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2016 (3) TMI 1109 - ITAT RAJKOT

2016 (3) TMI 1109 - ITAT RAJKOT - TMI - Treatment to income from letting - income from house property or business income - Held that:- In the present case, we find that one of the main object of the assessee was to run classes and to do educational activities and the property which has been let out by the assessee was a commercial property and was also used by the person to whom it was leased, for the purpose of educational activities. We further find that Hon’ble Gujarat High Court in the case .....

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son for his use, the income derived would be business income irrespective of the manner in which it is exploited by the owner of business. - In the present case the finding of ld. CIT(A) that asset is a commercial asset has not been controverted by Revenue. In such a situation, we do not find any infirmity in the order of ld. CIT(A) and for which we also find support by the recent decision of Hon’ble Calcutta High Court in the case of Shyam Burlap Co. Ltd. vs. CIT reported in (2015 (9) TMI .....

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ground of Revenue is dismissed. - Addition on account of unaccounted investment u/s.69 - Held that:- . In the present case, we find that A.O. had proceeded to disallow the expenses of labour on the basis of estimation and has not brought any material on record to demonstrate that the investment were not recorded in the books of account. On the other hand, before us, ld. A.R. has submitted that the expenses having been incurred in subsequent years and has also placed on record the copy of le .....

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ound of Revenue is dismissed and ground of assessee in C.O. is allowed. - Addition on account of labour expenses - Held that:- In the present case, we find that A.O. has proceeded to disallow the expenses of labour on estimation basis. He has not brought any material on record to demonstrate that the expenses were incurred by the assessee. Before us, ld. A.R. has submitted that the expenses having been incurred in subsequent years. The aforesaid statement of the assessee has not been controv .....

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see : Shri D. M. Rindani, C. A. ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER These appeals of Revenue and cross appeals of assessee and Cross Objection of Assessee are against the order of CIT(A)-XVI, Ahmedabad, dated July 15th, 2013 for A.Y. 2009-10, 08.01.2015 for A.Y. 2010-11 & 06.01.2015 for A.Y. 2011-12. 2. Before us, at the outset, ld. A.R. submitted that though the appeals pertain to different assessment years, but most of the issues are identical except for the amounts and assessment .....

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of income for A.Y. 2009-10 on 29.07.2009 declaring total income of ₹ 35,620/-. The case was selected for scrutiny and thereafter the assessment was framed u/s.143(3) vide order dated 19.12.2011 and the total income was determined at ₹ 11,90,100/-. Aggrieved by the order of A.O., assessee carried the matter before the ld. CIT(A) who vide order dated 15.07.2013 (in Appeal No. CIT(A) - XVI/ITO/Wd.2/SNR/561/11-12) granted partial relief to assessee. Aggrieved by the order of ld. CIT(A), .....

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tricted the addition of ₹ 2,97,930/- on account of unaccounted investment u/s.69 of Act to ½ without any cogent reason. 4.1 On the other hand, the grounds raised by assessee in C.O. No.3/Rjt/14 reads as under: 1. The Learned Commissioner of Income-tax (Appeals)-XVI, Ahmedabad has erred in confirming addition of ₹ 1,48,965/- being 50% of ₹ 2,97,930/- made by I.T.O. Ward-2, by way of treating labour expenses as unaccounted investment u/s69 of the Income-Tax Act, 1961. We f .....

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He thereafter proceeded to tax the income as house property income and after granting statutory deduction u/s.24 of the Act and other deductions determined the income of ₹ 8,92,173/- as income from house property. Aggrieved by the order of A.O., assessee carried the matter before the ld. CIT(A), who vide order dated 15th July, 2013, decided the issue in favour of assessee by holding as under: 3.2 I have carefully considered the facts of the case in the light of submissions made by the appe .....

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impugned property as that of an educational institute and hot residential, a copy of property tax / Nagar Palika Tax Bill issued by Surendranagar Municipal Authorities indicating that the tax applied is that for commercial property as against residential property, a copy of construction plan approved by Surendranagar Municipal Authority indicating that the impugned property was passed as a school building. The appellant has argued that the main objective of the partnership firm incorporated on 4 .....

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operty on rent to carry out education activity is incidental to the main object of the firm. Asserting that facts of judicial decisions relied upon by the A O are distinguished from appellants facts, the appellant has placed reliance upon decision of Hon'ble Madras High Court in the case of CIT vs B Nagireddy 147 ITR 337 and of Hon'ble A P High Court in the case of CIT vs Ramaiya Krishnamurty 159 !TR 929. 3.3 On careful consideration of the facts of the case, it is revealed that the main .....

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aken by the Id A O, the appellant has disclosed the said amount of monies received on letting out of its property as business income. The appellant is of the view that the property under consideration is a commercial property; It has been argued that appellant is engaged in the business of creating properties and thereafter letting them out as well as running educational institute. It has been submitted that in the instant case, a commercial property was created and since, on acquisition of the .....

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ast Ltd 237 ITR 454 (S.C.), Hon'ble Apex Court have held that no precise test can be laid down to ascertain whether income, referred by whatever nomenclature, receipt from letting out of asset would fall under the head income from business / profession and that it is always a mix question of law and facts and has to be determined from the point of view of the businessmen of that business. Thus, it has been held that if only a few of the business assets are let out temporarily while the asses .....

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was to be taxed as business income and not as income from house property, -the relevant portion of the said judgement are as under :- ……….We need not discuss all the judgments relied upon by the learned counsel for the department, as the principle of income from property is an income of profit and gain of business, or profit and gain from the house property have been clearly laid down by the Supreme Court. The test laid down by the Supreme Court in Universal Plast Ltd.'s .....

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dential houses, and the ancillary object was to carry on business of leasing, hire-purchase, renting, selling, reselling or otherwise dispose of all forms of movable or immovable properties and assets including buildings, godowns, warehouses and real estate of any kind. The assessee purchased flats for trading purposes, at the cost of ₹ 4 crores. At the time of purchase, according to the assessee, it was expected that the value of the flats would go up, after completion of repairs. The fla .....

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t be treated as 'income from business' and should be treated as 'income from house property'. 11. In New India Industries Ltd.'s case (supra) [(1993) 201 ITR 208 (Gujarat)], the Gujarat High Court had laid down nine tests to decide as to under which head of income, the 'rental income' would fall. The Gujarat High Court, held that the assessee never wanted to exploit the asset as a commercial asset for any commercial gain. It acted like a prudent owner of the property. .....

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our opinion, the following principles emerges : (i)No general principle could be laid down which is applicable to all cases and each case has to be decided on its own facts and circumstances. (ii)Whether an income falls under one head or another has to be decided according to the common notions of a practical and reasonable man, for the Act does not provide any guidance in the matter. (iii) In each case, what has to be seen is whether the asset is being exploited commercially by the letting out .....

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his business. Whether he uses that commercial asset himself for lets it out to somebody else to be used. The asset would not cease to be commercial asset simply because temporarily it was put out of use or it was let out to another person for his use. (v)So long as the Commercial asset is capable of being exploited as such, its income is business income irrespective of the manner in which the asset is exploited by the owner of the business. He entitled to exploit it to his best advantage and be .....

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As the owner of the asset, he may exploit such asset but, in such circumstances, income which he receives is no longer business income but income from property owned by him and, hence, "income from house property". (viii)When the asset is in the nature of land or building capable of being used for any other purpose and when the assessee ceases to use it is as a commercial asset either himself or even through others, the income derived by him by renting out the same would made appropri .....

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activities of the assessee. (ix) In the descending whether an assessee dealt with its property as owner or as a businessman or as a prudent man of commerce. One must see not the form which it gave to the transaction but to the substance of the matter. In which that property is used, ownership of property and leasing it out may be done as a part of business or it may be done as a landowner. Whether it is the one or the other must necessarily depend upon the object with which the act is done. If .....

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izers Ltd v. CIT [1997] 227 ITR 172 / 93 Taxman 502 (SC), Sultan Bros. (P.) Ltd.'s case (supra), Commercial Properties Ltd. v. CIT AIR 1928 Cat. 456, East India Housing & Land Development Trust Ltd. v. CIT [1961] 42 ITR 49 (SC), CIT v. Punjab National Bank Ltd. [1983] 141 ITR 886/ 13 Taxman 32 (Delhi)], CIT v. Indian Metal and Metallurgical Corpn. [1995] 215 ITR 424/[1996] 84 Taxman 481 (Mad.), CIT v. Arvindkumar Odhavij [1995] 213 ITR 551 (Bom.), and other cases, it did not apply the pr .....

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wood, paper etc., more or /ess connected with science, as given in clause 3(a) of the Memorandum of Association. Out of the three properties in Mumbai, the property in dispute was being used for its Regional Office. In the interest of the company, it decided to let out one of its properties, to the City Bank, by way of exploitation of business assets, for making profit. The assets were let out, while carrying out other business activities. There was nothing on record to show that the assessee ha .....

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ed the ratios laid down by Apex Court as well as Hon'ble jurisdictional High Court(as in the case of CIT vs New India Industries Ltd 201 ITR 208 (Guj). Analysing the facts of present case with the test laid down by Hon'ble Gujarat High Court supra, it is seen that in the present case, evidence on record indicate that the property let out by the appellant is a commercial property/commercial asset. There is also no dispute that the property under consideration, is capable of being used onl .....

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that in the case of Vyline Glass Works Ltd quoted at 20Taxman.com 32, Hon'ble ITAT, Chennai took a similar view holding ".....The fact coming out of the above situation is that the nature and character of the properties exploited by the assessee company to carry on its business remained the same even after the properties were let out to M/s. Borosil Glass Works Ltd. Before and after the lease agreement, the nature and character of the assets remained the same. The assets were retaining .....

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cturing glass products is carried on by the assessee company itself or by M/s. Borosil Glass Works Ltd., the lessee, the assets including land, buildings, plant and machineries always remained as properties in the nature of commercial establishments occupied for the purpose of carrying on business. In other words, it was always economic/productive asset. Section 2(ea) excludes such assets from the definition of assets operative from first day of April, 1993. Any property in the nature of commerc .....

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carried on by the owner itself. It could be seen that the difference in the wordings of items(3) and (5) provides that the emphasis is on the nature of the asset and not on who is carrying on the business Therefore, what is to be seen is that even though the assessee is receiving lease rent from the lessee, the property remained a commercial asset exploited for the purpose of carrying on manufacturing business....." 3.6 Similar view has been taken by Hon'ble ITAT, Cuttack in the case o .....

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authorities to refuse the assessee's claim of rendering income from business activities by holding the annual letting out value subject to deduction under the provisions of Section 24(b). The Assessing Officer has rather misdirected himself to hold the case laws cited by him leaning in favour of the Department when actually the Department's appeal had been dismissed by the Hon'ble Apex Court on the finding as was that the partners pooled their resources for carrying on an adventure .....

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could not have utilised the property for its own commercial venture, when the manufacturing unit had been shifted to Mancheswar Industrial Estate area. I am of the considered view that this observation of the learned CIT(A) rather leans in favour of the assessee's claim that the bank took cognizance of the commercial viability of this project to grant loan which partners pooled their resources to repay the loan and let out the property to the commercial organizations for earning income again .....

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as been paid to the bank. The assessee's contention therefore becomes clear insofar as it rendered its income, residual to receipts from the lessees on account of electricity, water charges etc., which are the business activities from the assesses to charge for their portion and incur the remaining for itself along with the maintenance and providing security was in the nature of carrying out commercial activities and not for the purpose of letting it out as house property. On perusal of the .....

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mselves are business entities. It is not the case of the Assessing Officer that the annual letting value will differ for the purpose of determining the income from house property as provided under law. For the reasons discussed above, the impugned orders of the authorities below are set aside with a direction to the Assessing Officer to accept the return of the assessee holding the same as income from business and not income from house property......" 3.7 Respectfully following the judicial .....

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of ₹ 8,92,173/- is deleted and the ground of appeal No. 1. 1.1, 2 & 2.1 are accordingly allowed. 6. Aggrieved by the order of ld. CIT(A), Revenue is now in appeal before us. 6.1 Before us, ld. D.R. took us through the observations of A.O. as noted in the assessment order and supported the order of A.O. Ld. A.R. on the other hand, reiterated the submissions made before A.O. and ld. CIT(A) and supported the order of ld. CIT(A). 7. We have heard the rival submissions and perused the mater .....

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wn by Hon ble Gujarat High Court in the case of CIT vs. New India Industries Ltd. [1993] 201 ITR 208 (Guj) has given a finding that the property let out by assessee was a commercial asset which could only be exploited commercially and therefore the income earned was treated as business income. We also find that ld. CIT(A) while deciding the issue in assessee s favour had also relied on various decisions cited in his order. In the present case, we find that one of the main object of the assessee .....

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wn the principle that when an assessee derives income from a commercial asset which is capable of being used as a commercial asset and the asset would not cease to be commercial asset simply because temporarily it was not put to use or was let out to other person for his use, the income derived would be business income irrespective of the manner in which it is exploited by the owner of business. In the present case the finding of ld. CIT(A) that asset is a commercial asset has not been controver .....

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e, the income from letting was considered as business income of the assessee. In view of the aforesaid facts and relying on the aforesaid decisions of High Courts, we find no reason to interfere with the order of ld. CIT(A) and thus the ground of Revenue is dismissed. 8. Ground no.2 is with respect to restricting the addition on account of unaccounted investment u/s.69 of the Act. 8.1 On verification of the construction account, A.O. noticed that assessee had incurred various expenses aggregatin .....

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nd acceptable to A.O. He was of the view that around 33% of expenses should constitute labour expenses and in the absence of proof of incurring of any expenses towards labour by assessee, he estimated ₹ 2,97,930/- (being 33% of ₹ 9,02,823/-) as unrecorded investment and made addition u/s.69 of the Act. Aggrieved by the order of A.O., assessee carried the matter before the ld. CIT(A) who granted partial relief to assessee by holding as under: 4.2 I have carefully considered the facts .....

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vincing. The fact of the matter however remains that the appellant either during the assessment proceedings or even during current appellate proceedings has failed to give even an iota of evidence so as to indicate that the labour expenses were paid in any subsequent financial year. This aspect is important because nearly four years have lapsed since the labour services were availed by the appellant. The argument if any that the said expenses are pending finalisation till date is highly improbab .....

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f the addition made by the ld A O is reduced to half. Accordingly the addition made by the ld A O is confirmed to the extent of ₹ 1,48,965/- and the balance is deleted. The grounds of appeal No. 3,3.1,3.2,3.3 & 3.4 are accordingly partly allowed. 9. Aggrieved by the order of ld. CIT(A), Revenue and assessee are now in appeal before us. 9.1 Before us, ld. D.R. supported the order of A.O. On the other hand, ld. A.R. reiterated the submissions made before A.O. and ld. CIT(A) and further s .....

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d. In the present case, we find that A.O. had proceeded to disallow the expenses of labour on the basis of estimation and has not brought any material on record to demonstrate that the investment were not recorded in the books of account. On the other hand, before us, ld. A.R. has submitted that the expenses having been incurred in subsequent years and has also placed on record the copy of ledger account. The aforesaid statements of the assessee has not been controverted by the Revenue. In view .....

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s dismissed and C.O. of assessee is allowed. Now, we take Assessee s appeal for A.Y. 2010-11 in ITA No.98/Rjt/2015 12. Assessee filed its return of income for A.Y. 2010-11 on 15.07.2010 declaring total income at Nil. The case was selected for scrutiny and thereafter assessment was framed u/s. 143(3) of the Act on 22.03.2012 and the total income was determined at ₹ 20,24,290/-. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 08.01.2015 (in .....

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n of ₹ 10,08,000/- made by the A.O. u/s 22 of the Act and thereby not allowing expenses incurred and debited in its profit and loss account by the appellant to earn business income. 3. The learned Commissioner of Income Tax (Appeals)-7, Ahmedabad erred in upholding addition of ₹ 1,68,493/- made by the A.O. by way of labour expenses by failing to appreciate that no such expenditure was incurred by the appellant. 13. The first two grounds being interconnected, considered together. 13.1 .....

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efore asked to show cause as to why the rent income not be considered as income from house property. The submissions of the assessee inter alia that the building from which it had received rent was not considered as investment but was considered as commercial assets and other submissions, were not found acceptable to the A.O. He, thereafter, treated the rental income of ₹ 14,40,000/- as income from house property and after allowing statutory deduction u/s.24 of the Act, determined the net .....

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arious case-laws including CIT(A) s order in its own case in the preceding year. The issue whether the income is to be taxed under the head house property or business income has been decided by the Hon'ble Calcutta High Court in the case of Shambhu Investment Pvt. Ltd. (2003) 129 Taxman 70. The Hon'ble Supreme Court has affirmed the order of Hon'ble Calcutta High Court and held as under: "Hence, we hold that the prime object of the assessee under the said agreement was to let ou .....

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insukia Development Corporation Ltd. Vs. CIT (Cal.) 120 ITR 466 and CIT Vs. Mithila Properties Publications & Contractor Enterprises P. Ltd. (Pat) 228 ITR 713 that "assessee is owner of building on leasehold land - rental income is income from house property even though letting out is an objective of company." It has also been also held in the case of ACIT Vs. Raj Dadarkar & Associates (ITAT, Mum) 34 SOT 281 that "assessee was in possession and control of market area as a .....

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re us. 15.1 Before us, ld. A.R. reiterated the submissions made before the A.O and ld. CIT(A) and further submitted that one of the main object of the assessee firm was to run class and to do educational activity, for which, the firm has created necessary set up in its premises. It was further submitted that instead of carrying out the educational activity on its own, it had given property at rent to other education trust for running class and thus, the giving of property on rent for carrying ou .....

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, ld. CIT(A) in the impugned year held the income to be from business. He pointed to the relevant findings of ld. CIT(A) in order passed by him for A.Y. 2009-10. He, therefore, submitted that since the facts of the case in the year are identical to that of A.Y. 2009-10 and in the absence of any change in facts, the income should be considered to be as business income . Ld. D.R., on the other hand, supported the order of A.O. and ld. CIT(A) . 16. We have heard the rival submissions and perused th .....

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ing the assessment for A.Y. 2009-10. Ld. CIT(A) while deciding the issue in A.Y. 2009-10 has noted that the property let out by the assessee was a commercial property/commercial asset. He further after placing reliance on the various decisions cited in the order including decision of Hon ble Gujarat High Court in the case of CIT vs. New India Industries Ltd. [1993] 201 ITR 208 (Guj) and various decisions held the income to be from business and not from house property. We, while deciding the iden .....

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tion of ₹ 1,68,493/- on account of labour expenses. 17.1 During the course of assessment proceedings and perusing the bandkam (construction) account, A.O. noticed that assessee has incurred expenses aggregating to ₹ 5,22,532/- for the material used for construction. He also noticed that though as per the construction account, all materials debited to construct house have been stated to have been consumed but assessee had debited labour expenses of only ₹ 3,942/- for electric ma .....

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ment of assessee was not found acceptable to the A.O. A.O., thereafter, worked out labour expenses at ₹ 1,68,493/- (being 33% of material consumed) and treated it as unexplained investment u/s.69 of the Act. 18. Aggrieved by the order of A.O., assessee carried the matter before the ld. CIT(A) who upheld the addition by holding as under: 5.2 I have considered the assessment order and the submissions made by the appellant. The appellant has shown only ₹ 3,942/- as labour expenses again .....

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r is accordingly confirmed. 19. Aggrieved by the order of ld. CIT(A), assessee is now in appeal before us. 19.1 Before us, ld. A.R. reiterated the submissions made before the A.O and ld. CIT(A) and further submitted that A.O. has proceeded to make the addition on estimated basis without bringing any material on record and further the percentage of labour charges as also an ad hoc estimation. He also submitted that similar addition was made by A.O. in A.Y. 2009-10. He further submitted that the e .....

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record to demonstrate that the expenses were incurred by the assessee. Before us, ld. A.R. has submitted that the expenses having been incurred in subsequent years. The aforesaid statement of the assessee has not been controverted by the Revenue. In view of the aforesaid facts and more so, when the addition has been made on estimated basis and without bringing any material on record by Revenue to prove the incurring of expenses towards labour by assessee, we are of the view that in the present .....

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