- per share. It isestablished lari' thar simplv because a deed isproduced bv an assessee before the Revenueauthorities in support oi a cleim, Revenue authoritiesneed not necessrrdll'rccept thc same. The Revenuesucceed on the qr,restion of the saie considerationhaving been r-eceived :rt Rs.4Jl- per share. It isestablished lari' thar simplv because a deed isproduced bv an assessee before the Revenueauthorities in support oi a cleim, Revenue authoritiesneed not necessrrdll'rccept thc same. The Revenueneed not close its e\rs to the surroundingcircumstances, and they .rre ar libcny to see the realfuybehincl the fag.rcle cre.rted bv the assessee as a taxsaving me.rsure. r\cturllv. tli:t is rhe dury cast on theRevenuc. For this proposirion, *.e need not gobeyond the decision of Apcr C,oun in the case ofCIT Vs Dursa Prasad l\Iore (32 ITR 540) wherein,circumstances, and they .rre ar libcny to see the realfuybehincl the fag.rcle cre.rted bv the assessee as a taxsaving me.rsure. r\cturllv. tli:t is rhe dury cast on theRevenuc. For this proposirion, *.e need not gobeyond the decision of Apcr C,oun in the case ofCIT Vs Dursa Prasad l\Iore (32 ITR 540) wherein,as per the relevant portion o[ the head note (82 ITR)it was held x under:it was held x under: that though .rn .lpp.rr(.nr srarement must b€corrsidcrctl rcal LLnril ir r'.rs slro,r.n that there\i'as no rcrsons tr, b.,lic. c thar the apparent waSnot the rcal, ur e ,.'.L.r * hcrc a parry [.relied ]onselt-sen'ing rtcit.rls in tlrcunrents, it was forthat panv to cstahli.h th,. truth of those recitals, the tlxing .ruthoriries were endtied to look inLothe surrouncling circumstances to find out therealiw o[ such recitals.... \\.t.'n \\e look into the surroundingc ir.-. rurLslances. in the present case we are persuadedto accept the stand of the Revenue that the assesseer"esoned to a tax saving ruse by splining the saleconsidcntion for 29,50,000 shares agreed to be soldirto trro components uiq; apparent sale considerationof Rs. t-i,/- per share and non-competing fee workingorn ro fu.28l- per share. that though .rn .lpp.rr(.nr srarement must b€corrsidcrctl rcal LLnril ir r'.rs slro,r.n that there\i'as no rcrsons tr, b.,lic. c thar the apparent waSnot the rcal, ur e ,.'.L.r * hcrc a parry [.relied ]onselt-sen'ing rtcit.rls in tlrcunrents, it was forthat panv to cstahli.h th,. truth of those recitals, the tlxing .ruthoriries were endtied to look inLothe surrouncling circumstances to find out therealiw o[ such recitals.... \\.t.'n \\e look into the surroundingc ir.-. rurLslances. in the present case we are persuadedto accept the stand of the Revenue that the assesseer"esoned to a tax saving ruse by splining the saleconsidcntion for 29,50,000 shares agreed to be soldirto trro components uiq; apparent sale considerationof Rs. t-i,/- per share and non-competing fee workingorn ro fu.28l- per share. 'lhe letter of intent for seaing up CBL wasobt.rinetl .rs early as in July t975, bw the saidcomp.ln\. could commence commercial productiononh on C1.C8. 1 991, that is after a decade and a half. Itrool. su.:h a iong time for the company to be ser upand l,ccome operational. If that is tle normal periodfor ;.'tting up il new unit and if the assessee couldolrt.rin onlr' Rs.4.3 crores for parting with rheconr r>lling interest in the said r.rnit in terms of the\'lcnrrr:nclum of Undentanding dated 17.08.1994, itis in.r'cdiLrie that the assessee received as much :rsRs.E.l6 crores as non-competing fee in terms of theco\'('n.1nr dated 06.12.1994. Even conceding that rhe.1ssc'j\('(' hes acqtLired a new financial muscle on:rcc( lunr ,r[ s.rle oi 29.50 lakhs shares in quesrion. lndalso rir, crpcrtise ,lnd experienqe through the sening up ol [/CBL ]and *rere is a new policy of liberalisationin vogr.re rnaking licenses easier to obtain, it isLnbelicvable thar the assessee and his cGpromorerscould achieve norv in four lean what it took them 14)c.lrs [on the ][e.rrlier occasion, ][to ][not ][on-ly ][srafl ][a ][new]unden;rking but to cause a *reat to M/s. Shaw\X/allace through such an undenaking. We havespecifically queried the leamed counsel for the.]ssessee, during the course of hearing, on hov,. thereis such a wide gap between the ostensibleconsideration paid by M/s. Shaw W'allace foracquidng controlling interest of CBL and the amounrellegedly paid as non-competing fee for warding off afuture potential threat from the assessee and others.\\re did not receive any convincing arswer. Fhs replyuas rh.rt it rvas a matter of agreement berween thepenics and of the thrtat perceprions of M/s. Shau-\\'allace and at any rate the Revenue had no materialto question the genuineness of the C,ovenantdeted 06.12.1994. L+ also referred to the profitpro [jections ]gii.en in the prospectus of GL andj ustif icd the agreement. It is incredible that M/s.Shaw \flallace thought it[it to p.rr'fu.8.26 crores to ward off a possible tfu-eatbr- ..ev oi a nerv beer manufacturing unit in antrnspecified remote future, wherex it had to pa1. onli'Rs.4.l crores to acquire the controlling interest in rn It is incredible that M/s.Shaw \flallace thought it[it to p.rr'fu.8.26 crores to ward off a possible tfu-eatbr- ..ev oi a nerv beer manufacturing unit in antrnspecified remote future, wherex it had to pa1. onli'Rs.4.l crores to acquire the controlling interest in rn existing unit, which had gone into commercialproduction. The argument of the leamed cotLnsel torthe assessee that the projection ol proiits after ta-x iorthe three years, 1993-94 to 1995-96, as appriscd brBan-h of India, and mentioned in the prospectusissued on the eve of public issue b1- CBL :rsmentioned herein above, [justified ]the considerationpaid only adds support to the stand of the Revenucthat the entire consideration received inclui'e of theso-called non-competing fee of Rs.8.26 cror-es [\ras]only for acquiring the controlling interest in CBL asthe company had that much value. The profits o1.CBL present or future, do not lend any sr.rppon to thenon-competing agreement. Same is the posirion $ithr-egard to the possible loss of r',craltv income tcrlvl/s. Shaw [\Wallace, ]if CBL shouid nrarket its onlbrands and terminate the marketing :lnlrnqernellts.Flar.-ing obtained the controlling intercst in [(lll.. ]therhave ensured their royalry income or its eqtLivelentand whyshould theyfunher pay non-compering fee ?The above factors, to our mind. do not lencl anrcredence to the plea of the leamed counsel for th.'assessee that the amount of Rs.8.26 crol-cs \\'.r.stonarrds non-competing fee on\,. and not tou'ard-ssale consideration for the shares agreed to be sold brtlre assessee and his co-promoten. \\ I The so-callcd. correspondence errtercd into bytLeassessee on his behalf and on behali of his cc>promoters with M/s.Shaw \X/allace ro seftle the tenrxof the non-competing covenanr is, as uged b1'theIeamed Depanmental Representati\€, totally a mrrkebelieve. The entire correspondence to our rnindmakes a curious reading. V/e have alreadr. extracted itin extenso hereinbefore. It stans with the lenerdated 10.11.1994 as of the nature of a normalbusiness query from M/s. Shaw Wallace to theassessee, as to the future plans of the promotets. Irstates t}rat tle transaction of the sale oi sharcs hasbeen corhpleted to mutual satisfiction ol both thepanies, and so it would be appropriate thatsubsequent interest of both the panies ,rrc adequ.rteh'protected. In that context, it inquires uherhcr rhepromoters have any intention of emberking on asimilar venture in the near futtLre. The letter pretenclsthat, as on this date rl;. 1C.l 1.199-+ ,\[/s. Shes.Wallace knew nothing and u'.rnted to know' if thepromoters planned to embark on ;r similer tenturt. Irrthe reply dated 15.11.199,1, :xscssee rppr-eci.t..s thcquery regarding the commenccrnent of mr beermanufacturing unit byhim irnd nlcntror)s thai he hadplans to set up a unit for the m.urufacttrre ofaluminum carrs. FIe mentions thet altLnrinrun ..urs .1lcused for canrring beer. fruir [juices ]ald other beverages and are cost effective and are also likely tohave cormnerci;rl appeal. He also mentions that 'in acountrl' like India, s'here consumerism is stiil in itsembryonic stage. i sincerely believe that there is veryhigh potential for canned beer and x,'ith my pastbaciground in the manufacture and sale of beer, Icannot rule out the possibil,iry of mv re-entry into thefield ol' manulacture and marketing of beer at anapprrcpriate time in iuture'. In its replydated 18.11.1994. M,/s. Sharv \X/allace appreciates thedecision of the assessee and its frank expression andin the interest o[ the btsiness of the group theyrequired a firm commitrnent and ass urance by theassessee that he w'ould not either by himself orthrough his tricnds. xsociates etc. start any unit forthe manul acture oi beer encl/or take up marketing ofbeer either produced bv strch units or by procurementfrom extemal sou(1'es. [-['l-rt ]lcrter earrrestly requestedthe assessee to loin disctrssion on thc subject so as toamicabll' resohc the issue. In the subsequent lenerdated 2+.11.i99-1. it is mentioned by M./s. ShawWallace thrrt cenain discussions were heidot 22.11.199-l end rhe assessee had given hiscommitment for not c.uning on an]' manrrfacturingor m,rrketing ectivin' for a period of live yeanfrom 08. 12.19')-l subicct ro rheir agreement for a\compens:rtion o1 Rs.1 C crores. \\,'hi-le the company agreed that the coiisi.lcratiou u,x f air', considering themaintainable proirt of about Rs.220 lakhs per yearwhich was apprrent irom the appraisal made by theBank of [ndi;r, thc comp;rny uanted to make 'anounce of modilication' to proposal. The companymentioned that. nhile the maintainable profia for *rcnext five lean werc not disputed, t}re profitproiections should bc appropriately discounted totake into account thc tirne value of money. SoM,/s.Shaw \X/allace urged the ,rssessee in the said letter.to agree to r lunp stLm consideration of Rs.8.26crores. The letter ends rvith an expression of hopethat the assessee nould asn:e to the offer, so thatproper doculcnts could be clnnrr up to record thedeal. fusesse.' endorued his acceptance to thecompensrtion oi Rs.8.26 crorcs on the face of thisletter irself. To otu- nrind, the arrificialin- oi the language usedin this corres ponclenc.' is clident on its face. Theentire exercise is to be seen in ilre Light of the sameRs.8.26 crores agrrcd upon .rs earlr'as on 17.08.1994,azi. the fint Mernor:urclun oi Unclentandrrg whichcame to be frled be[or.' th.' ['llibun.rl ]b1.the learnedcounsel ior the .usessee onh at the instance of theBench. If this C,orrespond.'nie xere not there, onecould h;rve possibll'given s,-rnre credt'nce to the storythat the sunr of Rs.8.26 crores represented non- /[I] .onrpetinq fee, as agreed in the Memorandum ofUndr.rsr:rndinq dated U.ABJ994. \{hen thecorrpensrrtion oi Rs.8.25 crores was first agreed uponrs c,u'iv rs on 12.08.1994, arrd subsequendy series oflettcrs u'erc erchanged, and a pretence of negotiationsu'.rs enrctcd to culminate in the ultimate deed of.()\'r.narlr drtcd 06.12.1994, ir ;s evident that thepruposc ol this rvhole exercise was only to create air,-.a.1e rs held by rhe Revenue. The funher enensionol the sarne restdctive covenant beyond four leanancl ir-rnher pa\'ments in that conte>rt could also bepert oi the srrme exercise. It is not clear how thesep.r\rnents are made in pursuance of the original.rqreern!'nr d.rted 17.08.1994 when it allegedly standsstrlrcri:edcd br- the covenant dated 16.12.1994 which(l()c\ n()r provide for enension of t]re covenant. At.rnv r?tc. t he ilrnher paymenrc are not an issue beforeu\ .rnd \\'(' nc!'d nor dwell upon them It ur;n' :rlso be noticed that in the firstr))('rn()r.'rndurn cl.rted 17.08.1994, which we haveertr.rcteil hr'rtin above, in clause (2) thereof, it isnrcruionc.l th:rt the consideration for the purchaseol li).il l.rlihs shrres is (a) Rs.15l- per share palablebclrrre [1l ]\ovember 1,994 aad (b) lump sunrp;r\rnent ol 1L.8.26 crores ro be paid before l0'''\ovenrl,..r i 991. It is, oi course, metrtioned that theseiti oi Rs.8.26 crores is on account of non-1',:rrrrcru .orlpeting iee. llie aliiouiit of Rs.8.26 crores isdescnbed as non-comperition fees and also as parr ofconsideration for the purchas e o{ 29.50 lakhs shares.descnbed as non-comperition fees and also as parr ofconsideration for the purchas e o{ 29.50 lakhs shares.So. from thc terms of the Memorandum coupled withthe subsequent correspondence, r{rich we havethe subsequent correspondence, r{rich we haverefe rred to. it appean that the panies decided to splitthe sale consideration for 20,50,000 shares into twocornponents, ti<. Rs.15/- per share as salethe sale consideration for 20,50,000 shares into twocornponents, ti<. Rs.15/- per share as saleconsideration and Rs.8.26 crores working out toRs.28/ per share branded as non-competition fee, asRs.28/ per share branded as non-competition fee, ase arll- .rs on 17 .A8.1994. In pursuance of this decision,thev entered into subsequent correspondence tocrerte an impression of negotiations and to give acolour of genuineness and arm's length trarsaction tocolour of genuineness and arm's length trarsaction tothe ltunp sunr pawnenr of Rs.8.26 crores in the formo[ non-competing fee, as distinct from simpleconsirleration for the sale of shares.o[ non-competing fee, as distinct from simpleconsirleration for the sale of shares. Actuailr', it appean that this entire rax savhgsdcrice has been hit upon even before 17.08.1994,i.e.,.*-hcn thc co-promoterr authorised the assessee to sellthe l9,rC,COO shares on 15.06.L994 iaelf. We haveaLcerh' extmcted the relevant portion of the saidatnhortation. It may be observed that in this.iutlrorisation itself, the co-promorers have visualiseda c,rntingencr that the purchaser m(ht irnpose acondirion th.rt [" ]r.r,.e should not do any business ofsimiler nattrre' and so thev had authorised the assessee "to negotiate and colect lump sum fee ascompensation for restraint of similar business"E v'idently, the associates of the xsessee had lot o[foresight ! It is also wonh noticing that the ;rmol,nt ofRs.8.26 crores had been distributed benveen the co-promoters in proponion of their share- holding,which would be the case only if it was pan ol' the saleconsideration. There are as man)' as 109co-promoten and it is incredible that .r[1 the co-promoterc are equally talented to set up a beermanufacturing unit and so, they received ar-rd becanreentitled to a share in the non-competine fee inproponion to their share in the block of sh,rresagreed to be sold. If expenise and t,rlent ire thecrterion for the receipt of non-competirrq [ee, theshares in non-competing fee o[ the cGplornotels .ln(lassociates cannot be in proponion to rhrir- shan'holding. We also find force in the contenrion o[ theIeamed Departmental Representati'e rh;rt thccovenanr dated 06.12.1994 contains no penaltr-clru.cfor pre- marure termination of the agreem.'nr. [-Ihis ]ispossible only if, as we understand, the so-celled non-competing fee is only pan of the compens.tion pairlby M/s. Shaw Wallace for the sharts .rcquired l,r'thern. Flaving purchased the shares, thcv h,rr-e nonrore interest in the terminat ion or non-t('rmin.ltron o[ the non-competing agreenrent, and so, thev did notbother to include a penalry clause, applicable in theevent o[ premature termination. o[ the non-competing agreenrent, and so, thev did notbother to include a penalry clause, applicable in theevent o[ premature termination. 24. Thereafter, Tribunal took the viev, that pil)4nr'ni of non-competing fees covering anyterrns of agreement dated 06.12.1994rras only pan of the sale consideration for transfer ol ]9.50 l;rkhshares sold to S\flG The entire affair uas preplanned; Saleconsideration was divided into two components; on(' cornponentof Rs.iSl- per share as per ruling market price ancl the othercomponent represented by non-competing fee ol' Rs.28/- pershare; whatever be the anificial division, both th.' componentsrepresented sale corsideration for the transicr ol sh,rres.'lhereiore, the finding of the revenue authoritir.s trcirtinq tlie saleconsideration @ Rs.43/ - per share for ri'orking olrr rhc cr;rital gainson the sale of shares transferred by the ,rsscsscc- s'rs rrplrtl.l. 2-5. However, on the question as to u-hcthcr rsscssce r.as liableto capital gains tax in respect of the entirc sh'rrr- holtling of 86,0C0shares or onlyin respect of 11,100 shares. Tribr.Lr.rel hcld rs [olloris: Ve accordingllr hold drat the capital gains tax cannotbe levied in the assessrnent lear r-rnder appeal ir relationtt, th* shares under lock-in-penotl .rn,l/ol rrnder pledge.In other u.ords, the capirrrl g:rins trx can be levied only inrelation to 11,100 shares as di-sck>sed b1'the assessee andnot on 85,100 shares as done by the assessing officer. Onthe balance oi 25,000 sharcs of rhe a-ssassee under lockin-period and/or pledgc. the Revenue is free ro lerycapital gairu ta.t in the relevlrnt lear, aiier the expiry oflock- rn- period or after thc no-objecrion cenificate hasbeen received from thc SEBI and,/or aJter the pledge isreleased. In relation to the ll.l00 sh:rres held as soldduring the year urder appeal, rhe Revenue is )ustified inadopring the sale consider;rrion of fu.+l/- per share. 26. Setting aside the orrlers c,i thc lo',rer re\-enue authorities, thematter was rcm..lnded back to tl'rc Ass.-ssinq C)fficer to recomputecapitalgains on 11,100 shari:s (D lls.1ll- pershare. 27. On careiul consideration trl. thc order passed bythe Tribunalas discussed above, u'e do not lincl ;rnv eror or inJinnirv in theapproach adopted b1-the Tril,un.rl to uamrnt inter-ference underSection 260-A of the Act. [()n ]rhc point of quantificadon of thesrice @ Rs.4ll- per slr.1n.. rhcre is conclrrent finding of fact by che original authoriry as r,,,cII as by two lorver appellateauthorities, which we are not incline'd to intertere u.ith at this stage. 28. Insofar the decisions relicd upon by leamed counsel for theappellant, in CIT v. Usha Saboo (1 supra), v',hich was an appealfiied by the revenue, PLrnjab and Hrrrrana I lgh Crun took the viewthat the questions raised uerr qtrc'stions oi fact. Ali the groundsurged by the revenue lere re [jecterl ]br.the said Flgh Coun and theorder of the Tribunal r.ras affinlc,-l. 29. In Shiv Raj Gupta v. CIT (J supra), the questions beforethe Bombay Flgh C-oun in thc .ippc,rl under Section 260A of theAct were as [ol[ous: (A) \X,hether the iTAl' hrs contctlv intelpreted theprovisions oi Section -28(ii) of the Income TaxAct, 1961? (B) \X.4rether the ITAT \\'i1s cor-recr in hoiding thatreceipt o[ Rs 6.6 crores by rhe r espondent- assessee asnon-competitive fee ',r'rs .r cepit:rl receipt underSection 28(n) of the Inconre Tes Act and not arevenue receipt as envisagecl il Sectirx 28(i.i) of theITAct ? I (Q \Mrethcr the ITAT failed to distinguish betweennatu, c of capital ard natwe of benefit in commercialserue in respect of amount of Rs 6.6 crores receivedin r.ierv of rcstrictive covenant of deedd.ted ll-4-lv'r+ ) (D) \\4rerher rhe leamed Judicial Member of TTAT\\'as conecr in recording his difference of opinion dratreceipt of Rs 6.6 crores by respondent-assessee wasactualh' a colourable exercise to evade tax and samervas held to be ta-rable under Section 28(if of theIncome T:x Act ?" (B) \X.4rether the ITAT \\'i1s cor-recr in hoiding thatreceipt o[ Rs 6.6 crores by rhe r espondent- assessee asnon-competitive fee ',r'rs .r cepit:rl receipt underSection 28(n) of the Inconre Tes Act and not arevenue receipt as envisagecl il Sectirx 28(i.i) of theITAct ? I (Q \Mrethcr the ITAT failed to distinguish betweennatu, c of capital ard natwe of benefit in commercialserue in respect of amount of Rs 6.6 crores receivedin r.ierv of rcstrictive covenant of deedd.ted ll-4-lv'r+ ) (D) \\4rerher rhe leamed Judicial Member of TTAT\\'as conecr in recording his difference of opinion dratreceipt of Rs 6.6 crores by respondent-assessee wasactualh' a colourable exercise to evade tax and samervas held to be ta-rable under Section 28(if of theIncome T:x Act ?" 30. It u'i',s in the context oi the above questions that the BombayFlgh [(bLrrt ]rctrLmerl th.' finding that the deed of covenant couldnot be read as a sepilrite rlocument; it was not in its real avatar; andit r.ras in l:act not on non-competing fee at all. Bombay F[gh(i>un senr c,n to hokl that Rs.6.6 crores could not be brought totax r,mder Section 28(ii)(c) oi the Act, but would have to be treatedas a texable capirirl g.rin in the hands of the appellant being pan oliull vallre of the sale corrsicleration paid for transfer of shares. Ot]the abor.r iactual b.rcktlrop, Supreme Court reiterated theproposition thilt coinnrcrciel expediency has to be adjudged fromthe point oi vie.r- of thc .rsse ssee . Income Tax Departmenr cannor i enter inio the thicket oi reasonabletess of the amounts paid by theassessee. 31. Ti.re aforesaid decision of the Supreme C-ourt is clearlydistinguishable on the facts of the present case That apart,Tribural has given adequate reasons as to w{ry it had agreed withthe computation rnade by the assessing officer quantifying saleconsideration @ Rs.43/- per share, which was affirmed bythe firstappeliate authoritr,. 32. That apan. as xr have seen from the order of the TribLrnal,the nratter u'as ren'randed back to the assessing officer forre-compurrrion oi capital gains. This order is dated 3L.12.2AA1.T.,r-enrr.'one rears har.e gone-by since then without any stay by thisC-orLn. Wc do not know about the status of the subsequentassessrnent order passed iollowing remand. In the circumstances,rle reir-ain irom inte rlering in the appeal. ll. ,,\ppeal is accordinglydismissed. No cost