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Soma Rani Ghosh Versus Deputy Commissioner of Income Tax

TDS u/s 194C - payments made by the assessee towards Carriage Inward and Carriage Outward - non deduction of tds - Held that:- As in the context of Section 194C(1), person undertaking to do the work is the Contractor and the person so engaging the contractor is the contractee. - As by virtue of the Amendment introduced by Finance Act (No.2) 2009, the distinction between a contractor and a sub-contractor has been done away with and Cl. (iii) of Explanation under 194C(7) now clarifies that "co .....

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194C(6) and Section 194C(7) are independent of each other, and cannot be read together to attract disallowance u/s 40(a)(ia) read with Section 194C of the Act. - If the assessee complies with the provisions of Section 194C(6), no disallowance u/s 40(a)(ia) of the Act is permissible, even there is violation of the provisions of Section 194C(7) of the Act. - Consequent to our findings in the preceding paragraphs, we reach a conclusion that the authorities below are not justified in treati .....

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nerjee, FCA, for the assessee Shri Aloke Nag, Additional CIT, D.R., for the Department ORDER Per Shri K. Narasimha Chary, J.M.: This is an appeal by the Assessee challenging the order dated 15.10.2015 passed by the learned Commissioner of Income Tax (Appeals)-15, Kolkata (hereinafter referred to as learned CIT ) for the assessment year 2012-13. 2. Brief facts of the case are that the Assessee is an individual engaged herself in Export Business under the name and style M/s Mediimpex of export of .....

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t Charges under the provisions of section 194C of the Act and since the assessee failed to deduct the same, treated such expense incurred for Carriage inward and carriage outward as disallowable under section 40(a)(ia) of the Act, added back ₹ 1,63,78,648/- claimed as expense towards Carriage Inward and ₹ 1,13,00,980/- claimed as expense towards Carriage Outward, to the income of the assessee. 3. Appeal carried to the learned CIT ended up in confirmation of the additions made by the .....

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der of the learned CIT, the assessee preferred this appeal on the following grounds: 1. For that under the facts and circumstances the Ld. Appellate Authority failed to appreciate the facts and details of expenses in support of carriage inward charges for an amount of ₹ 1,63,12,648/- which were paid to different Goods Transport Agencies during the course of purchase of goods for the purpose of export. All of the said transport agencies since had furnished their PAN and your petitioner has .....

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on confirming their PAN and your petitioner has not deducted any TDS in terms of provision of section 194C( 6) of the Act and the entire disallowance and addition is uncalled for and liable to be deleted. 3. For that the Ld. Appellate Authority was absolutely wrong in his observation that the individual declaration so issued by the transporters confirming their PAN do not prove about non applicability of section 40(a)(i)(a) in the instant case. 4. For that the Ld. Appellate Authority failed to c .....

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mmunity of payments made by the assessee towards Carriage Inward and Carriage Outward from TDS by virtue of Sec. 194C(6) and its due fulfilment. He has not canvassed the other contentions addressed before the learned CIT. On this aspect, he contends that despite production of Permanent Account Numbers/PAN declaration from each of the payee transporter for both Carriage Inward and Carriage Outward, the authorities below failed to notice that no TDS would be deductible from the payments to the pay .....

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ecome immune from Deduction of Tax at source, as such, the rigour and adversity of its disallowance under sec. 40(a) (ia) could not be invoked. On the other side, learned DR vehemently relied upon the orders of the authorities below. 6. Basing on the above rival contentions, the issue that arises for our consideration is whether the authorities below are justified in disallowing u/s 40(a)(ia) of the Act an amount of ₹ 1,63,78,648/- claimed as expense towards Carriage Inward and ₹ 1,1 .....

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Charges under the provisions of section 194C of the Act and since the assessee failed to deduct the same, learned AO disallowed the expenses of ₹ 1,63,78,648/- claimed as expense towards Carriage Inward and ₹ 1,13,00,980/- claimed as expense towards Carriage Outward, treating such expense disallowable under section 40(a)(ia) of the Act. 8. Assessee contended before the learned CIT that because of the provision of Section 194C(6), she was not liable to deduct TDS on payments to transp .....

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ncluding supply of labour for carrying out any work) in pursuance of a contractor between the contractor and a specified person shall, at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to - (i) one per cent where the payment is being made or credit is being given to an individual or a Hindu undivided family; (ii) two per cent where the pay .....

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by railways. (d).............. . (e)................ . It means that transportation of goods is included in the definition of "work" and thus transportation charges is liable for TDS. In the present case, the assessee becomes "contractor" who is making the payment to the transporter for carrying of goods and was thus liable to deduct TDS on such payment. Section 194C( 6) reads as under: "(6) No deduction shall be made from any sum credited or paid or likely to be credit .....

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who during the course of his business of plying, hiring or leasing goods carriages, makes payment to another contractor for hiring of vehicles, then he is not supposed to deduct the TDS. This sub-section will not apply to payments made by a person who himself is not a transport, to another sub-contractor for plying, hiring or leasing goods carriages. Any other interpretation given to the wordings of sub-section 194C(6) will become contradictory to the wordings and spirit of the wordings of sub- .....

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person responsible for paying or crediting any sum to the person referred to in sub-section (6) shall furnish, to the prescribed income-tax authority or the person authorised by it, such particulars, in such from and within such time as may be prescribed. . Thus, the benefits of sub-section 194C( 6) can be availed only then the assessee fulfils the conditions laid down in sub-section 194C(7). However, in this case, the assessee has not fulfilled the conditions as she has not furnished the requis .....

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ssment years. The relevant portion of the judgement reads as under: "After considering the rival submissions and perusing the submissions and notifications issued in this regard, we are of the opinion that there is no need to deviate from the order of Ld. CIT(A). Even though new provisions were introduced and assessees were made liable to deduct tax on the payments made to transporters, provisions of section 194C(6) gives exemption to the person not to deduct the amount, in case they obtain .....

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ble for the impugned assessment year as the relevant notification was not issued immediately. In fact, the Board has given notification on 15.10.2010, which was made effective for the forthcoming second quarter statement due on 15th October, 2010. Since CBDT itself has issued notification in a later year, assessee's contention that in the impugned assessment year, no such prescribed authority was stated has to be accepted. " The second judgement relied upon by the assessee in the case o .....

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the AO is confirmed . 9. A reading of the appellate order shows that the learned CIT dismissed the appeal of the assessee on the premise, firstly, that u/s 194C(1) ) r/w clause (c) to Explanation given below Sec. 194C(7) the assessee is a contractor making payments to the transporter for carrying of goods and was thus liable to deduct TDS on such payment. According to him, according to Section 194C(6), if a transporter is making any further payment for hiring/leasing of vehicles during the cours .....

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e conditions laid down in sub-section 194C(7) of the Act. On this aspect, he derives strength from the decision in the case of Muhammad Suhail. Now, we shall proceed to appreciate the rival contentions in the light of the provisions of the Act and the decisions rendered by different High Courts and Tribunal. 10. For proper appreciation of the finding of the learned CIT that the assessee is a contractor making payments to the transporter for carrying of goods and was thus liable to deduct TDS on .....

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p; … … … … … shall, at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to- (i) one per cent in case of advertising, (ii) in any other case two per cent, of such sum as income-tax on income comprised therein: Provided that no individual or a Hindu undivided family shall be liable to deduct income-tax on the .....

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that the person who in pursuance of a contract, is responsible for payment is the contractee and the person carrying out any work (including supply of labour for carrying out any work) is a contractor. As a matter of fact, these expressions in the context of section do not admit of any other interpretation. 12. Our understanding of the terms Contractee and Contractor is fortified by the judgement of Allahabad High Court in Moradbad Chartered Accountants vs Central Board of Direct Taxes And Anr. .....

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contractee. 13. Ld. CIT(A) mistook the expressions Any person responsible for paying any sum and any resident (hereafter in this section referred to as the contractor) , appearing in Sec. 194C(1) and categorized the assessee as the Contractor. Having categorized the assessee as a contractor, the Ld. CIT(A) observed that the immunity from making TDS from the payment under section 194C(6) is available only to a transporter that procured the PAN of the SubContract Transporters. 14. The next questi .....

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n responsible for paying any sum to any resident (hereinafter in this section referred to as the contractor) for carrying out any work (including supply of labour for carrying out any work) in pursuance of a contract between the contractor and- (a) the Central Government or any State Government; or … … … … … shall, at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by .....

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lly or partly any labour which the contractor has undertaken to supply shall, at the time of credit of such sum to the account of the sub-contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to one per cent of such sum as income-tax on income comprised therein After Amendment by Finance Act (No.2), 2009 it is reading like, (1) Any person responsible for paying any sum to any resident (hereafter in .....

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sum to the person referred to in sub-section (6) shall furnish, to the prescribed income-tax authority or the person authorised by it, such particulars, in such form and within such time as may be prescribed. Explanation : For the purposes of this section,- (i) "specified person" shall mean,- … … … … … … (ii) … … … (iii) "contract" shall include sub-contract; (iv… … … 16. Though the entire Se .....

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vide Finance Act, 2009 brought in the most significant change by obliterating the difference between Contract and Sub-Contract, by repealing Sec. 194C(2) which was dealing with subcontractors and simultaneously introducing Sub Section (7) with Explanation, Clause No. (iii) of which clarifies that "Contract shall include sub-contract". Now as the things stand, there remains no distinction between a Contract and Sub-Contract. Unlike pre-amendment scenario, the entire provision of Sec. 19 .....

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labouring under the impression that, as provided by the pre-amended provisions, such immunity would be available in the hands of the Contractor- Transporter making payment to the Sub Contractors-Transporters. It shows that he had failed to take note of the fact that by virtue of the Amendment introduced by Finance Act (No.2) 2009, the distinction between a contractor and a sub-contractor has been done away with. Ld CIT should have noticed the significance of the amendments made by Finance (No. .....

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and all payments for carrying out any work in pursuance of contract are covered within the fold o f section 194C (1) of the Act. Further Explanation (iii) also provides that a contract include sub- contract. Thus on and from 1/10/2009 payments made by sub-contractor to a sub sub-contractor would also be covered under section 194C of the Act . 19. Further, CBDT Circular No. 05/2010 F.No.l42/13/2010- SO (TPL), dated 3Td June, 2010, in the context of the Explanatory Notes on Finance Act (No.2) 200 .....

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the scope for disputes regarding classification of contract as sub contract, The Act has been amended to specify the same rate of TDS for payments to both contractors as well as sub- contractors." 20. It, therefore, flows from our above discussion that by virtue of the Amendment introduced by Finance Act (No.2) 2009, the distinction between a contractor and a subcontractor has been done away with, and Cl. (iii) of Explanation under 194C(7) now clarifies that "contract" shall incl .....

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account of a contractor during the course of business of plying, hiring or leasing goods carriages, where such contractor owns ten or less goods carriages at any time during the previous year and furnishes a declaration to that effect along with, his Permanent Account Number, to the person paying or crediting such sum. 22. Prior to the amendment by Finanace Act, 2015 (w.e.f. 1-06-2015, it was reading as follows: (6) No deduction shall be made from any sum credited or paid or likely to be credit .....

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uch payment to the Transporter. On furnishing the PAN No. from the recipient TransporterContractor, the immunity from making TDS under sec. 194C(1) shall be available to all payers by virtue of 194C(6), in relation to all Goods Transport Charges irrespective of the fact, whether it was under a Contract or a Sub-contract. 24. We wish to refer profitably to Para No. 49.3 of CBDT Circular No. 05 12010 F.No.142/13/2010-S0 (TPL), dated 3rd June, 2010 (Explanatory Notes on Finance Act (No.2) 2009), wh .....

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rators are reporting, problem in obtaining TDS certificates as these are not issued immediately by clients and they are not able to approach the client again as they may have to move across the country for their business. B) It is, therefore, the Act has been amended to exempt payments to transport operators (as defined in section 44AE) from the purview of TDS. However, this would only apply in cases where the operator furnishes his Permanent Account Number (PAN) to the deductor. Deductors who m .....

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y virtue thereof when Transport Operators furnish their PAN to the person responsible for making payments to them, the Transport Operators would be outside the purview of TDS u/s 194C. Needless to say that subject to compliance with the provisions of Section 194C(6), immunity from TDS under sec. 194C(1) in relation to payments to transporters, applies transporter and non-transporter contractees alike. 25. Next ground of disallowance stated by the learned CIT is that Sec. 194C(6) and 194C(7) are .....

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f the sub-contractors have supplied their PAN to the person making payments in respect of hiring /leasing/of vehicles during the course of his business, then such person making such payment shall not deduct any TDS. It is only by way of subsequent amendment by Finance Act, 2015 (w.e.f. 1-06-2015), the expression "where such contractor owns ten or less goods carriages at any time during the previous year and furnishes a declaration to that effect along with" was substituted in the place .....

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end the immunity from TDS, our attention is drawn to the fact that though the Finance Act, (N0.2) 2009 introduced, inter alia, Sec. 194C(6) and 194C(7), similar and analogous provision had been very much in existence under proviso 2 and 3 to Section 194C(3) of the Act. Placing such provisions in juxtaposition in the following chart makes it clear that they are very much analogous and the difference is that only in respect of requirement of a declaration and furnishing the particulars to the to t .....

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hall be made under sub-section (2), from the amount of any sum credited or paid or likely to be credited or paid during the previous year to the account of the sub-contractor during the course of business of plying, hiring or leasing goods carriages, on production of a declaration to the person concerned paying or crediting such sum, in the prescribed form and verified in the prescribed manner and within such time as may be prescribed, if such sub-contractor is an individual who has not owned mo .....

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he account of a contractor during the course of business of plying, hiring or leasing goods carriages, 1["where such contractor owns ten or less goods carriages at any time during the previous year and furnishes a declaration to that effect along with"], his Permanent Account Number, to the person paying or crediting such sum. (7) The person responsible for paying or crediting any sum to the person referred to in sub-section (6) shall furnish, to the prescribed income-tax authority or .....

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is premise we shall proceed to examine whether Section 194C(6) and 194C(7) are to be read together to invoke provisions under section 40(a)(ia) of the Act. 28. After drawing an analogy between the pre-amended proviso between Clause (2) and Clause (3) of section 194C(3) and the present amended section 194C(6) and 194C(7), Learned AR submitted that even on earlier occasions when the declaration obtained in Form 15I ( requirement similar to the PAN particulars under Sec. 194C(6)) obtained from the .....

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the PAN details under the present section 194C(6), the assessee was not required to make any deduction at source on the payments made to the contractor or sub-contractor, irrespective of the fact whether or not such information was furnished to the authorities as prescribed under third proviso to the amended section 194C(3) or the present section 194C(7). 29. In CIT -vs.- Valibhai Khanbhai Mankad (Tax Appeal No. 1182 of 2011, order dated 01.10.2012), it is held by the Hon ble Gujarat High Court .....

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(2) shall be made from the amount of any sum credited or paid or likely to be credited or paid to the sub-contractor during the course of business of plying, hiring or leasing goods carriages, on production of a declaration to the person concerned paying or crediting such sum in the prescribed form and verified it in the prescribed manner within the time as may be prescribed, if such sub-contractor is an individual who has not owned more than two goods carriages at any time during the previous .....

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ts are fulfilled, the liability of the assessee to deduct tax on the payments made or to be made to such sub-contractors would cease. In fact he would have no authority to make any such deduction. 8) The later portion of sub-section (3) which follow the further proviso is a requirement which would arise at a much later point of time. Such requirement is that the person responsible for paying such sum to the sub-contractor has to furnish such particulars as prescribed. We may notice that under Ru .....

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on at source applicable under sub-section (2) of section 194C of the Act. In our view, therefore, the Tribunal was perfectly justified in taking the view in the impugned judgment. It may be that failure to comply such requirement by the payee may result into some other adverse consequences if so provided under the Act. However, fulfilment of such requirement cannot be linked to the declaration of tax at source. Any such failure therefore cannot be visualized by adverse consequences provided unde .....

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ucted tax at source is not deposited within prescribed time . 30. In CIT -vs.- Sri Marikamba Transport Co. in ITA No. 553 of 2013 reported in 379 ITR 129 (Karn.), Hon ble Karnataka High Court has formulated a question as to whether non-filing of Form No. 15I/J within the prescribed time is only a technical default or the provisions of section 40(a)(ia) of the Act are attracted? and proceeded to answer the same as under:- Section 40 (a)(ia) and Section 194C(3) of the Act reads thus: "Section .....

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139". Section 194C/3): No deduction shall be made under sub-section (1) or sub- section(2) from - (i) the amount of any sum credited or paid or likely to be credited or paid to the account of or to the contractor or sub-contractor, if such sum does not exceed twenty thousand rupees: Provided that where the aggregate of the amounts of such sums credited or paid or likely to be credited or paid during the financial year exceeds fifty thousand rupees, the person responsible for paying such su .....

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rm and verified in the prescribed manner and within such time as may be prescribed, if such sub-contractor is an individual who has not owned more than two goods carriages at any time during the previous year. Provided also that the person responsible for paying any sum as aforesaid to the subcontractor referred to in the second proviso shall furnish to the prescribed IT authority or the person authorised by it such particulars as may be prescribed in such form and within such time as may be pre .....

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lear that if there is any breach of requirements of Section 194C(3), the question of applicability of Section 40(a)(ia) arises. The exclusion provided in Sub-Section(3) of Section 194C from the liability to deduct tax at source under sub-section(2) would be complete, the moment the requirements contained therein are satisfied. Once, the declaration forms are filed by the subcontractor, the liability of the assessee to deduct tax on the payments made to the sub-contractor would not arise. As we h .....

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2013) 216 Taxman 18 (Guj) wherein it is held that once the conditions of Section 194C(3) were satisfied, the liability of the payee to deduct tax at source would cease and accordingly, application of Section 40(a)(ia) would also not arise. The Tribunal, placing reliance on the judgment of the ITAT, Ahmedabad Bench, has dismissed the appeal filed by the Revenue. We agree with die said propositions and hold that filing of Form No.15I/j is only directory and not mandatory. 31. A Coordinate Bench of .....

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T -vs.- Sri Marikamba Transport Co. in ITA No. 553 of 2013 reported in 379 ITR 129 (Karn.). 32. It is worth noticing that in ACIT -vs.- Mr. Mohammed Suhail, Kurnool in ITA No. 1536.Hyd/2014, order dated 13.02.2015, the Coordinate Bench of this Tribunal specifically held that the provisions of section 194C(6) are independent of section 194C(7), and just because there is violation of provisions of section 194C(7), disallowance under section 40(a)(ia) does not arise if the assessee complies with th .....

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Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.



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