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Showing 181 to 200 of 1719 Records
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2020 (1) TMI 1543
TP adjustment on account of Specified Domestic Transaction of Director's Remuneration - it is the case of the assessee that the AO/TPO accepted the TNM Method as the most appropriate method at the entity level - HELD THAT:- Benchmarking of the specified domestic transactions of director's remuneration while accepting the aggregated results, is not sustainable. The decision of the Mumbai Bench of the Tribunal in the case of Hindustan Unilever Limited [2012 (12) TMI 458 - ITAT MUMBAI] helps the assessee. Therefore, ground No. 3 should be allowed in favour of the assessee as a covered case.
Transfer pricing adjustments on account of international transaction of corporate guarantee - case of the assessee is that the benchmarking of such international transaction of corporate guarantee is not valid as the referral made by the Assessing Officer to the TPO does not make a reference to such international transaction - HELD THAT:- From the above extracted portions of the judgment Times Global Broadcasting Company Limited [2019 (3) TMI 1309 - BOMBAY HIGH COURT] Hon'ble High Court dealt with the sub-sections 92A and 92B of the Act incorporated by the Statute by the Finance Act, 2011 and held that the TPO is barred from the benchmarking the specified domestic transactions when the Assessing Officer made a reference to the TPO for benchmarking the international transactions. The provision of these two sub-sections in the field of international transactions only was referred by this judgment (supra). In fact, it is evident from the contents in relation to the specified domestic transactions, the TPO cannot undertook transfer pricing study only in relation to those transactions which are referred to him under sub-section (1) of section 92CA of the Act. Considering the categorical finding of the Jurisdictional High Court, the jurisdictional issue raised by the assessee has to be allowed in favour of the assessee. Accordingly, the core legal issue raised by the assessee is allowed without going into the merits of the benchmarking exercise or quantification of the adjustments. Accordingly, ground No. 4 is allowed.
Deductibility of education cess and secondary & higher education cess u/s. 37(1) - This issue is now covered by the judgment of the Hon'ble Rajasthan High Court in the case of Chambal Fertilisers and Chemicals Ltd. [2018 (10) TMI 589 - RAJASTHAN HIGH COURT] education Cess, which is not disallowable item, on its payment, the cess is an allowable expenditure as per provision of section 40(a)(ii) - Decided n the favour of assessee.
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2020 (1) TMI 1542
Disallowance of expenses like telephone expenses, miscellaneous expenses, entertainment expenses and depreciation - assessee could not produce documents such as log books, bills/vouchers, etc.. - AO has also noted that in some cases the expenses were incurred in cash and the vouchers were self made and hand written- HELD THAT:- CIT (A) has upheld the findings of the AO by noting that the assessee was unable to substantiate that the entire expenses were wholly and exclusively for the purpose of business and details like log books etc for vehicles, telephone were not available.
The fact remains that this disallowance has been made on a lump sum basis/ad hoc basis without bringing on record any specific defect in the accounts of the assessee or in the details submitted by the assessee. There are numerous judicial precedents wherein it has been laid down that no ad hoc disallowance can be made without pointing out any specific defect in the books of accounts of the assesee or in the documents furnished by him. Therefore, we are unable to uphold the findings of the Ld. CIT (A) and we set aside the impugned order and direct the AO to delete the addition - Decided in favour of assessee.
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2020 (1) TMI 1541
High court Jurisdiction to entertain the appeal - HELD THAT:- The tribunal, the order of which is appealed against, is located in New Delhi.
Hence this Court has no jurisdiction to entertain the appeal.
Accordingly on this technical point the appeal and the connected two applications are dismissed.
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2020 (1) TMI 1540
Maintainability of application filed by the IRP without prior concurrence of CoC - termination of work orders - invocation of bank guarantees - HELD THAT:- It is seen that in Section 14(1)(a) the word 'proceedings' is used, whereas in Section 33(5) the phrase 'legal proceeding' is used. The Legislature has itself made a distinction between the two terms in Sections 14(1)(a) and 33(5) of the Code which clarifies that both signify different meanings. If it so intended to provide for legal proceedings only under Section 14(1)(a), it would have explicitly stated the same. The word 'proceeding' or 'proceedings' is used in different hues and perspectives in IBC, 2016. Such usage in the Code includes arbitration, disciplinary, legal, bankruptcy, insolvency, liquidation, CoC meetings, under repealed/other acts, before Adjudicating Authority or IBBI or special/other courts, winding-up, in Schedules of amendments, etc. - proceedings under Section 14(1)(a) has a larger canvas and it covers various authorities.
Since, the termination provisions/proceedings are void ab-initio, consequent action of invoking bank guarantees is non-est in law and liable to be set aside - Award of fresh tender by Respondent No. 1 under such circumstances, to the detriment of the Corporate Debtor, is also liable to be set aside.
The actions of Respondent No. 1 are in violation of letter and spirit of IBC, 2016. The invocation of bank guarantees to the detriment of Corporate Debtor is also completely unsustainable - Provisions for termination included in or connected with instruments of Work Orders No. 1 and 2, are inconsistent inter-alia with Section 20 of IBC, 2016 and are invalid and prohibited under Section 238 of the Code. Moreover, termination proceedings could not be initiated or continued by Respondent No. 1 under bar of moratorium of Section 14 of the Code - Termination of Work orders 1 and 2 and all communication, including notices, in this regard is/are held to be inoperative and null - application disposed off.
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2020 (1) TMI 1539
Continuation of attachment order, when Corporate Debtor proceeds for Liquidation - whether National Company Law Tribunal (NCLT) is to consider the application for proceeding the Corporate Debtor into liquidation? - HELD THAT:- The present petition is disposed of granting liberty to the petitioner to move the Appellate Tribunal under the PMLA to seek early consideration of the appeal filed by the petitioner before it on the order of liquidation of the Corporate Debtor being passed by the NCLT. The application/appeal filed by the petitioner shall be expeditiously considered by the Appellate Tribunal preferably within a period of eight weeks of moving such application.
Petition disposed off.
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2020 (1) TMI 1538
Time limit for filing appeal - HELD THAT:- The appeal has been filed within the time i.e. 30 days from the date of receipt of the certified copy of the impugned order.
Let notice be issued on the Respondents by Speed Post. Requisites along with process fee be filed by 10th January, 2020.
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2020 (1) TMI 1537
Revision u/s 263 by CIT - assessee has already offered Long Term Capital Gain to tax under Income Declaration Scheme (‘IDS) - CIT proposes that the purchase price of 1,00,000/- is to be added and the commission payment to the tune of ₹3,76,219/- has to be brought to tax, in his order passed u/s 263 of the Act - HELD THAT:- Once the income offered and the IDS, 2016 is accepted by the Department, an order passed u/s 143(3) of the Act cannot be revised, as the items of addition in question directed by the ld. Pr. CIT was part of the IDS, 2016 application and not part of the order passed u/s 143(3) of the Act.
Even otherwise once a person has availed IDS, 2016 and paid taxes, in our view it is not correct for the Pr. CIT to revise the assessment order u/s 263 of the Act as this would be against the spirit of the scheme. Thus we cancel the same and allow the appeal of the assessee.
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2020 (1) TMI 1536
CIRP process - professional fees and reimbursement of expenses to be made to the IRP - HELD THAT:- This bench is apprised of the fact that the Operational Creditor has been in talks of settlement with the Corporate Debtor and, is therefore, not interested in taking any step to proceed with the CIR process. Under such circumstances with no other claimant and the sole member of the CoC not being interested in prosecuting the CIR process, it would be expedient to terminate the CIR process.
The CIR process is hereby terminated. The Corporate Debtor is released from the rigors of the moratorium and is permitted to function through its own board - the Operational Creditor has not only failed to reimburse the expenses and fees of the Interim Resolution Professional, but has also wasted the time of this Bench after the petition was duly admitted.
Be listed for a report on remittance of costs, on 14th January, 2020.
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2020 (1) TMI 1535
Dishonor of Cheque - validity of sale deed - deposit of first cheque under threat and coercion - Section 482 of the Code of Criminal Procedure - HELD THAT:- One of the striking features of the matter is that on the day when the Sale Deed was executed, not a single paisa was actually received by way of consideration. Three post-dated cheques were handed over to the Appellant and one of those three cheques was deposited in the bank for encashment on the next date. It is a matter of record that subsequent cheques were not even sought to be encashed and the Appellant showed his willingness to deposit even the sum of ₹ 15 lakhs received by encashment of first cheque. Further, neither the conveyance deed was preceded by any agreement of sale nor any advertisement was issued by the Appellant showing his inclination to dispose of the property in question.
It is true that civil proceedings have been subsequently initiated to get the registered Sale Deed set-aside but that has nothing to do with the present criminal proceedings - It is thus well-settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law.
There are no hesitation in concluding that the High Court erred in quashing the criminal proceedings - appeal allowed - decided in favor of appellant.
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2020 (1) TMI 1534
Seeking grant of Bail - allegation is that the applicant and the co-accused assaulted the deceased Satish Tyagi with 'lathi danda', rod and knife, wherein he received fatal injuries, to which he succumbed at the hospital - HELD THAT:- In the first place, there can be no dispute to the fact that the present application when filed did not suffer from any defect of Section 439(1) Cr.P.C., inasmuch as, the applicant was in actual physical custody of law, at that time. Upon the order directing his release on interim bail by this Court vide order dated 24.09.2019, he was first released from the prison premises, under orders of this Court after fulfilling the directions issued by this Court, in that order. He also claims to have continuously fulfilled those directions since then.
Whether the applicant was required to necessarily go back in actual physical custody of the State before the present application could be dealt with, finally? - HELD THAT:- Obviously, this Court cannot pass bail order and thus cannot release an accused person on bail unless he has first been taken into custody or unless he is first shown to be under judicial custody. Inasmuch as it is an undisputed case between the parties that the applicant was in actual judicial custody on 24.09.2019 when the interim bail-order was passed by this Court, it can never be said that the applicant has been released on bail without having been first taken into custody. In all fairness, that is not even the objection of the informant or the State.
This bail application when filed did not suffer from any defect of form or substance. The bail application, filed by the applicant under section 439 of the Cr.P.C., 1973, was wholly maintainable. On the date of filing the bail application, the applicant was in custody and he was released by this Court under specific direction contained in the order dated 24.09.2019. Since then, the law had clearly taken control over his person by making him bound to the terms and conditions of the order whereon he was permitted to be released from the jail premises i.e. subject to his furnishing adequate surety and bail bond.
In the instant case, it must be noted, there was no anticipatory bail claimed or granted. The interim-bail granted to the applicant was neither in the nature of nor it was in terms of an anticipatory bail. It was referable only to the power of this court to grant bail under section 439 Cr.P.C, 1973 - As to the fact that the interim bail granted to the applicant was made time bound by 45 days, it is true that the same cannot ordinarily be treated to have been extended in absence of any specific order, however, it is also a fact that there is no order on the order sheet to cancel or curtail the interim bail or to decide the bail application finally on 04.11.2019.
Notwithstanding the lapse of 45 days time period, the applicant is continuing in constructive custody and control of this Court and it would be wholly proper to condone the lapse, if any, on part of the applicant and to allow the applicant's conditional liberty to be maintained in terms of the order dated 24.09.2019 for the period 04.11.2019 till date - let the applicant involved in the aforesaid crime be continued on bail, however, on his furnishing a fresh personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, within a period of two weeks from today, with the conditions imposed.
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2020 (1) TMI 1533
Liquidation process - action shall be taken against the property of the Corporate Debtor in relation to an offence committed prior to the commencement of CIRP or sale of liquidation assets under the provisions of Chapter III of Part II of the Code, or not - Section 32A inserted by way of Ordinance dated 28.12.2019 - HELD THAT:- It becomes clear that no action including attachment can be taken against the liquidation assets of the CD, for the offences committed prior to the commencement of the CIRP. The Ordinance operates with retrospective effect. It is further submitted that vide notification dated 31.03.2017 the State of Maharashtra has lodged a complaint against the CD viz., M/s. Namdhari Food International Pvt. Ltd., alongwith other entities on the accusation of the investors that they have deposited the money with NSEL but were defrauded. Further, the offences have been registered against the accused by EoW vide CR No. 89/13 under Section 409, 465, 467, 468, 471, 474, 477(A) and 120 (B) of Indian Penal Code, 1860 (IPC) read with Section 3/4 of Maharashtra Protection of Interest of Depositors (in financial establishment) Act, 1999 (MPID Act).
It is prayed that the attachment order dated 22nd of October, 2018 and r/w 31.03.2017 needs to be vacated in order to give effect to the provisions of the IBC to proceed with the liquidation process of the CD and to sell the assets as prescribed, so as to distribute the proceeds to the creditors as per the water fall mechanism provided under Section 53 of the IBC [subject to the provisions of 52 of the Code]. The Investors/Creditors cannot raise any objection as they were at liberty to file their claims with the liquidator within the stipulated time under Section 35 (j) of the IBC, 2016. The submissions of the liquidator are plausible, which are accepted.
The registration of CR No. 89/13 under the Provisions of the IPC and the MPID Act, is in relation to the alleged offences committed by the erstwhile management of the CD and other entities. But the Company (CD) cannot be prosecuted under the said provisions. Hence, the satisfaction of the claims of the creditors of the CD is possible only under the provisions of IBC. Therefore, in public interest, the Order dated 22nd October, 2018 read with notification dated 31st of March, 2017 is hereby set aside on the grounds stated by the Ld. Counsel for the Liquidator.
Application disposed off.
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2020 (1) TMI 1532
Seeking for declaration of BVN traders to be “financial creditor” or not - Section 5(8) of IBC, 2016 - HELD THAT:- This adjudicating Authority is of the view that as the COC has voted in majority in favour of BVN Traders as “financial creditor” and thus Suspended Management as well as Resolution Professional has no locus to challenge the commercial wisdom and decision of Committee of creditors with regard to determination of respondent as financial creditor.
This adjudicating Authority declares “BVN Traders” as “financial creditor” as per Sec 5 (7) of IBC,2016 and the loan amount given by BVN traders to corporate Debtor is declared as “financial debt” under Sec 5(7) (1) of the IBC, 2016 - Application rejected.
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2020 (1) TMI 1531
Seeking issuance of warrant of arrest - invocation of provisions of Section 87 of the Code of Criminal Procedure - HELD THAT:- In view of the law settled in Inder Mohan Goswami Vs. State of Uttaranchal & Ors. [2007 (10) TMI 550 - SUPREME COURT], the Hon’ble Apex Court that at the first instance if the court is satisfied it would issue bailable warrant, the learned Chief Judicial Magistrate issued the warrant of arrest without specifying the same either to be bailable or non-bailable. In view of the contentions so advanced by the petitioner so far as the merits of the case is concerned as well as the warrant of arrest so issued, prima facie the revisional application requires to be heard on merits.
The petitioner is directed to effect service upon the State of West Bengal through the office of the learned Public Prosecutor, High Court, Calcutta and upon the opposite party no.2 at its office address by hand service and also by speed post with acknowledgement due and file affidavit of service on the next date fixed for hearing - Let the matter appear under the heading “Contested Application” after six weeks.
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2020 (1) TMI 1530
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - right to recover the retention money or any further outstanding liability - HELD THAT:- It is noticed that pursuant to the final settlement in terms of letter dated 07.10.2015, no further correspondence was made agitating the same or reminding the Corporate Debtor that the agreed amount was not remitted.
This bench has observed that there is an existence of a prior dispute. Whether full and final Settlement of the claim was made or not or whether the respondent was entitled to adjust the retention amount are disputed question of facts. The Corporate Debtor, prima facie has been able to corroborate the existence of a prior dispute which the petitioner had withheld. The factum of the retention amount being adjusted was also within the knowledge of the petitioner and therefore amounts to a prior dispute - The right to recover the retention money or any further outstanding liability being a contentious issue cannot be decided by this Bench in a Resolution petition.
In view of pre existing dispute resolution cannot be permitted - Prayer for initiating CIR of the Respondent stands rejected - Application dismissed.
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2020 (1) TMI 1529
Addition u/s 68 - discharge of onus - parties to whom the share certificates were issued and who had paid the share money had not appeared before the Assessing Officer and the summons could not be served on the addresses given as they were not traced - as per HC on voluminous documentary evidence, only because those persons had not appeared before the AO would not negate the case of the Assessee - HELD THAT:- As petitioner, on instructions issued by the Department of Revenue, Ministry of Finance vide F.No.390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw this special leave petition along with pending applications therein due to low tax effect.
Permission granted, subject to just exceptions. The special leave petition and pending applications are dismissed as withdrawn, leaving question(s) of law open.
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2020 (1) TMI 1528
Seeking grant of Bail - recording of statements u/s 161 of 1973 of the code - offence u/s 302 read with Sections 120-B/34, 147, 148 and 149 of the Indian Penal Code, 1860 - HELD THAT:- There has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the Accused. The factors outlined in the case of MAHIPAL VERSUS RAJESH KUMAR @ POLIA & ANR. [2019 (12) TMI 1461 - SUPREME COURT] for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the Accused. These factors by themselves cannot be the basis for refusal of prayer for bail.
The Accused has been in custody for about seven months. In this case also, there are no error or impropriety in exercise of discretion by the High Court in granting bail to the Accused Malkhan Singh.
The order of High Court is affirmed - appeal dismissed.
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2020 (1) TMI 1527
Maintainability of application - Applicant has locus to file this Application or not - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- It is true that the Applicant has not placed any material showing that this debt was acknowledged in between 2004 and 2008. When three years have been passed after loan acknowledgement, such claim is to be treated as time barred debt. Any acknowledgement after expiry of three years, date of acknowledgement cannot be called as acknowledgement as stated under Sec. 18 of the Limitation Act.
We are of the view that no acknowledgement is present to say that this debt is not time barred, for this Applicant has filed Final Order of the DRT before admission of the case by putting it to the notice of the Corporate Debtor, this Bench can even admit this Insolvency and Bankruptcy Application based on the direction given the DRT against the Corporate Debtor by taking the Order passed by the DRT for initiation of CIRP into consideration. For the Debt Recovery Tribunal having passed the order for payment, it is safely inferred that this debt is not time barred, therefore, we hereby admit this Insolvency Bankruptcy Application.
In Section 7 cases, if debt and default are proved as in existence, even if any difference to the quantum of the claim mentioned in the application and the quantum of claim due and outstanding against the Corporate Debtor, for the Applicant having proved the existence debt and default, merely by seeing the difference in the quantum, the Petition shall not be dismissed against the Corporate Debtor - Moreover IRP/RP, as the case may be, is entitled to verify the claim and modify the same, therefore the difference in quantum cannot militate against the purpose and object of admission u/s. 7 of the Code.
Application admitted - moratorium declared.
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2020 (1) TMI 1526
Validity of reopening of assessment u/s 147 - notice u/s 148 was not validly served - no proof of serving notice in the normal course before proceeding with service of notice by way of affixture - mandation of serving officer has to show that all due and reasonable diligent efforts were made to serve the assessee/defendant with the notice - HELD THAT:- As notices are to be served by post or through courier service approved by the Board. In the present case, it is not emanating from records that any effort was made by the Assessing Officer to serve the notice u/s 148 of the Act either through post or courier service approved by the Board. It appears that the Inspector in the first instance itself served the notice on assessee by way of affixture.
Rule 20 mandates that before proceeding with substituted mode of service of notice/summons, the Presiding Officer has to record satisfaction that the notice/summons could not be served in ordinary course. In the instant case, it is not emanating from the records that due and reasonable diligence was exercised by the Assessing Officer for serving notice in the normal course before proceeding with service of notice by way of affixture.
As from the records before us it is not emanating that the AO has recorded satisfaction as envisaged under O5 R20 of CPC that the notice could not be served on the assessee in ordinary course and hence, service of notice has to be effected through substituted mode.
AO has merely observed that notice under Section 148 dated 31.03.2016 was served on the assessee by way of affixture as per Inspector’s report on the same date. The manner of service of notice on assessee is certainly not in accordance with the provisions of Section 282 of the Act or even as per the provisions of Code of Civil Procedure, 1908. Thus, notice u/s 148 of the Act was not validly served on the assessee. In the absence of valid service of notice issued u/s 148 of the Act, the proceedings under Section 148 of the Act are void ab initio and the assessment order passed consequent thereto is null and void.
No notice u/s 143(2) was served on the assessee after filing of return of income - As omission to issue notice under Section 143(2) of the Act is incurable and the requirement to issue such notice cannot be dispensed with. The assessment proceedings sans valid notice under Section 143(2) of the Act are bad in law. Thus, in view of the fact that reassessment order was passed without valid notice under Section 148 of the Act, and notice u/s143(2) of the Act, the same is unsustainable in law. - Decided in favour of assessee.
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2020 (1) TMI 1525
CIT(A) dismissed the appeal ex-parte qua the assessee and had failed to decide the appeal by passing reasoned assessment order - HELD THAT:- We set aside the matter back to the file of the CIT(A) with direction to the CIT(A) to decide the issue on merits by a reasoned order, after affording reasonable opportunity of hearing to the assessee - assessee is also directed to appear before the CIT(A) and participate in the appellate proceedings. The appeal is thus decided on this preliminary issue without going into the merits of the addition.
Hence this appeal is restored back to the file of CIT(A) to decide the issue on merits after affording reasonable opportunity of hearing to the assessee. The assessee is also directed to comply with notices issued by the CIT(A). The preliminary issue raised in this appeal is thus decided in favour of assessee.
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2020 (1) TMI 1524
Money Laundering - proceeds of crime - offence punishable under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 - main allegation in the FIR was with regard to misuse of official position of the accused and to hatch criminal conspiracy to cause loss of revenue to the State Exchequer - criminal breach of trust - HELD THAT:- Matter has been listed by the Registry today after converting it as a Criminal Revision Petition, in compliance of the order dt.1st February, 2019, passed by the Co-ordinate Bench of this Court.
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