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DCIT, Circle- 4 (1) And ACIT, Central Circle- 6, New Delhi Versus JSL Ltd.

2017 (12) TMI 422 - ITAT DELHI

Addition u/s 14A - Held that:- As decided in assessee's own case no material has been placed on record to show that the assessee has incurred some expenditure for earning tax-free income. In our opinion, although, there is no disallowance of interest expenditure for earning tax-free dividend income, however, it cannot be said that no administrative expenditure has been incurred for earning the tax-free income of ₹ 3,60,000/- on the investment of ₹ 15,00,000/-. Since the dividend inco .....

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sidering the totality of the facts of the case, disallowance of ₹ 25,000/- under the facts and circumstances of the case, in our opinion, will meet the ends of justice - Disallowance on account of capitalization of interest - assessee company on the one hand has made decapitalization of interest income of ₹ 3066.07 lacs and on the other hand has shown such interest expenses as revenue to the extent of ₹ 9539.99 lacs - Held that:- We find identical issue had come up before t .....

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ce. The ground raised by the Revenue is accordingly allowed for statistical purposes. - Claim of deduction u/s 80IA - Form No.10CCB filed by the assessee is incomplete and proper balance sheet and profit and loss account are not available for each unit - Held that:- Since the Tribunal has already upheld the order of the ld. CIT(A) on this issue in the immediately preceding assessment year, therefore, following the same, we find no infirmity in the order of the ld. CIT(A) allowing the claim o .....

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e is not required to demonstrate or prove as to whether the debt has actually become bad debt. The Revenue cannot insist on demonstrative proof as to whether the debt has become bad debt and non-initiation of legal proceedings against the debtor would also not automatically lead to the inference that the assessee is not entitled to write off the amount of the bad debt. In view of the above, we find no infirmity in the order of the ld. CIT(A) deleting the disallowance - Determination of the a .....

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eted the balance amount we find the Revenue has challenged the deletion for addition of ₹ 21,54,152/- and has not challenged for the balance addition. So far as the addition of ₹ 21,54,152/- is concerned, the assessee has demonstrated before the ld. CIT(A) that he has also entered into transaction on sale of J4 HRAP Coils with unrelated third parties on 14.03.2005 at the price of USD 1120 PMT. Therefore, the ld. CIT(A) was fully justified in upholding the action of the CUP method. .....

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ubmissions/details filed by the assessee in the Paper Book. The grounds by the assessee are accordingly allowed for statistical purposes. - ITA No.4111/Del/2013 And ITA No.4248/Del/2013 - Dated:- 3-11-2017 - SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER For The Department : Shri Kumar Pranav, Sr. DR For The Assessee : Shri Ajay Vohra, Sr. Adv. Shri Neeraj Jain, Adv. Shri Abhishek Agarwal, CA ORDER PER R. K. PANDA, AM : These are cross appeals. The first one is file .....

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, etc.. It has both cold and hot rolling mills at Hissar. It has also Ferro Chrome Manufacturing Plant at Vishakhapatnum. The assessee is a listed company and filed its return of income on 23.11.2006 declaring total income at ₹ 83,00,83,200/-. Subsequently, on 23.11.2007, the assessee filed a revised statement showing the total income of ₹ 81,77,08,959/-. The Assessing Officer made a reference to the TPO for determination of the arm s length price u/s 92CA(3) in respect of the intern .....

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7; 2297.28 crores is domestic turnover and ₹ 1197.31 crores is export turnover. He observed that the assessee has benchmarked its international transaction of sales to its AE, PT Jindal Stainless (Indonesia) of ₹ 226.82 crores using CUP method. Similarly, the assessee has also imported Scraps Grades valued at ₹ 86,540,291/- from PT Jindal Stainless Indonesia. After considering the submissions made by the assessee from time to time, the Assessing Officer held that certain sales .....

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ly, the Assessing Officer also made addition of ₹ 50,000/- u/s 14A on the ground that the assessee has earned sum of ₹ 482.26 crores as dividend on investment of ₹ 25,209.08 lacs and no disallowance has been made u/s 14A of the I.T. Act. Similarly, out of total claim of ₹ 3066.07 lacs on account of decapitalization of interest the Assessing Officer disallowed an amount of ₹ 24,91,16,438/-. Further, as against the claim of ₹ 732,77,722/- u/s 80IA made by the as .....

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the claim of deduction u/s 80IA of ₹ 89,76,682/-, deleted the addition on account of bad debts amounting to ₹ 87,45,000/-, deleted the disallowance of ₹ 50,000/- made by the Assessing Officer u/s 14A and deleted the addition of ₹ 24,91,16,438/- on account of decapitalization of interest income. So far as the transfer pricing adjustment is concerned, the ld. CIT(A) deleted an addition of ₹ 21,54,152/- and sustained an addition of ₹ 28,89,032/-. Against such par .....

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ircumstances of the case, the Ld. CIT(A) erred in applying the average rate of 8-03-2005 and 11-3-2005 for comprising the single product sale transaction of 01-03-2005, when rate of single nearest date of 08-03- 2005 should have been applied? 1.b. Whether in the facts and circumstances of the case, the Ld. CIT(A) erred in considering the period of sale from 01-03-2005 to 15-03-2005 when the product being considered has been transacted on single dated of 01-03-2005 and the transaction in subseque .....

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s of the case, the Ld. CIT(A) erred in deleting the addition of ₹ 89,76,682/- by fully allowing the claim of deduction u/s 80IA in respect of captive power plant of the assessee, without deciding the specific findings of the A.O. that profit of the unit was inflated because of non accounting of interest on borrowed fund, low administrative expenses etc.? 5. Whether in the facts and circumstances of the case, the Ld. CIT(A) erred in deleting the addition of ₹ 87,45,000/- on account of .....

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the order passed under section 92CA(3) of the Income-tax Act, 1961 ( the Act ) by the Transfer Pricing Officer. 1.1 That the Commissioner of Income Tax (Appeals) erred on facts and in law in not appreciating that the price paid on international transaction of export of goods to associated enterprise was within arm s length range of +/-5% of the price charged to unrelated third parties, in terms of the proviso to section 92C(2) of the Act. 1.2 That the Commissioner of Income Tax (Appeals) erred o .....

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f ₹ 50,000/- made by the Assessing Officer u/s 14A of the I.T. Act. 8. After hearing both the sides, we find the Assessing Officer had made disallowance of ₹ 50,000/- u/s 14A on the ground that assessee had earned exempt income of ₹ 482.26 crores on investment of ₹ 25,209.08 crores and no disallowance u/s 14A was made by the assessee. The submission of the assessee that no disallowance u/s 14A is required since all the investments are out of companies own funds was reject .....

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ke investment for earning exempt income and, therefore, the ad-hoc addition made by the Assessing Officer amounting to ₹ 50,000/- is not justified. He has also given a finding that no nexus has been established by the Assessing Officer to show that any expenditure has been incurred for earning exempt income. We find identical issue had come up before the Tribunal in assessee s own case in the immediately preceding assessment year. The Tribunal at para 46 of the order has restricted such di .....

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ssessee u/s 14A of the I. T. Act, the Assessing Officer observed that assessee must have incurred some expenditure for earning tax-free income and made adhoc disallowance of ₹ 50,000/- which has been upheld by the CIT(A). It is the submission of the ld. counsel for the assessee that no disallowance has been made in the past and no nexus has been proved by the Assessing Officer. No material has been placed on record to show that the assessee has incurred some expenditure for earning tax-fre .....

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hoc basis under the facts and circumstances of the case appears to be on higher side. Although, the ld. counsel for the assessee submitted that no disallowance has been made in the past, however, it was not brought to our notice as to whether the disallowance was not made in scrutiny assessment or summary assessment. Considering the totality of the facts of the case, disallowance of ₹ 25,000/- under the facts and circumstances of the case, in our opinion, will meet the ends of justice. We .....

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account of capitalization of interest. 11. After hearing both the sides, we find the Assessing Officer made disallowance or addition of ₹ 24,91,16,438/- on the ground that the assessee company on the one hand has made decapitalization of interest income of ₹ 3066.07 lacs and on the other hand has shown such interest expenses as revenue to the extent of ₹ 9539.99 lacs. Rejecting the various decisions including the decision of the Hon ble Supreme Court in the case of CIT vs. Karn .....

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on the borrowed fund for acquisition of capital. The AO had taxed this interest income. The AO has relied on the decision of Hon ble Supreme Court in the case of Tuticorin Alkali Chemicals and Fertilizers Ltd. vs. CIT (227 ITR 172). On the other hand, the appellant has relied on the decision of jurisdiction High Court in the case of NTPC SAIL Power Company Pvt. Ltd. vs. CIT (ITA No.1238/2011, order dated 17.07.2012). The facts of this decided case and that of the appellant are similar. In the ca .....

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field Orissa Project against the expenditure incurred on the project. Further, the Hon ble High Court of Delhi in the case of NTPC SAIL Power Company Pvt. Ltd. (supra) has discussed the case cited by the AO, namely, Tuticorin Alkali Chemicals and Fertilizers Ltd. (supra) in the judgment. Therefore, respectfully following the decision of the Hon ble High Court as well as decision of the Hon ble Supreme Court in the case of CIT vs Bokaro Steel Ltd. (1999) 102 Taxman 94 (SC), I hold that the inter .....

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s u/s 57(iii) by observing as under :- 53. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. The only issue to be decided in the impugned grounds is regarding the treatment of ₹ 6,11,95,775/- being interest earned on temporary funds and the income of ₹ 1,32,88,663/- on sale of investment transferred to O .....

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erest income is taxed as income from other sources then deduction should be allowed on the interest expenditure for earning such interest income as per the provisions of section 57(iii). We find merit in the alternate contention of the ld. Counsel for the assessee. The assessee has submitted before the lower authorities that the interest received of ₹ 6,11,95,775/- is on account of investment out of loan funds raised for the Orissa Project. Copy of the loan sanction letter in respect of Or .....

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or earning such income is an allowable deduction. Following the above decision, we are of the considered opinion that assessee should be given due credit for interest expenditure incurred for earning such interest income. Accordingly, the alternate submission of the assessee is allowed. The Assessing Officer is directed to verify the amount of expenditure apportioned for the investment required for earning such interest income. The ground no.2 to 2.3 raised by the assessee are accordingly partly .....

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8377; 89,76,682/-. 16. After hearing both the sides, we find the claim of deduction of ₹ 7,32,77,722/- u/s 80IA was rejected by the Assessing Officer on the ground that the Form No.10CCB filed by the assessee is incomplete and proper balance sheet and profit and loss account are not available for each unit. The Assessing Officer, therefore, estimated the profit eligible for deduction u/s 80IA of the I.T. Act at the rate of 10% turnover of the power units and worked out the deduction at  .....

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enses were not allocated to the units. The defense of the appellant is that it has complied with the requirement of law by filing certificate of the chartered accountant who has duly audited the profit & loss account and balance sheet of the appellant. Further, the appellant has stated that loans were undertaken by the appellant for its various projects which were under pre-operative phase and no loan was used for operating these units where deduction under 80IA was claimed. The line by line .....

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e appellant that the borrowed funds were for setting up of new units and such money was used in the units which claimed deduction u/s 80IA is also correct since the appellant has sufficient funds as its working capital as discussed in Ground No.1. In view of this, I hold that the appellant is eligible for 80IA deduction as claimed by the appellant in Form no.10CCB. Addition made on account of disallowance under this ground should be deleted. 18. Since the Tribunal has already upheld the order of .....

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itten off. 20. After haring both the sides, we find the assessee had claimed deduction of ₹ 87.45 crores as bad debt in the Profit & Loss Account. These bad debts arise out of the sale of cold rolled stainless steel coils made to Dai Ichi USA, NY in the financial year 2004-05 on account of quality issue. However, the Assessing Officer concluded that the conditions as enumerated in the provisions of section 36(2) of the I.T. Act are not fulfilled and therefore, he disallowed the claim o .....

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t as bad debts. He held that the various decisions relied upon by the assessee before him also support the case of the assessee. He accordingly allowed the claim of the assessee. From the details submitted by the assessee during the course of hearing before us, we find the writing off of such bad debts as irrecoverable satisfy the requirement of allowance and deduction as per section 36(1)(vii) r.w.s. 36(2) of the I.T. Act. It is held by various decisions including the decision of the Hon ble Su .....

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nference that the assessee is not entitled to write off the amount of the bad debt. In view of the above, we find no infirmity in the order of the ld. CIT(A) deleting the disallowance. Accordingly, the same is upheld and the ground raised by the Revenue is dismissed. 22. So far as the ground no.1 to 1.1 by the Revenue and 1.1 to 1.2 by the assessee are concerned, these relate to the partial relief given by the ld. CIT(A) on account of transfer pricing adjustment made by the Assessing Officer. 23 .....

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As per the order of the TPO, the appellant had 6.87% net profit and 11.99% gross profit during the year. 3.3. The appellant had used CUP method to benchmark its international transaction. The international transaction involved in import of material was accepted as at arm's length by the TPO. Similar products were also exported to unrelated parties in Middle East which were taken as CUP for justifying its international transaction involved in exports of steel products. In the transfer pricing .....

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3.4. I have carefully examined the issue based on the submission of the appellant, material on record and order of the TPO. The international transactions under dispute have taken place on 22.04.2005, 30.04.2005. 19.08.2005, 27.02.2006 and 01.03.2005 to 15.03.2005 (the actual transaction happened 02.04.2005 onwards). The transactions on these days are discussed and decided in the following paragraphs. There are two common issues relevant in this case regarding the determination of the ALP of th .....

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be made even though they belong to the broad category of apples. In the present case, the appellant is engaged in manufacturing steel products and there are various stages of production and the final product also vary depending on the process of manufacturing, the quality and quantity of inputs being used, purpose for which the products manufactured etc. Therefore, if the similar products are available for comparison the same should be taken. Issue 2 The dates of transactions to be compared: As .....

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same day or within the same week wherein similar products are traded with a AE as well as non AEs. Therefore, the transaction happening on the nearest date should be taken for comparison. It is possible that a fluctuation may happen in the same month. Therefore, a transaction happening in the beginning of the month may substantially vary from the one which had happened at the end of the same month. This may call for 'suitable adjustment' which is difficult to quantify. This difficulty c .....

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ith the exports on the same date to third party (unrelated) customers by the AE. This is tabulated in Page No. 7 of the TPO order in Table No. III and IV which is further summarized in Table No. V and VI. The most important discrepancy pointed out by the appellant in the order of the TPO is that the quality of coil sold to the AE was Grade J4 Black coil which was different from J4 HRAP coils sold on the same date to unrelated parties (in the Table No. III of the TPO order) and therefore they can .....

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is a final product of stainless steel coil made after undertaking various process such as Annealing-Pickling, bathing with Electrolytic Sulphuric Acid and Mixed Acid. Same is evident from the extract of the website of the company, reproduced as under: HR Coil HR Black: As cast/ ground slabs are first heated and soaked in reheating furnace, rolled in roughing mill to intermediate thickness and then to the final thickness in the steckel mill. HRAP : Hot Rolled coils are annealed & pickled in .....

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ebsite of the appellant at http://www.jslstainless.com/productline.php#hrcoil and found that the above distinction was made about the products and it was available for everybody to see. 4.1.2. In Table No. III of the TPO order, TPO has considered 7 transactions dated 22.04.2005 of different quantity of Grade J4 coils sold to the AE. The invoice rate taken is 1100 USD per metric ton. On the same day, the appellant had exported to SON HA CO., LTD. at Vietnam. This transaction was taken as comparab .....

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on 18.04.2005 to the sale made to the AE on 22.04.2005. The rate per metric ton is 1100 USD in this transaction. Therefore, the international transaction should be treated as at arm's length. No addition is required to be made on this transaction. 4.2. Transaction dated 19.08.2005: The appellant had sold Grade J4 HR coil to the AE as well as the non AEs. Therefore) there is no question of difference of dates or quality in this transaction. The only point raised by the appellant is that the a .....

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. The appellant has paid USD 25 per metric ton as commission and it was built in the invoice price of USD 970. If this commission amount is reduced, then, the price paid by the third party customer to the identical goods comes to USD 945 per metric ton. As mentioned by the TPO, the 27 comparable transactions resulted into an average price of USD 970 per metric ton where in all the cases USD 25 per metric ton was paid as a commission. The TP documentation also contained 15 transactions with unrel .....

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[(970 * 27 + 920 * 15)/ 42]. This price should be taken as arm's length price. The proviso to Section 92C(2) comes into operation since multiple price are available on the same date for the identical product. Therefore, the international transaction on 19.08.2005 should be held at arm's length. No addition is needed to be made on this transaction. 4.3. Transaction dated 27.02.2006 and 30.04.2005: The appellant had sold Grade J4 HR coil to the AE as well as third parties on the same day .....

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his case. Similarly, in Table No. IV, the dispute is about calculation of + / -5% as per the proviso to Section 92C(2). The date of comparison is 30.04.2005 and the quality of product being compared is also Grade J4 Black coil. The appellant contends that the international transaction is within +/-5% of the comparable transaction. 4.4. I fail to understand the argument of the appellant since there is only one price of the comparable transaction on 27.02.2006 and 30.04.2005 which is USD 930 per m .....

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vely, however it results into only one price i.e. USD 930 for transaction dated 27.02.2006 and USD 1120 for transaction dated 30.04.2005. In the CUP method, transaction by transaction are compared. The nearest date on which similar commodity is sold is taken for comparison. On both the dates, the transactions have happened with the AE as well as with non AEs. The transaction with the non AEs has happened with the same price in all the invoices. Therefore, there is no multiple prices established .....

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ot;; the actual transactions have happened on/ after 02.04.2005. The appellant has sold the products at USD 1250 to USD 1325 per metric ton in all these 15 transactions. There was a transaction with the unrelated party on 08.03.2005. The rate was USD 1400 per metric ton. TPO has taken this transaction as ALP to compare. The appellant has pointed out that the above 15 transactions had two different varieties of steel coils sold to AE. 9 transactions were supply of J4 HRAP coils and remaining 6 tr .....

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2,721 102,721 5 J4 HRAP Coils 580 I-Mar-2005 15.535 1,325 20,584 20,584 1,325 6 J4 HRAP Coils 580 I-Mar-2005 218.370 1,325 289,340 289,340 1,325 7 J4 HRAP Coils 1,325 580 I-Mar-2005 94.985 1,325 125,855 125,855 8 J4 HRAP Coils 1,325 580 I-Mar-2005 47.980 1,325 63,574 63,574 9 J4 HRAP Coils 1,325 580 I-Mar-2005 47.105 1,325 62,414 62,414 659.970 874,460 874,460 1,325 10 J4 Black Coil 1,250 604Al 9-Mar-2005 181.650 1,250 227,063 227,063 11 J4 Black Coil 1,250 604Al 9-Mar-2005 147.225 1,250 184,031 .....

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to whom this was sold on 11.03.2005 was M/s Shunde Baisheng Trading Company Ltd. This information was part of the TP documentation which is at Page 26 of the Paper book. Accordingly, the average price of J4 HRAP coils should be taken at USD 1310 [(1400 * 1 + 1220 * 1)/ 2]. Therefore, the transactions in the S. No.1 to 9 of the above Table has taken place at USD 1325 which is above the average ALP at USD 1310. Therefore, they should be held at arm's length, Even the rest of the transactions m .....

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ld. AR submitted that the price charged by the assessee at USD 1100 PMT from its AEs is within +/-5% range of the price charged from the unrelated party at USD 1120 PMT. Therefore, the transaction of export of goods dated 30.04.2005 ought to be considered to be at arm s length price. 25. So far as the adjustment of ₹ 13,91,117/- is concerned, he submitted that the price charged by the assessee at ₹ 915 PMT from its AE is within +/-5% range of the price charged from the unrelated par .....

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e charged by the unrelated third party. Therefore, the adjustment made by the TPO is liable to be deleted. 26. So far as the appeal of the Revenue is concerned, the ld. AR submitted that during the period 01.03.2005 to 15.03.2005, the assessee has undertaken 9 transactions of sales of J4 HRAP Coils at 1325 PMT and 6 transactions of sales of J4 Black Coils at 1250 PMT. The TPO benchmarked the said transactions considering the sale of goods undertaken by the assessee. The ld. counsel for the asses .....

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