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Case Laws
Showing 41 to 60 of 2046 Records
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2018 (10) TMI 2011
Disallowance u/s 40(a)(ia) - Assessee paid interest on car loan availed - 'assessee in default’ u/s 201(1) - whether filing of Form No.26A namely the certificate of the Chartered Accountant as prescribed u/s 201(1) can be taken as a conclusive proof that the recipients of the payment from the assessee has taken into account the sum received from an assessee on which no tax had been deducted at source for computing his income in such return of income?
HELD THAT:- A reading of the proviso to Sec.201(1) of the Act and Rule 31ACB of the Rules shows that once a declaration in Form No.26A by a Chartered Accountant is furnished then the Assessee cannot be treated ‘as an Assessee in default’ and consequently no disallowance u/s.40(a)(ia) can be made.
Requirement in Rule 31ACB is purely procedural and noncompliance of furnishing Form No.26A before the Director General of Income Tax (Systems) cannot be the basis to make disallowance u/s.40(a)(ia) - Rule 31ACB cannot override or provide for more conditions than what is contemplated by the provisions of proviso to Sec.201(1).
The proviso to Sec.201(1) refers to only prescription of particular form and does not authorise laying down any further condition to be satisfied to escape the rigours of Sec.201(1) of the Act. Its fundamental that Rules cannot override the Act.
Disallowance u/s.40(a)(ia) in the present case cannot be sustained and the same is directed to be deleted. Decided in favour of assessee.
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2018 (10) TMI 2010
Rejection of plaint under the provisions of Order VII Rule 11 CPC - suit barred by time limitation or not - non-production of documents - HELD THAT:- The material facts on which the plaintiff's cause of action would arise was duly placed on the record by the plaintiff. The material facts would depend upon the facts of each case and no rule of universal application can be laid. At any point of time, if it is declared by the plaintiff that agreement or any other relevant documents were not available or would be made available subsequently, or unable to produce the same would not meant that during the course of trial also, the plaintiff would not be in a position to produce the same. The suit cannot be rejected on the ground of non production of the documents.
While considering application under Order VII Rule 11 CPC, the Court is not required to take into consideration the defence set up by the defendant in its written statement. The question whether the plaint discloses any cause of action is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. What is to be seen is whether or not the meaningful reading of the plaint discloses cause of action. While considering the application, the strength or weakness of the case of the plaintiff is not to be seen. The Court should look at the plant and documents accompanying the plaint and not the defence of the defendant or the documents relied upon by the defendants. The cause of action is to be culled out on a conjoint reading of all the paragraphs of the plaint - It is not competent for the Court to go into the correctness or otherwise of all the allegations constituting the cause of action, correctness or otherwise of the allegations constituting the cause of action is beyond purview of Order VII Rule 11[a] CPC where the allegations made in the plaint prima facie discloses cause of action, the plaint cannot be rejected.
It is clear that in order to consider Order VII Rule 11 CPC, the Court has to look into the averments made in the plaint as a whole and the same can be exercised by the trial Court at any stage of the suit. It is also clear that the averments in the instant case [Exh. 22] are immaterial and it is the duty of the Court to scrutinize the averments/pleadings in the plaint. The trial Court has overlooked these facts in deciding the application Exh. 22 and thereby ignored the averments made in the plaint. At this stage, the pleas taken by the defendant in its application Exh. 22 or raising of the dispute of non disclosure of cause of action in the plaint are wholly irrelevant, as the matter is to be decided only on the plain averments.
There are no hesitation in reversing the view taken by the learned trial Judge by setting aside the impugned Order dated 17th March 2017 allowing the Application Exh. 22 moved by the respondent-original defendant under Order VII Rule 11 CPC, and thereby rejecting the plaint of the appellant-plaintiff.
Appeal allowed.
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2018 (10) TMI 2009
Sanction of Scheme of Amalgamation - HELD THAT:- Let Notice be served as per requirements of sub-section (5) of Section 230 of the Companies Act, 2013 read with Rule 16 (2) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, along with a copy of the Scheme of Amalgamation on the Central Government, through the Regional Director, Eastern Region, Ministry of Corporate Affairs, Registrar of Companies, West Bengal, Ministry of Corporate Affairs and the concerned Assessing Officer along with the Chief Commissioner of Income Tax with PAN numbers of the Petitioner Companies and also the Official Liquidator, having jurisdiction over the Transferor and Transferee Companies, by hand delivery through personal messenger or by Registered Post or by Speed Post and by Electronic mail.
Petition disposed off.
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2018 (10) TMI 2008
Seeking revocation of the order suspending from service - despite the lapse of six months from the date of suspension, neither has any departmental inquiry been initiated against the petitioner, nor has any charge-sheet been filed - HELD THAT:- Rule 20 of the CDA Rules postulates that placing, of an employee, under suspension, may be effected either by the "appointing authority", or any authority to which it is subordinate, or the Disciplinary Authority, or an authority empowered in that behalf by the management by general or special power.
The inevitable sequitur of this factual position, read in conjunction with Rule 20(1) of the CDA Rules of the NTPC, is, therefore, that the only authority, competent to place the petitioner under suspension would be the Hon'ble President of India. In other words, the 'competent authority', for the purposes of Rule 20 of the CDA Rules of the NTPC would necessarily be the Hon'ble President of India and none other. Sub-rule (3) of Rule 20 makes this expressly clear by stating, specifically, that 'the Competent Authority would be the authority which places the employee under suspension/under deemed suspension or any other higher authority'.
The suspension of the petitioner Kulamani Biswal cannot be allowed to continue any further. It is a matter of record that, till date, no charge-sheet has been filed, against the petitioner in the criminal court, and no disciplinary proceedings have been initiated, against him, either - no review of the suspension of the petitioner, has taken place, on six monthly basis, as mandated by Rule 20(3) of the CDA Rules of the NTPC. No order, communicating the decision of any such review, passed by Hon'ble President of India or by order and in the name of the Hon'ble President of India, stands communicated to the petitioner till date.
The suspension of the petitioner from service, as effected by the order dated 14th December, 2017, cannot be allowed to continue any further - Petition allowed.
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2018 (10) TMI 2007
Levy of service tax for the period prior to 01.06.2007 - Airport Services - HELD THAT:- This Court is of the opinion that since the question as to the correctness of the view expressed by the CESTAT on 02.01.2015 in the order impugned in these writ petitions is primarily the subject matter of appeal, the propriety requires that these writ proceedings should not be entertained. Undoubtedly, the CESTAT’s approach in ignoring the decision of this Court is a matter of serious concern; as a tribunal being subordinate to and subject to the control of this court under Article 226, it was not expected to overlook or disregard the binding decision. Yet that circumstance alone cannot compel us to exercise discretion to entertain these writ proceedings given that the impugned order in these proceedings is primarily a subject matter of appeal before the Supreme Court.
This Court is of the opinion that these writ petitions should not be entertained. It is open to the writ petitioners to seek appropriate remedy in accordance with law. The writ petitions are disposed of
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2018 (10) TMI 2006
ITR - whether Annexure-II is the original Income-Tax Return filed?- HELD THAT:- The dispute and issue whether Annexure-II is the true and correct Return of Income is factual.
Normally, the Income-Tax Returns do not get uploaded to the official website unless the entire amount of tax and interest has been paid.
Prima facie, it appears that Annexure-II relied upon by the Revenue is a computation made by the Central Processing Centre at Bengaluru.
We are not aware whether Annexure-II filed with this appeal was filed by the Revenue before the Income-Tax Appellate Tribunal.
Principal Commissioner of Income Tax will personally examine the matter, if required, ascertain full facts form Central Processing Centre at Bengaluru and file his affidavit within 21 days on different issues highlighted above.
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2018 (10) TMI 2005
Valuation of goods (final products) - inclusion of value of empty gas cylinders, supplied free of cost by the customers for filling Sulphur Dioxide (NRG) in the assessable value or not - HELD THAT:- Reliance placed a decision passed in their own case by this Tribunal in M/S TRANSPEK INDUSTRY LTD. VERSUS CCE VADODARA [2012 (9) TMI 855 - CESTAT AHMEDABAD], wherein the similar issue has been decided in favour of the appellant and accepted by the Revenue.
Demand set aside - appeal allowed.
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2018 (10) TMI 2004
TDS u/s 195 - Non-deduction of TDS u/s 40(a)(ia) on commission to foreign entities - scope for taxing any payments whose genesis was outside India - HELD THAT:- As decided in own case [2018 (7) TMI 1620 - ITAT DELHI] as relying on Kikani Exports Pvt. Ltd [2014 (9) TMI 96 - MADRAS HIGH COURT] non-resident commission agents based outside India rendering services of procuring orders cannot be said to have a business connection in India and the commission payments to them cannot be said to have been either accrued or arisen in India - we are of the considered opinion that the assessee is not liable to deduct tax under the provisions of section 195 on account of foreign agency commission paid outside India for promotion of export sales outside India. Accordingly, the order of the CIT(A) is set-aside and the grounds raised by the assessee are allowed.
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2018 (10) TMI 2003
Deemed Dividend addition u/s. 2(22) (e) - assessee’s common share in both the concerns granting advances to assessee firm - assessee defended the same by submitting that the stated advances were mere trade advances in nature towards purchase of land - HELD THAT:- We find that similar additions u/s 2(22)(e) were made in the hands of the firm which were deleted by first appellate authority in case of the firm Pathik Construction [2015 (2) TMI 898 - ITAT MUMBAI] finding the same to be purely commercial transactions. The stand of FAA has been confirmed by the Tribunal vide cited order.
Therefore, since a view has already been taken, we find no reason to take a different view, the factual matrix being identical.
Another reason to concur with the stand of the assessee is that the assessee herself has not received any amount from the Company rather the amount has been received by the firm, in which the assessee was a partner to the extent of 23%. Therefore, the basic condition of Section 2(22)(e) i.e. the assessee has received the amount from the concern, is missing in the case. Decided in favour of assessee.
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2018 (10) TMI 2002
Unexplained investment in house property - statement recorded u/s 132(4) of the assessee surrendering income at this point - ITAT deleted the addition also confirmed by HC - Held that:- Upon hearing the counsel the Court made the following
Delay condoned. Leave granted.
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2018 (10) TMI 2001
Taxable service or not - prime contention of the appellant is that Industrial Effluent transported by them are not goods and therefore no service Tax can be charged under the head of Transportation of Goods other than Water through pipeline or other conduit - HELD THAT:- The decision of Tribunal in case of M/S GUJARAT STATE FERTILIZERS & CHEMICALS LTD. VERSUS CCE VADODARA [2014 (7) TMI 893 - CESTAT AHMEDABAD] examines the identical issue and held in favour of appellant. The said decision has not been challenged and Revenue and Commissioner (Appeals) has dropped demand of subsequent period following the said decision.
Following the decision of Tribunal in case of GSFC, the demand is set aside and appeal is allowed.
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2018 (10) TMI 2000
Weighted deduction u/s.35(2AB) - R & D expenditure - HELD THAT:- The act does not place any restrictions to incur the expenditure. The expenditure incurred for the purpose of scientific research required to be allowed as deduction u/s.35(AB) subject to complying the conditions laid down in Rule 6. The expenditure was incurred by the assessee which is certified by the tax audit report. There is no dispute regarding the actual amount incurred by the assessee.
The decisions relied upon by the Ld.AR are not directly related to the issue of R&D expenditure incurred over and above the specified limit of DSIR, but the essence of the judgments relied upon by the Ld.AR suggests to allow the actual expenditure. There is no dispute regarding the genuineness of expenditure. Therefore, we hold that the assessee is entitled for the weighted average deduction on the amount actually spent. Decided in favour of assessee.
Disallowance of carry forward additional depreciation in respect of assets acquired in the preceding assessment year - HELD THAT:- It is not disputed that the claim of the assessee was on the balance of the additional depreciation remaining after what was availed on assets acquired during the preceding assessment year. As relying on Brakes India Ltd [2017 (4) TMI 511 - MADRAS HIGH COURT] we direct the AO to allow the claim of the balance additional depreciation.
Additional depreciation on an air circulator - Claim disallowed by the lower authorities considering it to be electrical installation - HELD THAT:- There is nothing on record to show that electrical installation on which additional depreciation was claimed by the assessee was an air circulator which could be construed as plant and machinery. Accordingly, we are of the opinion that lower authorities were justified in denying the claim of additional depreciation on the said item. We do not find any reason to interfere with the orders of the lower authorities.
Proportionate disallowance on the deduction claimed by the assessee u/s.10B - AO charged a part of the R & D expenditure to the units on which assessee was claiming deduction u/s.10B - claim of the assessee was that R & D unit was a separate one and its expenses could not be charged to the units on which deduction was claimed u/s.10B - HELD THAT:- As decided by Hon’ble Apex Court in [2016 (12) TMI 881 - SUPREME COURT] though Section 10A, as amended, is a provision for deduction, the stage of deduction would be while computing the gross total income of the eligible undertaking under Chapter IV of the Act and not at the stage of computation of the total income under Chapter VI. Decided against revenue.
TDS u/s 195 - Disallowance u/s.40(a)(i) - logistic service charges paid to a Non Resident - HELD THAT:- As in assessee’s own case for assessment years 2007-08 to 2009-2010 [2017 (5) TMI 1749 - ITAT CHENNAI] the profits of the services rendered outside India cannot be taxed in India unless the non-resident has permanent establishment/or business connection in India as envisaged in Sec.9(1) - CIT(A) deleted the addition correctly relying on the decision of GE Technological Centre Pvt. Ltd [2010 (9) TMI 7 - SUPREME COURT].
Depreciation at the rate of 60% on UPS - HELD THAT:- CIT (A) was justified in allowing the claim of depreciation at the rate of 60% on UPS.
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2018 (10) TMI 1999
Applicability of sections 10B(7) r.w.s. 80IA(10) - revision u/s 263 - HELD THAT:- As admitted on following substantial questions of law:-
“Whether on the facts, circumstances of the case and in law, the Tribunal was justified in not appreciating the fact that that by arranging its affair with the AE, the assessee has inflated the profit in India on which deduction u/s 10B is claimed and assessee has arranged its transaction to evade the taxes and the provisions of sections 10B(7) r.w.s. 80IA(10) are clearly attracted in the assessee's case?
(ii) Whether on the facts and circumstances of the case and in law, the ITAT was justified in holding that there is no merit in invoking jurisdiction by the Commissioner u/s 263 of the Act in this case?”
We do not think that in the light of this order, we should reopen the finding of the Tribunal that Section 263 of the Income Tax Act, 1961 was not attracted.
To be heard along with other Income Tax Appeal. Assessee waives service.
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2018 (10) TMI 1998
Deemed dividend u/s 2(22)(e) - assessee received a loan from company in which assessee is the beneficial owner of shares holding more than 10% of shares in the said company - HELD THAT:- As find that the amounts have been indeed received by Barkley Retails Pvt. Ltd. which can be considered as a trade advance. Thus we find that, the observation of the CIT(A) that the advance was utilized for personal purpose and not for meeting the business expediency is based on wrong interpretation of the facts. Hence placing reliance on the judgment of Bagmare Constructions Pvt. Ltd.[2015 (1) TMI 403 - KARNATAKA HIGH COURT] addition made is hereby directed to be deleted.
Disallowance u/s 14A - as argued During the year the assessee has not earned any exempt income - AO has disallowed an amount u/s 14A which the CIT(A) has confirmed - HELD THAT:- As in the case of CIT Faridabad v. Lakhani Marketing INC [2014 (7) TMI 44 - PUNJAB AND HARYANA HIGH COURT] have held that the disallowance u/s 14A can be made only to the extent of receipt of dividend income. Since in the instant case the assessee has not earned any exempt income no disallowance u/s 14A is warranted. Appeal of the Assessee is allowed.
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2018 (10) TMI 1997
Exemption under Notification No. 89/95-C.E., dated 18-5-1995 - wastes, gums, etc. arising during the course of refining of vegetable oil - HELD THAT:- As the issue has already been settled by the Larger Bench of this Tribunal in the case of M/S RICELA HEALTH FOODS LTD., M/S J.V.L. AGRO INDUSTRIAL LTD., M/S KISSAN FATS LIMITED VERSUS CCE, CHANDIGARH, ALLAHABAD [2018 (2) TMI 1395 - CESTAT NEW DELHI], wherein it has been held that wastes, gums, etc., arising during the course of refining of vegetable oil, the appellant is entitled for exemption under Notification No. 89/95-C.E. ibid therefore, it is held that the appellant is entitled for exemption under Notification No. 89/95-C.E. ibid.
Appeal allowed.
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2018 (10) TMI 1996
Non-allowability of deduction on account of investment in subsidiary company written off - as argued by learned Additional Solicitor General, that the Order of the High Court is non-speaking inasmuch as it has not given its own reasons.
HELD THAT:- Issue notice, returnable in three weeks.
This Court shall also decide on the next date of hearing whether the case should be sent back to the High Court for reconsideration
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2018 (10) TMI 1995
Gain on land sold - nature of land sold - Capital asset u/s 2(14) - Whether the land is situated within Municipal Limit or not? - urban or rural land - AO held that since the land sold by the assessee falls within one kilometer on left hand side of Mohali – Kharar Road (National Highway -21), the sale consideration received on its transfer is chargeable to capital gains - HELD THAT:- The Sub-Registrar vide report No. 6 dt. 03/01/2014 and No. 50 dt. 22/01/2014 has intimated that the land sold by Smt. Tej Kaur is Rural land and outside the Municipal limit of Kharar and Mohali. Its distance from National Highway No. 21 is above 1 K.M.(4427 ft. 804 Karam). Accordingly, the land of the assessee is out of urban area.
Thus after making due enquiries the ITO has accepted the returned income in the case of one of the applicants namely Smt. Tej Kaur in the earlier year, hence, it can be said that the Revenue, having accepted the distance after due enquiries bringing the proceeds of the sale of remaining part of the land to taxation cannot be accepted. Not only that, the certificate from the Tehsildar, Mohali again reiterated the fact that the land in question is beyond the distance of 1 Km from the National Highway.
Certificates of the Land Revenue Authorities, and orders of the Department in the case of the one of the assessee for the earlier years, we hereby direct that the addition made be deleted. Appeals of the Assessee are allowed.
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2018 (10) TMI 1994
TP Adjustment - ALP determination - export of finished goods by the appellant to its parent company for further sale to independent customers at same prices - HELD THAT:- As the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in assessee’s own case [2018 (5) TMI 900 - ITAT KOLKATA] and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings of the Division Bench, in assessee`s own case (supra). Respectfully following the above binding precedent, we uphold the contention of the assessee and we delete the ALP adjustment made by ld TPO/AO.
Arm’s length price adjustment made in respect of payment of Information Technology (IT Service Cost) and payment of technical support service cost - HELD THAT:- This Tribunal in assessee’s own case [2018 (5) TMI 900 - ITAT KOLKATA] we uphold the contention of the assessee and we delete the ALP adjustment made in respect of payment of Information Technology (IT Service Cost), and arm’s length price adjustment made in respect of payment of technical support service cost. Assessee appeal allowed.
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2018 (10) TMI 1993
Levy of Service Tax - incentive received under dealership agreement with Maruti - sale of spare parts during the servicing of the vehicle - RTO charged required for a registration with RTO for getting the sold vehicle registration - CENVAT Credit on various input services - HELD THAT:- These issues have been decided in favour of appellant in the identical set of facts and circumstances by TOYOTA LAKOZY AUTO PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX/CENTRAL EXCISE MUMBAI -II / MUMBAI - V [2016 (12) TMI 541 - CESTAT MUMBAI] where it was held that This Tribunal, in its recent order in M/S ARPANNA AUTOMOTIVE PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE [2016 (3) TMI 308 - CESTAT MUMBAI], held that the Service Tax liability confirmed under Business Auxiliary Service for the amount of RTO registration fees is set aside.
Service tax on the handling charges incurred by the appellant while selling motor car from M/s Maruti Udyog Ltd. - HELD THAT:- This issue is also covered in favour of appellant by the decision of this Tribunal in case of AUTOMOTIVE MANUFACTURERS PRIVATE LTD VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, NAGPUR [2015 (2) TMI 972 - CESTAT MUMBAI], wherein it was held that we do not understand how service tax levy would apply especially when the goods are subject to sales tax/VAT on a value inclusive of handling charges. It is not in dispute that the handling charges are incurred in connection with the procurement of the parts. If that be so, they will obviously form part of the value of the goods when they are subsequently sold.
Sale of spare part, sold while servicing of the motor vehicle, which the department intends to include in assessable value in terms of Section 67 of the Finance Act for payment of service tax - HELD THAT:- The issue decided in favour of appellant in M/S TANYA AUTOMOBILES PVT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, MEERUT-I [2016 (1) TMI 704 - CESTAT ALLAHABAD] where it was held that the cost of items supplied/sold and there is documentary proof specifically indicating value of the goods, the demand of Service Tax against the assessee for the cost of the goods supplied during repair does not appear sustainable. In this view of the matter, we set aside the impugned order and allow the appeal with consequential benefits.
CENVAT Credit on various input services - HELD THAT:- The same has been paid along with interest before issue of Show Cause Notice and the same, therefore, stands settled.
The issue is settled in favour of the appellant and hence the impugned order is not sustainable - appeal allowed partly.
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2018 (10) TMI 1992
Addition of Long term capital gain - Transfer of capital asset u/s 2(47) - relevant date of transfer - addition invoking the provisions of section 50C - valuation of the impugned property as per the stamp duty guideline for A.Y. 2007-08 - HELD THAT:- As joint property was owned by both the assessees who are husband and wife - we find that the assessee has been successful to demonstrate that there was a valid transfer of the impugned capital asset as per the provision of section 2(47) of the Act on 24.03.2007 as the assessee received total sale consideration through account payee cheque and possession was also given to the buyer and the assessee offered the capital gain from the impugned transfer in its income tax return for F.Y. 2007-08.
We, therefore, are of the considered view that both the lower authorities erred in applying the valuation of the impugned property as per the stamp duty guideline for A.Y. 2007-08, merely for the reason that sale deed was registered on 04.08.2007. No addition was therefore, called for by applying the value of property at Rs.1,23,00,000/-. We accordingly delete the addition each made in the hands of both the assessees and allow the ground raised in both the appeals.
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