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Lakshya Seth Versus Income Tax Officer, New Delhi

2015 (10) TMI 1758 - ITAT DELHI

Revision u/s 263 - as per CIT(A) AO has allowed benefit of section 44AD/AF erroneously without considering whether conditions thereto are fulfilled, and also not by applying provisions of section 69A of the Act - Held that:- AO, after considering the totality of the facts and circumstances of the case, proceeded to estimate the business income of the assessee @8% of gross receipts and made an addition of ₹ 6,11,230/- which was accepted by the assessee without any further litigation. Howeve .....

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trading of cloth and the AO has adopted higher figure taking total amount of gross receipts during the relevant financial period. The CIT has not brought out any fact to establish that the assessee had not undertaken any inquiry in regard to the alleged cash deposited to his bank account and the CIT has not brought out any fact to this effect that in absence of amount and other records, which were lost by the assessee, the AO was not correct in making estimation of business income @8% of gross r .....

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e of the assessee by taking a reasonable and appropriate recourse. Thereafter, the AO proceeded to estimate the business income of the assessee @8% of gross receipts by merely referring to section 44AF of the Act. We cannot ignore this fact that in the letter dated 20.12.2013, the assessee pressing into service his revised computation of income pleaded that the surrendered amount may be considered as business income being 5% of gross receipts but the AO adopted higher percentage of 8% for estima .....

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ce with the provisions of the Act. - Decided in favour of assessee - I.T.A. No. 218/Del/2015 - Dated:- 7-10-2015 - Shri N. K. Saini, Accountant Member And Shri Chandra Mohan Garg, Judicial Member For the Appellant : Shri Suresh K. Gupta, CA For the Respondent : Shri Gajanand Meena, CIT DR ORDER Per Chandramohan Garg, J.M. This appeal by the assessee has been directed against the order of the CIT, Delhi-VII dated 13.11.2014 passed u/s 263 of the Income Tax Act, 1961 (for short the Act) for AY 201 .....

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ASS with the reason that the AO should examine the source of cash deposited in the savings bank account as per AIR information. The AO completed the assessment by making an addition of ₹ 6,11,230/- on surrendered amount made by the assessee vide order sheet dated 20.12.2013 as business income @8% of gross receipts of ₹ 76,40,380 as prescribed u/s 44AF of the Act. Finally, the said addition was made being 8% of turnover made on account of trading of cloth during the relevant financial .....

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tion of the assessee, the CIT held that impugned assessment order is erroneous and prejudicial to the interest of revenue as not only assessment order has been passed in utmost haste and in a cryptic manner but the AO has also allowed benefit of section 44AD/AF of the Act erroneously without considering whether conditions thereto are fulfilled, and also not by applying provisions of section 69A of the Act. The CIT further held that the assessment order passed by the AO resulting into non-applica .....

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of jurisdiction by the CIT for passing impugned order. 5. We have heard arguments of both the sides and carefully perused the relevant material placed on record. The AO picked up the case for scrutiny mainly to examine the source of cash deposited in the saving bank account of the assessee as per alleged AIR information. Ld. AR further contended that the AO considered explanation and submissions of the assessee vide letter dated 20.12.13 and made an addition of ₹ 6,11,230 being 8% of ͅ .....

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ipts/turnover of cloth business of the assessee for determination of business income from trading of cloth earned by the assessee during the relevant financial period which cannot be said to be erroneous or prejudicial to the interest of revenue because the AO has adopted a higher percentage for making estimation of business income of the assessee from cloth business. 6. Ld. Counsel further pointed out that the assessee had declared the details of all seven bank accounts showing total cash depos .....

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assessee and these facts were properly explained before the AO and after examining the same, the AO recorded his satisfaction in this regard. Ld. AR further submitted that there was no mala fide during assessment proceedings as the AO adopted the course in the best interest of the revenue and took 8% of gross receipts of trading business of cloth for estimation of business income of the assessee. The AR has further drawn our attention towards contents of the notice issued to the assessee u/s 26 .....

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e and in the present case, the assessment order cannot be held as erroneous and prejudicial to the interest of revenue. Ld. Counsel finally submitted that as per dicta laid down by Hon ble Jurisdictional High Court of Delhi in the case of ITO vs D.G. Housing Projects Ltd. dated 1.3.2012 in ITA 179/2011, when the AO had adopted one of the courses permissible and available to him and this has resulted in loss to revenue; or two views are possible and the AO has taken one view with which the CIT ma .....

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er percentage of 8% instead of 5% as provided u/s 44AF of the Act, then the view taken by the AO cannot be held as erroneous and prejudicial to the interest of revenue. 7. Replying to the above, ld. DR supporting the action of the CIT submitted that the case was selected for scrutiny with the main objective that the AO should examine the source of cash deposited in the SB account of the assessee and the AO, instead of examining the source of said cash deposit, proceeded to invoke provisions of s .....

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tal turnover/gross receipts are higher than ₹ 60 lakh during the relevant financial year, therefore, the approach of the AO was not sustainable and in accordance with the provisions of the Act and hence, the CIT rightly clothed himself for invoking provisions of section 263 of the Act and for passing impugned order directing the AO to make fresh assessment after considering the correct legal and factual position of the case. 8. In the rejoinder, ld. AR submitted that even if it is presumed .....

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revenue has to be read in conjunction with an erroneous order passed by officer. Ld. AR contended that every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interest of revenue and in the present case, the AO has taken a view by adopting 8% instead of 5% for making estimation of business income of the assessee which was not prejudicial to the interest of revenue and hence notice u/s 263 of the Act and impugned order may kindly be quashed. 9. On car .....

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y, if required and necessary before the order u/s 263 of the Act is passed. Their Lordships also held that in such cases, order of the AO will be erroneous because the order passed is not sustainable in law and said finding must be recorded. The Hon ble High Court made it clear that the CIT cannot remand the matter to the AO to decide whether the findings recorded are erroneous and in the cases where there is inadequate inquiry but not lack of inquiry, again the CIT must record a finding that th .....

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) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessmen .....

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he Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorised by the Board in this behalf under Section 120; (b) "record" shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Co .....

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ch the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.-In computing the period of limitation for the purposes of sub-section (2), the time taken in gi .....

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nditions are satisfied. Firstly, the order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression prejudicial to the interest of the Revenue‟ is of wide import and is not confined to merely loss of tax. The term erroneous‟ means a wrong/incorrect decision deviating from law. This expression postulates an error which makes an order unsustainable in law. 11. The Assessing Officer is both an investigator and an adju .....

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ure to make the enquiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not because a wrong order has been passed on merits. 12. Delhi High Court in Gee Vee Enterprises vs. Additional Commission of Income-Tax, Delhi-I & Ors.,(1975) 99 ITR 375, has observed as under:- "The reason is obvious. The position and function of the Incometax Officer is very different from that of a civil court. The statements made in a pleading proved by the mini .....

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e such as to provoke an inquiry. The meaning to be given to the word "erroneous" in section 263 emerges out of this context. It is because it is incumbent on the Income-tax Officer to further investigate the facts stated in the return when circumstances would make such an inquiry prudent that the word "erroneous" in section 263 includes the failure to make such an inquiry. The order becomes erroneous because such an inquiry has not been made and not because there is anything .....

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nue. After reference to these two decisions, the Delhi High Court observed:- "These two decisions show that it is not necessary for the Commissioner to make further inquiries before cancelling the assessment order of the Income-tax Officer. The Commissioner can regard the order as erroneous on the ground that in the circumstances of the case the Income-tax Officer should have made further inquiries before accepting the statements made by the assessee in his return." 14. The aforesaid o .....

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se of Commissioner of Income Tax vs. Sunbeam Auto Ltd. (2011) 332 ITR 167 (Del), Delhi High Court was considering the aspect, when there is no proper or full verification, and it was held as under:- "We have considered the rival submissions of the counsel on the other side and have gone through the records. The first issue that arises for our consideration is about the exercise of power by the Commissioner of Income-tax under section 263 of the Income-tax Act. As noted above, the submission .....

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ere are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between " lack of inquiry" and " .....

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n 263, it is clear that the power of suo motu revision can be exercised by the Commissioner only if, on examination of the records of any proceedings under this Act, he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue . It is not an arbitrary or unchartered power, it can be exercised only on fulfilment of the requirements laid down in sub-section (1). The consideration of the Commissioner as to whether a .....

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nquiries in matters or orders which are already concluded. Such action will be against the wellaccepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. (See Parashuram Pottery Works Co. Ltd. v. ITO [1977] 106 ITR 1 (SC) at page 10) . . . From the af .....

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ss the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have esti .....

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ust be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed . . . We may now examine the facts of the present case in the light of the powers of the Commissioner set out above. The Income-tax Officer in this case had made enquiries in regard to the nature of the expenditure incurred by the assessee. The a .....

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onclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under Section 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, a .....

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ssing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under Section 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer wou .....

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tion", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An o .....

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ord as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT [see CIT vs. Shree Manjunathesware Packing Products, 231 ITR 53 (SC)]. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. 18. It is in this context that the Supreme Court in Malabar Industrial Co. Ltd. vs. Commissioner .....

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ible and the Assessing Officer has taken one view with which the CIT may not agree; the said orders cannot be treated as an erroneous order prejudicial to the interest of Revenue unless the view taken by the Assessing Officer is unsustainable in law. In such matters, the CIT must give a finding that the view taken by the Assessing Officer is unsustainable in law and, therefore, the order is erroneous. He must also show that prejudice is caused to the interest of the Revenue. 10. When we analyse .....

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itted details of total cash deposit of ₹ 70,77,034 of all seven bank accounts including bank account in HDFC Bank which was pointed out by the AIR information. We cannot ignore that the total financial/trading transaction of the assessee were adopted by the AO for making estimation of business profit at 8% of gross receipts/turnover putting all the accounts together irrespective of any real profit earned by the assessee. When we analyse the application of section 44AF of the Act by the AO .....

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and at the same time when we analyse the totality of the contents of the impugned assessment order, we can safely infer that the intention of the AO was to estimate business income of the assessee and he estimated the same by taking 8% of total gross receipts of ₹ 76,40,380 vide order sheet entry dated 20.12.13 and the AO made an addition of ₹ 6,11,230 as business income from trading of cloth on account of profit earned from this business. However, it is clear that when the gross rec .....

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e Act, we clearly note that the CIT has directed the AO to make a fresh assessment after considering the correct legal and factual position and he has not drawn any definite conclusion that the view taken by the AO is not sustainable and in accordance with law and therefore, the same is erroneous and prejudicial to the interest of revenue. At this stage, at the cost of repetition, we find it appropriate to reproduce relevant operative part of the impugned order which reads as under:- 4. In the i .....

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e assessee has only mentioned loss of cash book and ledgers without specifying any particular financial year, though he has claimed loss of miscellaneous documents of vouchers & other records for the last five years. The Assessing Officer, during the course of regular assessment under reference, conducted no enquiry about the genuineness of the business of the assessee as the assessee could not produce any single document pertaining to his so called business activities. It is not a normal fe .....

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s not applicable in the case of assessee in terms of nature of business & turnover. Assessee did not produce the books of account under the pretext that these were lost but no further enquiry was conducted by the Assessing Officer from the Police Authorities regarding the outcome of the FIR lodged. The Assessing Officer did not even seek a clarification from the assessee as to why audit u/s 44AB of the Act was not conducted and also if the assessee has taken any backup of the so called loss .....

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V AT details in this regard. In such a situation the entire cash deposits in different bank accounts of the assessee should be treated as unexplained money of the assessee u/s 69A of the I.T. Act. 5. In CIT vs Raja Industries (2012) 340 ITR 344 (P&H), it has been held that where enquiry is warranted but not made, it would certainly constitute prejudice to revenue, so that jurisdiction for the Commissioner is available for remanding the matter for such enquiry. 6. In Jyoti Electric Motors Ltd .....

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regard an assessment order to be erroneous when on the circumstances of the case, he finds that it has been made in undue haste and without proper enquiry. It is incumbent on the Assessing Officer to investigate the facts stated in a return particularly when the circumstances suggest that the enquiry would have been necessary or prudent. Hence, the word erroneous would also include a failure to make such an enquiry. 8. Considering the facts of the case and the totality of circumstances, the ass .....

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though the said issues were the most crucial issue for the concerned scrutiny assessment proceedings. Therefore, the order passed by the Assessing Officer u/s 143(3) of the Act is hereby cancelled and the Assessing Officer is hereby directed to make a fresh assessment after considering the correct legal and factual position in this regard, as suggested in this order. 12. In view of above and in the light of ratio of the judgment of Hon ble Jurisdictional High Court of Delhi in the case of ITO v .....

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ioner is available for remanding the matter for such enquiry. In para 6 and 7, the CIT has further noted the ratio of the judgment of Gujarat High Court in the case of Jyoti Electric Motors Ltd. vs CIT (1999) 237 ITR 280 (Guj), and ratio of the judgment of Hon ble Calcutta High Court in the case of CIT vs Active Traders (P) Ltd. (1995) 3214 ITR 583 (Cal) and noted that in the instant case, facts are not disclosed by the assessee in his return of income as regards maintenance of bank accounts and .....

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erroneous and prejudicial to the interest of revenue as not only assessment order has been passed in a cryptic manner but the AO has also the benefit of section 44AD/44AF of the Act erroneously without considering whether the conditions are fulfilled or not. The CIT also held that the assessment order has been passed by not applying the provisions of section 69 of the Act resulting in non-application of correct provisions of law though the said issues were most crucial issues for the concerned s .....

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ails of cash deposits to all the seven bank accounts of the assessee showing total cash deposits of ₹ 70,77,034 during relevant financial period as against the details asked by the AO for only bank account with HDFC Bank about the cash deposit of ₹ 30,59,310 which was reported in AIR information sent to the AO for picking up the case for scrutiny. As we have already observed that the AO estimated the business income of the assessee @8% of ₹ 76,40,380 being gross receipts referr .....

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pplication of 5% in the cases where turnover is not more than ₹ 40 lakh from retail business. 13. On the basis of foregoing discussion, we reach to a conclusion that the AO followed a proper procedure for framing assessment and for estimating business income of the assessee which cannot be held as sustainable or against the provisions of the Act. At this juncture, it would be appropriate to respectfully refer to the dicta laid down by Hon ble Jurisdictional High Court in the case of ITO vs .....

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e whether findings recorded are erroneous. In the case where there is inadequate inquiry but not lack of inquiry, again the CIT must give and record his finding that the order/inquiry made is erroneous and this can happen if an inquiry is conducted by the CIT and thereafter he is able to establish and shows the error or mistake made by the AO, making the order unsustainable in law. It was further held that the matter cannot be remitted for a fresh decision to the AO to conduct further inquiry wi .....

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ightened us by explaining that this distinction must be kept in mind by CIT while exercising jurisdiction u/s 263 of the Act and in absence of the finding that the order is erroneous and prejudicial to the interest of revenue, the exercise of jurisdiction under the said section is not sustainable. It was also held that in most cases of alleged inadequate investigation it will be difficult to hold that the order of the AO, who had conducted inquiries and had acted as investigator is erroneous whe .....

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act of the AO has resulted in loss to the revenue or two views were possible and the AO has adopted one view which was not agreeable to the CIT, then the said assessment order cannot be treated as erroneous order prejudicial to the interest of revenue unless the view adopted by the AO is held as unsustainable and not in accordance with law. In such cases, CIT is required to give a finding that the view taken by the AO is not sustainable as per provisions of the Act and law and therefore, the or .....

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ply stating the details of cash deposits to all seven bank accounts including alleged by the department through AIR information which was considered and examined by the AO. Since the assessee could not submit books of accounts and financial results before the AO and the assessee also lodged an FIR with Police Station, Naraina in this regard, the AO, after considering the totality of the facts and circumstances of the case, proceeded to estimate the business income of the assessee @8% of gross re .....

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an amount of ₹ 40 lakh in the relevant previous year. 17. Furthermore, in the present case, the AO has not taken total turnover of assessee in the trading of cloth and the AO has adopted higher figure taking total amount of gross receipts of ₹ 76,40,380 during the relevant financial period. The CIT has not brought out any fact to establish that the assessee had not undertaken any inquiry in regard to the alleged cash deposited to his bank account and the CIT has not brought out any .....

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he assessee wherein the assessee stated that he had lost his books of accounts and other records, then the AO had no alternative but to estimate the business income of the assessee by taking a reasonable and appropriate recourse. Thereafter, the AO proceeded to estimate the business income of the assessee @8% of gross receipts by merely referring to section 44AF of the Act. We cannot ignore this fact that in the letter dated 20.12.2013, the assessee pressing into service his revised computation .....

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