TMI Blog2019 (9) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. The ld. CIT(A) is an appellate authority, whereas the DRP is a continuation of the assessment proceedings where the DRP acts as a corrective mechanism to guide the Assessing Officer for making error free assessments. The role of a DRP, in our humble understanding, is to assist the Assessing Officer in determining the correct income so that correct tax may be levied. Whether the appellant can be put to worse off positions as a result of filing the appeal before the Tribunal ? - HELD THAT:- We agree with the ld. DR that there was no enhancement of income by the DRP, but, at the same time, the assessed income of the year under consideration, having been exhibited elsewhere, clearly puts the assessee in a worse off situation that it was before filing the appeal. If the assessee had not filed any appeal against the total assessed income of all the assessment years under consideration, the income would have been ₹ 7.21 crores only. However, after filing appeal and after readjudication, the total assessed income of all the years under consideration is ₹ 123.16 crores. In all fairness, the entire proceedings should now be restricted to adjudication upon the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of complete details, the same is not a good comparable. In our understanding of the facts and considering that the LO is performing routine and limited functions and is operating in a risk immune environment, the allocation of profit should be done by applying TNMM as most appropriate method. The assessee is directed to furnish necessary details and the Assessing Officer is directed to recompute the attribution of profit to [LO] PE by applying TNMM as most appropriate method. It is made clear that sales through ForeVision and sales to Videocon should not be considered for the purposes of attribution of profits. To sum up: i) The DRP has done no enhancement and has simply adjudicated upon following directions of the Tribunal which directed the DRP to adjudicate the objections raised by the assessee by a speaking order. ii) Yes, the assessee has been put in a more worse situation than what it was before filing appeal in the first round of litigation. Therefore, we have held, as mentioned elsewhere that the additions made in the first round of litigation will only be considered which is ₹ 7.21 crores. iii) Yes. There is a PE in India. iv) Attribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the facts of assessment year 2002-03 with an understanding that in all other years, the underlying facts in issues are identical. On such concession, the representatives of both the sides were heard at length, the case records carefully perused and with the assistance of the ld. Counsel, we have considered the documentary evidences brought on record in the form of Paper Book in light of Rule 18(6) of ITAT Rules. Judicial decisions relied upon were carefully perused. 3. Facts, as culled out from the records, show that the appellantcompany, incorporated under the laws of Singapore, is a wholly owned subsidiary of Hitachi High-Technologies Corporation (HHT), a company incorporated under the laws of Japan. The appellant is engaged in trading operations across ASEAN countries and also carries out sourcing and trading operations in respect of various products and equipments. In the year August 1988, the assessee established a Liaison Office ( LO ) in India [earlier known as Nissei Sangyo (Singapore) Pte Ltd] for rendering preparatory and auxiliary services, including market research and liaison activities. Branches of the LO were set up in Delhi, Bangalore and Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-08 2,05,53,037 85,95,280 47,27,404 Total 7,21,90,789 3,00,65,152 1,96,44,547 Total tax and interest demand 49,709,699 7. The appellant filed objections before the Dispute Resolution Panel against the draft assessment order. The appellant also filed applications under Rule 9 of the DRP Rules to place on record additional evidence. The DRP vide direction dated 27.09.2010, upheld the observations of the assessing officer. 8. Consequently, the assessing officer passed final assessment orders dated 26.10.2010 for assessment years 2002-03 to 2007-08 wherein total income of the appellant was computed in the hands of the PE (LO) by applying the Global profit margin of the appellant to the sales made by it in India and attributing 50% thereof to the PE in India. Total income was computed as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee in brief. We find that the assessee has filed objection under each ground running into more than 10 pages. Learned DRP has not looked into the objections of the assessee analytically. The assessee has alreadyy filed an application for permission to lead additional evidencee. It remained undecided. Considering the non-adjudication of the application for permission to lead additional evidence and non-consideration of various objections of the assessee, we are of the view that Learned DRP failed to decide the objections of the assessee by a speaking order. Hon'ble Punjab Haryana High Court in the case of Road Master Ind. India reported in 303 ITR 138 has emphasized on the .importance of assigning reasons while adjudicating any controversy. Hon'ble High Court has made reference to a large number of judgment of Hon'ble Supreme Court. It is advantageous to take note of the relevant finding of the Hon'ble Punjab Haryana High Court which read as under: 7. In Travancore Rayons Ltd. v. Union of India AIR 1971 SC 862, Hon'ble the Supreme Court observed: The Court insists upon disclosure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third , it should be remembered that an appeal generally lies from the decision of judicial and quasi judicial authorities to this Court by special leave granted under article 136. A judgment which does not disclose the reasons will be of little assistance to the Court.... ( p. 2761) The same view was reiterated in Ajantha Industries vs CBDT AIR 1976 SC 437 and Siemens Engg. Mfg. Co. of India Ltd. v. Union of India AIR 1976 SC 1785. X X XXx x x x i x x x x x x x x 12. In Testeels Ltd. v. N.M. Desai, Conciliation Officer AIR 1970 Guj. 1, a Full Bench of Gujarat High Court speaking through P.N. Bhagwati, J. (as his Lordship then was) made a lucid enunciation of law on the subject in the following words:- The necessity of giving reasons flows as a necessary corollary from the rule of law which constitutes one of the basic principles of the Indian Constitutional set up. The ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... needs to be adjudicated by us and for the sake of convenience, the same are categorised as under: i) While readjudicating on the directions of the ITAT, the DRP has exceeded the directions. ii) In framing the final assessment order, the Assessing Officer has put the assessee in a more worse position than it was before filing appeal. iii) There is no PE of the appellant iv) Since there is no PE of the appellant, no profit can be attributed. 13. We will now address the issues raised by the ld. counsel for the assessee one by one. I WHETHER THE DRP HAS EXCEEDED THE DIRECTIONS ISSUED BY THE TRIBUNAL. 14. We have already extracted the relevant findings of the Tribunal. It can be seen from the findings of the Tribunal that the Tribunal was concerned with non adjudication of the application for permission to lead additional evidences and objections disposed of by the DRP were not by a speaking order and, accordingly , set aside all these issues and remitted back to the DRP for readjudication. In the readjudication proceedings, the DRP disposed of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial decisions stating that the Tribunal does not have any power of enhancement and, therefore, cannot direct the assessing authority to make fresh assessment, which resulted into enhancement of income as compared to that which was assessed at the first stage. 19. Per contra, the ld. DR strongly objected to the submissions made by the ld. counsel for the assessee and vehemently stated it was merely incidental that after following the directions of the Tribunal, the DRP framed a well speaking order and directed the Assessing Officer to frame the final assessment order which has resulted into the enhancement of income. It is the say of the ld. DR that this has happened for the reason that the DRP directed the Assessing Officer to adopt an objective methodology for determining the income attributable to the assessee s PE as against the guesstimate proposed by him in the original assessment. 20. The ld. DR drew our attention to the provisions of section 144C(8) of the Act and pointed out that the DRP has power to confirm, reduce or enhance the variations proposed in the draft assessment order. Therefore, the directions of the DRP are entirely law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in determining the correct income so that correct tax may be levied. II IN FRAMING THE FINAL ASSESSMENT ORDER, THE ASSESSING OFFICER HAS PUT THE ASSESSEE IN A MORE WORSE POSITION THAN IT WAS BEFORE FILING APPEAL. 25. Having said all that, the pertinent question which needs to be addressed is as to whether the appellant can be put to worse off positions as a result of filing the appeal before the Tribunal. As mentioned elsewhere, in the first round of litigation, the amount of profit attributable to the appellant for assessment years 2002-03 to 2007-08 was to the tune of ₹ 7.21 crores, whereas after following the directions of the DRP in re-adjudication proceedings, the income has been assessed as under: Assessment year [ Rs.] 2002-03 1,44,22,125/- 2003-04 3,47,61,421/- 2004-05 46,79,16,411/- 2005-06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 39, therefore, it is clear that on a true and proper construction of sub-s. (4) (a) (i) of s. 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross- objections by the Department. 28. A similar view was taken by the Hon'ble Allahabad High Court in the case of Pahulal Ved Prakash 186 ITR 589 wherein the Hon'ble High Court observed as under: 13. It is pertinent to point out that, before the Incometax Appellate Tribunal, the assessee alone was in appeal. The Revenue had not filed any appeal or cross-objection. It is settled that the Income-tax Appellate Tribunal, while dealing with the appeal, in the absence of any cross-appeal or objection, cannot give a finding adverse to the appellant which would make his position worse than it was under the orders appealed against. It is true that the question suggested by the Commissioner is, no doubt, one of law, but the answer to it is, in our opinion, self-evident because the Tribunal has no power of enhancement. See Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 (SC). In these circumstances, it would be futile to require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of all the assessment years under consideration, the income would have been ₹ 7.21 crores only. However, after filing appeal and after readjudication, the total assessed income of all the years under consideration is ₹ 123.16 crores. In all fairness, the entire proceedings should now be restricted to adjudication upon the assessed income of all the years under consideration to the extent of ₹ 7.21 crores. III WHETHER THE APPELLANT HAD BUSINESS CONNECTION/PE IN INDIA 33. The business segments of appellant during the year were as follows: Sale of Equipment to Moser Baer India Sale of Equipment Parts, Spares Consumables to MBI Sale of Equipment through Independent Agents 34. We are concerned with only 1 and 2 above. 35. Facts on record show that during the relevant previous years, the assessee was having an office in India which it called Liaison Office [LO]. There is no dispute that this LO was set up in 1988 vide letter dated 24.08.1988. The Reserve Bank of India [RBI] granted permission u/s 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was acting only as a communication channel in relation to the activities undertaken by Appellant in India. 40. The ld. AR explained the modus operandi stating that once the equipments have been supplied to MBI, demand for spares and consumables is directly communicated by MBI to the Appellant. It is the say of the ld. AR that the appellant, through its Singapore office, maintains regular contacts with its suppliers spread across the world. It was further stated that upon receiving an enquiry from MBI, appellant provides the listed price of relevant parts, spares and consumables, either directly or through the LO and the LO, forwards the price quotation to MBI. The ld. AR continued by stating that thereafter, a Purchase Order was placed on appellant. A copy of PO was delivered to LO for acceptance. Later on, a letter of credit was issued by MBI to appellant without the involvement of LO. Thereafter, the merchandise is shipped to India. For sale, a commercial invoice is issued by Appellant to MBI. The shipment documents are delivered directly to MBI. As per the Agreement, payment for the equipments is made in foreign currency. 41. The ld. AR furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the assessee placed reliance on the decision of the Delhi Tribunal in the case of Nokia Networks OY: 94 taxmann.com 111 (Del). 45. The ld. counsel for the assessee argued at length on the reliance placed on the statements of the employees recorded during the course of survey proceedings. The ld. counsel for the assessee stated that such statements recorded at the time of survey proceedings do not have any evidentiary value in the light of the decision of Hon ble Madras High Court in the case of CIT vs. S. Khader Khan Son: 300 ITR 157, which was affirmed by the Hon'ble Supreme Court in 210 Taxmann 248. 46. The ld. counsel for the assessee proceeded by stating that the Revenue has picked up answers to selective questions to justify the allegation that the LO was PE of the appellant. 47. The ld. DR, on the other hand, stated that the Assessing Officer has relied on the material found during the survey operation to hold that the assessee had PE in India that was engaged in business activity. It is the say of the ld. DR that the DRP ha mostly relied upon the submissions made by the assessee during the assessment and DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decisions relied upon by the ld. AR. 50. We have given thoughtful consideration to the rival contentions and have carefully perused the judicial decisions relied upon. The undisputed fact is that the LO is carrying out its activities since 1988 and upto A.Y. 2001-02, such activities were accepted. However, post survey operations, when the email exchanges were unearthed, which resulted into some new facts, prompted the revenue to reopen the assessments of A.Ys 2002-03 to 2007-08. 51. The business segments of the appellant during the year have already been mentioned elsewhere. We find that the Revenue has heavily relied upon the email exchanges and statements of key personnel namely, Mr. Morimasa Gempei, Dy. Managing Director, Shri Jai Prabhakaran, Sales Executive and Ms. Leena Cardoza looking after sales to Moser Baer. The Revenue has also drawn heavy support from the emails of the Tax Consultant Shri Piyush Kaushik, who, in his emails has shown apprehension of the position that the Revenue might take post survey operations. The contents of the emails of Shri Piyush Kaushik clearly show that he was acting as Tax Consultant and advising the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or optical disc and also materia! for optical disc, The Company is selling these products globally and in India specifically, the major customers are Moser Baer India Ltd., Turbo Energy Ltd. and Honeywell India Pvt. Ltd. Hitachi Singapore has an established network in the ASEAN Region. It has a dedicated team of professionally trained engineers to provide the customer with custom- made care services. This includes original product part supplies from Japan and after sales support and services. After sales services for Surface Mount Systems (SMP) Hard Disk Manufacturing System and Semi-conductor Manufacturing Products includes; recommendations for maintenance and repairs, operational and maintenance training, spare parts, service contracts, maintenance and overhaul services as well as operational support services, relocation services including logistics and assembly, shut down support services, overhaul and upgrading. The global network of the company offers not only assistance to customers' needs but also commitment to provide advanced customer support. The global network of experts consists of Japan Team and Local Team, who have the technical knowledge and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed between 2000 to 2002 but did not function. All the offices were reporting to Mr. Siddiqui, who in turn reports to our head office to Singapore. Q.20 Why the representative office converted to branch office? A. I guess for the growth of our Company, it was converted into a branch office. Q. 21 Do you have any idea about after sales services provided by Hitachi Singapore /or Indian office? A. No. Usually when the machinery is sold to Moserbaer, the engineers of that particular company like Origin Japan, Shibura Japan etc. come to India to install the machinery and as and when any technical services are required. Q.22 Annexure A containing 93 pages are the copy of emails taken from your laptop. Please confirm the same? A. Yes -1 agree the same are taken from my laptop. A 23 I am showing you page 23, and particularly the mail from Mr. Piyitsh Kaushik to Mr. David Wong, which has reference to information by Ms. Leena. Who are Mr. Piyush 25. l am showing page 58 to 62 of Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. I guess it is not too late in taking comments of E Y or some other good company whether to pay tax or not. After giving reasons, our representative office was involved in commercial activities. 54. To this, David Wong replied You do have a point here. 55. At this stage, it would not be out of place to mention that Leena Cardoza was the oldest employee of the LO and was well aware of the activities of the LO since its inception and was also well aware that the LO was, in fact, engaged in some form of commercial activities. Most relevant answers to the questions given by Leena Cardoza during the course of assessment proceedings read as under: 3 Since you are the oldest employee of this organization in India, you must be aware of the activities of the liaison office and the present branch office. Is there any difference between the activities? Ans. The basic activity of liaison office was liaison work supporting head office in trading business There is no significant change in the business activities of the Indian of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Hon'ble Supreme Court in the case of R.D. Aggarwal and CO. 56 ITR 20. According to the Hon'ble Supreme Court, Business Connection , is as under: Involves a relation between a business carried on by a non resident which yields profits or gains and some activity in the taxable territories which contributes directly or indirectly to the earning of those profits, or gains. It predicates an element of continuity between the business of the non-resident and the activity in the taxable territories: a stray or isolated transaction is normally not to be regarded as a business connection. Business connection may take several forms: it may include carrying on a part of the main business or activity incidental to the main business of the nonresident through an agent, or it may merely be a relation between the business of the non-resident and the activity in the taxable territories which facilitates or assists the carrying on of that business.1' (Emphasis supplied). 60. As mentioned elsewhere, LO in India had atleast six employees engaged in advertisement and marketing, sales promotion, market resea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with specific words advertising, for the supply of information, for scientific research . 64. We find that Article 5 of India Singapore DTAA restricts the nature of preparatory or auxiliary activities which can be excluded to determine existence of PE. 65. The Exclusionary Article of India Singapore DTAA, if read with Exclusionary Article of India USA/India Canada DTAA, would throw more light on the quarrel. The Exclusionary Article of these DTAAs are ad under: India-Singapore DTAA Notwithstanding the preceding provisions of this Article, the term permanent establishment shall be deemed not to include ..... ( e) the maintenance of a fixed place of business solely for the purpose of advertising, for the supply of information, for scientific research, or for similar activities which' have a preparatory or auxiliary character, for the enterprise. India-USA/lndia-Canada DTAA1 Notwithstanding the preceding provisions of this Article, the term permanent establishment shall be deemed no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voices and receiving payments. 69. The case laws relied upon by the ld. counsel for the assessee have been distinguished by the ld. DR in his written submissions and for the sake of convenience, we extract the relevant submissions of the ld. DR as under: E-Funds IT Solution[2014] 42 taxmann.com 50 (Delhi) (pages 349 to 396 of the Assessee's Paper-Book on Case Laws) i. The facts of this case briefly are: that two companies namely e- Fund Corp. and e-fund Inc. which were incorporated in USA had entered into international transactions with their Indian subsidiary company, i.e. e-Fund India. In terms of their agreement, e-Fund India performed back office operations in respect of ATM management, electronic payments, decision support and risk management services rendered by the foreign Companies outside India. ii. On the facts of this case, the revenue authorities took a position that income of the two foreign companies was attributable to India because they had a PE in India in the form of their Indian associate company i.e. e-Fund India, and should be taxed in India. It was further held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd marketing, sales promotion, market research, and administration activities which were way beyond the scope of the activities carried out 'solely for the purpose of advertising, for the supply of information, for scientific research, or for similar activities which have a preparatory or auxiliary character' as required under the India-Singapore DTAA. The cited case law does not assist the assessee's case. i. This is also a case of a company incorporated in USA, which had a wholly owned subsidiary in India, namely, Adobe India. The Indian company provided software related Research and Development (R D) services to its foreign parent. The foreign company did not have any separate business operations in India. The R D services rendered by Adobe India, were paid for by the foreign company on cost plus basis in terms of an agreement between the two. ii. For the relevant years, the Assessing Officer and the TPO accepted the fees paid by the assessee on cost plus 15 per cent basis as being on ALP and Adobe India's assessment was made accordingly. Subsequently, the Assessing Officer sought to reo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id contract was liable to be taxed in India as the Assessee had a PE in India. According to the Assessee, its income from the contract was not taxable under the Act by virtue of DTAA with UAE. Assessee claimed that it did not have a PE in India and further the income from fabrication and supply of platform was not taxable as it pertains to the Assessee's activities outside India. ii. In this case the assessee had established a Project Office at Mumbai, which was also intimated to the RBI. It was also not disputed that the assessee did carry on part of its business through its Project Office, in the circumstances, the conditions as spelt out in para 1 and paragraph 2(c) of article 5 of the DTAA were satisfied. According to the High Court, the matter however would not rest here and it was to be seen whether any of the exclusionary clauses of paragraph 3 of article 5 of the DTAA were applicable. In this case, the HC considered clause (e) of paragraph 3 of article 5 of the DTAA which expressly provided that notwithstanding the provisions of paragraph 1 and paragraph 2 of article 5, a PE would not include 'maintenance of a fixed place of business solely for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who were only engaged in collecting information from ONGC and transmitting the same to the assessee's office in Abu Dhabi and similarly transmitting communications from assessee's office in Abu Dhabi to ONGC. These employees were simple graduates and were not capable for participating in the execution of the work undertaken. They were not even the employees of the project office. Compared it to the case of HTS, where not only that there were several employees manning the LO they were playing active role in concluding the steals between HTS and some of the Indian customers' This case also does not come to the rescue of the assessee in the present case. 70. The ld. counsel for the assessee relied upon the decision of the Tribunal in the case of Sofema SA : ITA No. 3900/ Del./ 2002 which was affirmed by the Hon'ble High Court of Delhi and in which SLP was dismissed by the Hon'ble Supreme Court. 71. Reliance was placed on this decision for the fact that no violation was found by the RBI with the activities of the LO. We are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment. 77. Thus, the PE, though a distinct and a separate enterprise, is to be treated as an associated enterprise under Article 9 of the DTAA read with sections 92B and 92F of the Act. Therefore, the PE is subject to the provisions of section 92, which require that any international transaction be carried out at Arm s Length. 78. Now the issue is to determine the Arm s Length profit that the appellant s PE would have earned if it had been operating as an independent enterprise in India. 79. The DRP found the work profile of the appellant s PE to be similar to one of the independent agent i.e. ForeVison, used by the assessee to carry out same or similar activities concerning sales in India. The DRP has considered the part details submitted by the assessee itself and after comparing the activities of ForeVision with that of LO, directed the Assessing Officer to use margin percentage of ForeVision as internal comparable. 80. Before u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by DRP Expenses of LO Profit attributable to LO as per AO/DRP Global net profit rate (%) Profit taking global net profit margin on Indian turnover (100% attribution) (A) (B) = A* 16.5% (C) D= (B-C) (E) F = (A*E) 2002-03 141,131,193 23,286,647 8,864,522 14,422,125 0.72 1,016,145 2003-04 262,639,470 43,335,513 8,574,092 34,761,421 1.42 3,729,480 2004-05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and same should be accepted. 86. We have given thoughtful consideration to the rival contentions. The undisputed fact is that to boost sales for Advance and Analytical Systems [AAS] business division, the appellant entered into arrangements with agents in India for specific marketing and promotion and one of such agent was ForeVision. 87. As per terms of the agency agreement, the agents were responsible for: Marketing including advertisements, exhibition participation and the necessary sales co-ordination activity Follow up assistance services in respect of the PO letters of credit from customers Following up on delivery to customers Follow up and assistance in respect of import documentation Follow up on credit and collection due from customers Installation of equipment through their own engineers Test runs (post installation) Training of customers staff Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first round of litigation will only be considered which is ₹ 7.21 crores. iii) Yes. There is a PE in India. iv) Attribution has to be done by applying TNMM as most appropriate method on the profits attributable to the sales excluding ForeVision and Videocon. 93. Before closing, the representatives of both the sides have referred to several judicial decisions in their respective written synopsis. However, we have only considered those decisions which have some relevance on the facts under consideration. 94. Before parting, we appreciate and thank the assistant given by Shri Sanjay Puri, ld. PCIT, Udaipur representing the Revenue and Shri Ajay Vohra, Sr. Adv. Next issue relates to charging of interest u/s 234B of the Act. 94. It is the say of the ld. counsel for the assessee that the revenues receivable by it are subject to deduction of tax at source, therefore, the question of payment of advance tax and subsequent levy of interest under section 234B of the Act does not arise at all. 95. Per contra, the ld. DR stated that since the assessee did n ..... 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