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M/s Brothers Pharma Pvt. Ltd. Versus Income Tax Officer, Ward 4 (2) , Jaipur.

2015 (12) TMI 765 - ITAT JAIPUR

Addition on account of cash shortage resulting from the excess expenditure incurred - Held that:- Assessing Officer made specific defects in the cash book. The assessee could not be controverted the finding of the Assessing Officer and had not placed any evidence regarding shortage of cash before the lower authorities as well as before us. Therefore, we uphold the order of the ld CIT(A). - Decided against assessee.

Disallowance U/s 40A(3) - Held that:- The assessee has paid salary in .....

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IGH COURT ) has held that exceptional condition mentioned in Rule 6DD are not exclusive. This was the business expdiencies of the company to pay in cash, therefore, we do not find that these payments are covered U/s 40A(3) of the Act. Accordingly, the addition confirmed by the ld CIT(A) is deleted. - Decided in favour of assessee.

Addition on account of expenditure incurred on repair and maintenance treating the same as capital expenditure - Held that:- the assessee has fabricated the .....

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ral written off has not been claimed by the company. The other creditors were advance received from the customer to the tune of ₹ 9,41,354/-, which was paid of in later years. The AR of the assessee filed relevant evidences for repayment in subsequent year, which proved that the assessee’s liability was in existence. The revenue has not brought on record any adversary evidence to establish that liability was not inexistence or not paid in the subsequent year. The assessee has shown ₹ .....

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submissions made by the ld AR on Section 41(1) of the Act, we do not find any reason to confirm the order of the ld CIT(A). - Decided in favour of assessee.

Disallowance of ESI contribution made U/s 36(1)(x) read with Section 2(24)(10) - Held that:- The ld AR has submitted that the said amount of ESI has been paid before due date of return to the fund. In view of the facts and circumstances, we delete the addition made by the Assessing Officer and confirmed by the ld CIT(A). According .....

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and disallowances made in the assessment order dated 28/12/2010 passed U/s 143(3) of the Act is bad in law and on facts of the case, for want of jurisdiction and for various other reasons. Hence, the same kindly be quashed. 2. ₹ 62,328/-:- The ld CIT(A) erred in law as well as on the facts of the case in confirming the addition on account of the alleged cash shortage resulting from the excess expenditure incurred probably from the alleged undisclosed income. The addition so made and confi .....

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f the case. Hence, the same kindly be deleted in full. Alternatively and without prejudice to above, the ld CIT(A) erred in law as well as on the facts of the case in not even allowing depreciation despite holding the expenditure of capital nature. Hence, the depreciation @ 15% kindly be directed to be allowed. 4. ₹ 2,26,805/-:- The ld CIT(A) erred in law as well as on the facts of the case in partly confirming the disallowances made U/s 40A(3) of the Act of ₹ 2,88,000/-. The disallo .....

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me kindly be deleted in full. 6. ₹ 31,06,354/-:- The ld CIT(A) erred in law as well as on the facts of the case in confirming the addition on account of cessation of liability U/s 41(1) of the Act as per details in the impugned order. The additions so made and confirmed by the ld. CIT(A) being contrary to the provisions of law and facts, kindly be deleted in full. 7. ₹ 1,519/-:- The ld CIT(A) erred in law as well as on the facts of the case in confirming the disallowance of ESI contr .....

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al is general in nature, which has not been pressed by the assessee. Therefore, the same is dismissed as not pressed. 3. The ground No. 2 of the assessee s appeal is against confirming the addition by the ld CIT(A) at ₹ 62,328/- on account of cash shortage resulting from the excess expenditure incurred. The assessee is in the business of manufacturing pharmaceuticals. It filed its return on 30/9/2008 at loss income of ₹ 3,32,532/- and book profit of ₹ 1,25,388/-. The case was s .....

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NO. 1 and 2 of the assessment order. After considering the assessee s reply, the ld Assessing Officer held that regarding entries dated 18/07/2007 the assessee failed to produce any evidence that the payments were made by the Directors later on it was reimbursed to them but entered in books on the date of payment. As far as negative balance on other days, the submission of assessee is not acceptable, since each and every narration was given in the entries in the cash book at the time of payment .....

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er had examined the cash book during the course of assessment proceedings. He has confronted the shortage of cash with the assessee. Bill of ₹ 1754/- against the telephone expenses by the Director, which was reimbursed by the firm on 23/07/2008 and same was clerical mistake committed by the Accountant, who made entries in the cash book. Similarly, the cash shortage of ₹ 61,195/- was also clerical mistake as the Accountant had posted the vouchers of different dates i.e. 25/08/2007, 07 .....

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he addition. 5. Now the assessee is in appeal before us. The ld AR of the assessee has submitted that payment of ₹ 1,754/- towards telephone bill, was initially made by the Director Shri Ramesh Taneja out of his own sources however, the reimbursement was made on 23/07/2007 was wrongly recorded in the books of 18/07/2007 and hence a shortage was noticed. With regard to cash shortage of ₹ 61,195/-, these were the payments made on account of salary and wages to the employees/workers for .....

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Thus total taxation of the same income, which is not permitted under the law, therefore, he prayed to delete the addition. 6. At the outset, the ld DR has vehemently supported the order of the ld CIT(A) had argued that the cash shortage admittedly found in the cash book. The assessee had introduced undisclosed income in the cash book. Therefore, order of the ld CIT(A) may please be upheld. 7. We have heard the rival contentions of both the parties and perused the material available on the recor .....

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#8377; 2,725/- on account of repair and maintenance. The ld Assessing Officer observed that the assessee had debited ₹ 15,000/- on 01/08/2007 and ₹ 15,000/- on 10/08/2007 under the head repair and maintenance of video camera. He further observed that the assessee did not own any camera, therefore, these expenses incurred on maintenance of camera owned by the Director. The ld Assessing Officer gave reasonable opportunity of being heard on this issue but the assessee did not furnish an .....

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ash. The Accountant of appellant company had charged these payments to the repairs account. The ld counsel for the appellant had admitted that purchase of CCTV camera constitutes capital expenditure and same may be disallowed but depreciation @ 15% may please be allowed. Accordingly, he held that this expenditure is capital in nature. After allowing deprecation of ₹ 5,575/-, the balance amount of ₹ 32,725/- had been disallowed by the ld CIT(A), accordingly he enhanced addition by  .....

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The details have been narrated by the Assessing Officer on page 2 and 3 of the assessment order, in total ₹ 2,88,000/-. The Assessing Officer gave reasonable opportunity of being heard, which was availed by the assessee vide letter dated 26/11/2010. The contents of the letter had been reproduced by the Assessing Officer on page 3 of the assessment order. After considering the assessee s reply, the ld Assessing Officer held that the assessee had noted down every narration in their cash boo .....

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Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had confirmed the addition partly by observing as under:- 5.1 I have duly considered the submissions of the appellant. The A.O. noticed on the examination of the cash book that the appellant had made payments of salary of ₹ 2,88,000/- to its seven employees on 07/09/2007 in violation of provisions of Section 40A(3) of the IT Act. When confronted, the appellant explained that no .....

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nt of salary for four months was made on 07/09/2007. Further, only a single voucher bearing specific number was mentioned against each cash payment. This fact itself proved that the appellant had violated the provisions of Section 40A(3) of the IT Act. The subsequent vouchers were allegedly fabricated by the appellant. Hence these self made vouchers prepared afterwards are being rejected. The counsel of appellant has argued that addition of ₹ 61,195/- had already been made on account of sh .....

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ssessment order shows that these were payments made on account of salary and wages to the employees/workers for different months and different persons on different dates. However, each such payment was admittedly below the limit of ₹ 20,000/- The appellant had made payments to these persons time to time i.e. on 25/08/2007, 70/09/2007, 18/09/2017 and 28/09/2007 but the Accountant had wrongly accounted on one single date i.e. 07/09/2007 only under the bonafide mistake committed by him, which .....

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t, the same is placed at page No. 123 of the paper book. The appellant had produced various vouchers, which shows individually payment made below the limit. The ld AR has drawn our attention on page No. 9 to 36 of the paper book therefore, he argued that payments were made at the relevant point of time below the limit of ₹ 20,000/-. The ld CIT(A) merely suspected that the subsequent vouchers were fabricated by the appellant without any basis and rather ignoring that the accounts were duly .....

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tton Company Vs. CIT (2003) 30 TW 168 (JD). There was no evidence that the assessee company was having cash crunch. He further relied on the decision in the case of Anupam Tele Services Vs. ITO (2014) 88 CCH 35 (Guj) wherein the Hon'ble High Court followed the decision in the case of Attar Singh Gurumukh Singh Vs. ITO (1991) 191 ITR 667 (SC) on business expediencies wherein it has been held that there were peculiar facts wherein the payee insisted upon cash payment only and following the dec .....

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ard the rival contentions of both the parties and perused the material available on the record. Prima facie it appears that the assessee has paid salary in excess to ₹ 20,000/- and violated the provisions of Section 40A(3) of the Act but it is also revealed that these payments were pertained to salary for the months of May to August. The genuineness of the payments has not been doubted. The employees were insisted upon cash payments only, therefore, to maintain the good relation with them, .....

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sessee s appeal is against confirming the addition of ₹ 51,744/- on account of expenditure incurred on repair and maintenance treating the same as capital expenditure. The ld Assessing Officer observed that the assessee had claimed ₹ 55,939/- on account of repairs and maintenance. ON verification it was found that the expense was in connection with installation of new cooler and duct. Since it was a capital expenditure, therefore, he gave reasonable opportunity of being on this issue .....

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e the ld CIT(A). Therefore, he confirmed the addition. 17. Now the assessee is in appeal before us. It is submitted that the appellant had to take changes in its plant and machinery as per the requirements of the provisions of Drug & Cosmetic Act, 1940, Schedule M. It was not a case of the purchase and installation of new cooler or ducting but changes were made in the existing plant and machinery with a view to cover doors and machine with MS sheets as against the wooden coverage available e .....

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maintenance, which is revenue in nature. Therefore, the same is to be allowed. 18. At the outset, the ld DR supported the order of the ld CIT(A). 19. We have heard the rival contentions of both the parties and perused the material available on the record. After examining page No. 74 to 79 of the paper book, it appears that the assessee has fabricated the evidence at the time of photo copying. Original vouchers were not produced before the ld CIT(A). The genuineness of the expenses has been doub .....

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The ld Assessing Officer had provided 12 opportunities to the assessee to file the confirmation but finally the assessee on 26/11/2010 submitted as under:- As regards to confirmation of various credit balances appearing in the books, we submit as under: a) Confirmation of Shri Amit already submitted at the time of earlier hearing. We also enclosed confirmation of following as could obtained till date: Healman Pharmaceuticals, Jaipur. Vijaydeep Agencies, Jaipur. b) The following credits appearin .....

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hen these loans received for your verification. c) The following parties mentioned by your goodself are related to security deposit held since 1990-91. Aypee enterprises ₹ 15000/- Dayal Enterprises ₹ 15000/- Lovely Pharma ₹ 15000/- Munger Drug Agencies ₹ 15000/- Patliputra Distributor ₹ 15000/- Raj Medical Hall ₹ 15000/- Sita Medical Agencies ₹ 15000/- S.K. Distributors ₹ 15000/- Sneh Drugs ₹ 15000/- Sobhagya Agencies ₹ 2000/- South Poi .....

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old outstanding and were under dispute and finally written off in financial year 2008-09 (A.Y. 2009-10). Arihant trading Co. ₹ 74123/- Outstanding since 2004 Atman Pharmaceutical ₹ 14280/- Outstanding since March 05 Sagar Chemicals ₹ 159972/- Outstanding since May 2006 S.A. Pharma ₹ 40425/- Outstanding since May 2005 Copy of account of written off in year 2008-09 enclosed for verification. As regards to other parties for whom confirmation required, we submit that these h .....

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es subsequently written off during F.Y. 2008-09 has been excluded. As far as other creditors are concerned the assessee had failed to submit confirmation from these persons, even their addresses were not provided by the assessee so that verification could be made by the Assessing Officer himself. To verify whether the amount was outstanding as on date or not. These parties had been shown creditors to the tune of ₹ 9,41,353.99. The amount changes its character when the amount becomes the as .....

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ecision of Hon ble Calcutta High Court in the case of Kesoram Ind. & Cotton Mills Ltd. Vs. CIT (1992) 196 ITR 845 (Cal.) wherein it has been held that the burden is on the assessee to provide that the liability subsists. He further held that outstanding liability already allowed in earlier year, therefore, in absence of any evidence/document/material/correspondence from the assessee s side to prove that the claimed liabilities were still subsisting. Accordingly, he treated ₹ 9,41,353.9 .....

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1995-96. He further relied on the decision in the case of CIT Vs. Rajasthan Golden transport Co. (P) Ltd. (2001) 116 Taxman 60. The amounts of security deposited are assessee s own money due to bar provided in Limitation Act. Even the assessee was not having addresses of these persons Correspondence of M/s Swastik Distributors filed by the assessee relates to F.Y. 1999-2000 where they were claiming the amount but the assessee had not paid their dues till date and even no correspondence was made .....

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ash creditors during the assessment proceedings. The audit report filed by the assessee as on 31/3/2010 in Schedule-4, unsecured loan from Directors and relatives had been shown at ₹ 32,18,318.66 and from others NIL. He held that these persons were neither Director of the company nor the relatives and loan from others was shown at NIL. The assessee failed to furnish confirmation from these persons. The assessee had not paid any interest on these amounts. Therefore, he presumed that these a .....

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at the assessee could file confirmation from Vijaydeep Agencies, Healmen Pharmaceuticals and Sh. Amit only. The Assessing Officer issued notice U/s 133(6) to M/s Healmen Pharmaceuticals, which was returned back. There were certain credit balances which were written off by the assessee in A.Y. 2009-10, which was excluded by the Assessing Officer. Regarding creditors to the tune of ₹ 9,41,354/-, security deposit ₹ 3,60,000/- and unsecured loan of ₹ 18,05,000/-, the assessee could .....

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to 13 years and there is not even a whisper that the assessee intends to return these amounts. He further held that even the unsecured loans are taxable under the head profits and gains of business or profession because the loans were taken for the purpose of business. A perusal of the definition of Section 2(24) of the Act, which defines income would include the value of any benefit or perquisite, whether convertible into money or not, that would arise from the business. He further relied on th .....

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accepted his deposits. The assessee has written off these deposits. The Assessing Officer treated these deposits as revenue receipts, which was held capital receipt by the CIT(A) and Hon ble ITAT. However, the Hon'ble Supreme Court held that these receipts were originally capital receipt but change its character by efflux of time. The Hon'ble Supreme Court relying upon its judgment in the case of Punjab Distilling Industries Ltd. Vs CIT 35 ITR 519 by applying the above said principle, i .....

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ecured loan of ₹ 18,05,000/- was outstanding loan from five parties not four parties mentioned by the ld Assessing Officer. If the amount of Shri Ajit Kumar is included in unsecured loan, the total unsecured loans were ₹ 19.55 lacs. The ld AR has drawn our attention on page No. 9 of the assessment order and balance sheet at page No. 66 of the paper book. He further argued that such type of credit balances does not fall U/s 41(1) of the Act. It is undisputed fact that these amounts we .....

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age of any deduction/allowance in the past inasmuch as it was not at all an expenditure claimed and allowed in the earlier years. These loans were taken in A.Y. 1999 and assessment year 2000-01 was scrutinized U/s 143(3) vide order dated 25/3/2003 for which he has drawn our attention on page No. 110 to 113 of the paper book. The ld Assessing Officer had not made any addition U/s 68 of the Act in scrutiny assessment. Meaning thereby there was no doubt on the fact of genuineness of these loans 22. .....

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ility not existed or waived by the creditor. The number of Hon'ble High Courts held that mere unilateral reversal of entries by one party will not amount to cessation of liability and that expiry of the period of limitation prescribed under the Limitation Act could not extinguish the debt, but it would only prevent the creditor from enforcing the debt. Mere entry in the books of accounts of the debtor, made unilaterally without any act on the part of the creditor, will not enable the debtor .....

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is order. The Assessing Officer as well as the ld CIT(A) had utterly failed to show that some deduction was really claimed and allowed in earlier year. 22.2 He further submitted that ₹ 9,41,354/- were received from the customer, which was paid in the later years, which proved that the related liabilities totaling to ₹ 7,91,354/- towards these Sundry creditors did exit in the subjected year. He has further drawn our attention on page No. 122 of the paper book that the assessee had rep .....

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the assessee. He further relied on the decision in the case of CIT Vs. Bhawan Path Nirman (Bohra) & co. (2002) 258 ITR 440 (Raj.) on cessation liability U/s 41(1) with regard to sales tax refund which has been held by the Hon ble Jurisdictional High court that amount of sales tax refund could not deemed to be income merely by drawing inference that it might have been allowed as deduction in the earlier assessment years. 22.3 The ld AR further submitted that deposits of ₹ 3,60,000/- wer .....

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e ld CIT(A) s order for A.Y. 1996-97 before the Hon ble ITAT, therefore, this issue in hand has become final with respect to the legal position as also on the facts. The ld CIT(A) has not whispered any word even any specific submission made by the assessee during the course of appellate proceedings. Hence no addition is called for. The remaining amount was pertained to M/s Swastik Distributors, the assessee filed confirmation for ₹ 1,64,472.72 which includes ₹ 1 lacs security deposit .....

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ility. There was amendment in the law from A.Y. 1997-98 after that unilateral write-off has been treated a case of remission and cessation but in assessee s case, even there is no unilateral action and had not written off these amounts in the P&L account. He further relied on the decision in the case of CIT Vs. Eid. Mohd. Nizammudin (2007) 294 ITR 139 (Raj.). The Hon'ble Supreme Court in the case of Chief CIT Vs. Kesaria tea Co. Ltd. (2002) 173 CTR 394 (SC) has held that unilateral actio .....

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5 TTJ 317 (Mum) (v) Bindal Duplex Ltd. Vs. ITO (ITA No. 352/Del./2012. Therefore, he prayed to delete the addition. He further argued that the case laws referred by the ld. Assessing Officer and ld CIT(A) are distinguishable fully as in all these cases. There was either unilateral written off or bilateral written off liability, therefore, principle laid down in case of TV Sundaram Iyengar & Sons Ltd. is not applicable in the case of the assessee. 23. At the outset, the ld DR has vehemently s .....

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Assessing Officer as well as ld CIT(A). In one of the case the inquiry letter U/s 133(6) has been returned back to the Assessing Officer. It is fact that these amounts were very old, it is possible that the creditor has closed or shifted the business from the given address. The assessee had produced copy of balance sheet and it is claimed by the assessee that to the tune of ₹ 18,05,000/- are unsecured loan from earlier years, which has not been claimed as deduction or allowances in earlie .....

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y the company. The other creditors were advance received from the customer to the tune of ₹ 9,41,354/-, which was paid of in later years. The AR of the assessee filed relevant evidences for repayment in subsequent year, which proved that the assessee s liability was in existence. The revenue has not brought on record any adversary evidence to establish that liability was not inexistence or not paid in the subsequent year. The assessee has shown ₹ 3.60 lacs as security deposit out of .....

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f Chief CIT Vs. Kesaria Tea Co. Ltd. (supra). The case laws referred by the ld CIT(A) are squarely distinguishable on the ground that there was a written off either by the assessee or bilaterally. After careful consideration of all the facts and circumstances of the case and written submissions made by the ld AR on Section 41(1) of the Act, we do not find any reason to confirm the order of the ld CIT(A). Accordingly, the addition confirmed by the ld CIT(A) is deleted. This ground of assessee s a .....

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ble opportunity of being heard, which was replied by the assessee. Reply of the assessee has reproduced on page No. 10 of the assessment order. After considering the assessee s reply the ld Assessing Officer observed that the assessee had failed to deposit employees ESI contribution for the month or on or before the due date. ESI employees contribution was not deposited on time for the months above i.e. totaling to ₹ 1,519/-. As per provisions of Section 36(1)(x) read with Section 2(24)(x) .....

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provisions of Employees State Insurance Act or any other fund, for the welfare of such employees, was to be included in the income of the assessee. He further held that as per provisions of Section 36(1)(x) of the Act, any sum received by the assessee from any of his employees to which the provisions of Section 2(24)(x) apply, shall be deducted as expenditure, if such sum is credited by the assessee to the employee s account in the relevant fund or funds on or before the due date. The payment o .....

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