2013-VIL-989-ITAT-DEL
Income Tax Appellate Tribunal DELHI
ITA No. 871/Del/2013
Date: 30.08.2013
SMT. VINAY SHARMA
Vs
INCOME-TAX OFFICER, WARD-1 (2) , GHAZIABAD
BENCH
Shri R. P. Tolani And Shri B. C. Meena, JJ.
JUDGMENT
Per R. P. Tolani, J.M:
This is assessee’s appeal against CIT(A)’s order dated 24-12-2012, partly sustaining the penalty @ 150% of the tax sought to be evaded as against 200% imposed by the assessing officer at Rs. 47,96,000/- u/s 271(1)(c) of the Income-tax Act, 1961, relating to A.Y. 2009-10.
2. Brief facts are: For A.Y. 2009-10, the assessee filed return declaring income of Rs. 4,35,757/- on 30-9-2009. During the course of assessment proceedings the assessing officer noticed that assessee was engaged in supply of earth soil, purchased from farmers by way of excavation of land from their fields and sold to other contractors for land filling at various sites.
According to assessing officer assessee’s books of accounts were duly audited and various entries were examined by him without any adverse observations. However, it was observed that most of the payments made to farmers for purchase of earth/ soil were in cash and not verifiable. Queries were raised in this behalf on 21-12-2011, assessee filed reply vide letter dated 29-12-2011, which is reproduced in the assessment order. The relevant para of the letter, qua the voluntary surrender of income to be assessed at a net profit figure of Rs. 75,00,000/- in this regard is reproduced as under:
“That for the year under consideration the assessee has already produced complete books of account, bills and vouchers and evidence of making payment to the farmers for the purchase of earth soil besides complete evidence of purchase and sale of shares. There is gross profit rate of 0.20% on the consolidated turnover of Rs. 41,95,37,130/-. The assess e has made hard labor to achieve the sale targets during the year. The profit during the year as declared by the assessee deserves to be accepted. It is not out of place to mention here that by applying higher profit rate the assessee would not be able to deposit higher taxes since the margin is not to that extent and it is only what the assessee has declared though the assessee is prepared and is offering voluntarily, to be assessed at a net profit figure of Rs. 7500000/- inclusive of the income declared in the return which works out to approximately around 2% of the consolidated sales provided no penalties are levied and the offer is accepted in the spirit of co-operation for the completion of the cases and that this offer is made certainly to avoid penalties and multiple litigation. It is also stated that this offer is being made with the clear intention to get the cases completed without the levy of the penalty and to deposit the tax found to be payable without entering into any litigation so as to buy peace of mind.
2.1. Assessing officer, however, initiated penalty proceedings u/s 271(1)(c) of the Act and held that assessee has tried to conceal the true particulars of her income and the penalty was imposed at Rs. 47,96,000/- i.e. @ 200%.
2.2. Aggrieved, assessee preferred first appeal before CIT(A) where following effective submissions were made:
(i) Assessee maintains complete books of accounts, no defects are found therein by AO. As the assessing officer queried during course of the assessment proceedings about cash payments made to farmers, the assessee in order to put the enquiries at rest voluntarily offered the taxable income at Rs. 75 lacs as against declared income of Rs. 4,35,757/-.
(ii) In the assessment order, assessing officer himself observed that assessee’s books are duly audited and balance sheet and entries therein are properly made and they do not require any adverse comment. The query was only in respect of the cash payments made by the assessee to the farmers from whose fields the earth/ soil was excavated for onward sale.
(iii) The numbers of trucks/ transport vehicle supplied to the contractors for filling purpose are not objected. Thus, the number of transport vehicles sold are ascertainable as correspondingly the same number of trucks represent the number purchased from farmers.
(iv) Looking from any angle it is a case of pure estimate and assessing officer could have estimated the income from supply of per transport vehicle. However, assessee offered a high amount of income specifically to put the litigation and queries to an end and with a spirit of cooperation on the condition that no penalty will be levied.
(v) There is no observation in assessing officer’s order that the offer made by assessee was not voluntary as not acceptable to him or some further investigations against assessee were carried on. Thus, the nature of the offer of the assessee remained admittedly voluntary made in the spirit of cooperation to avoid litigation and with a clear condition that no penalty would be levied on voluntarily surrendered income.
(vi) Assessing officer has not got any material on record to demonstrate that any inaccurate particulars were filed or income was concealed.
2.3. Assessee relied on following judgments:
- ITO Vs. Smt. Purnima Devi Gupta 83 TTJ 586 (JD);
- ITO Vs. Smt. Purnima Devi Gupta 83 TTJ 628 (Del ‘F’);
- Kamalchand Surana Vs. ITO 88 TTJ 629 (JD);
- Jt. CIT Vs. VXL (India) Ltd. 94 TTJ 513 (ASR);
- New Sorathia Engg. Co. Vs. CIT 282 ITR 614 (Guj.);
- Mukesh Chandra A. Lakadwala Vs. ITO 4 ITR (Trib) 307 (Ahd.);
- Mehanga Ram Sharma v ITO 26 DTR 386 (Asr)(Trib);
- DCIT Vs. B.J.D. Paper Products 141 TTJ 108 (Luck)
2.4. CIT(A) referred the reply of the assessee to the assessing officer and called for a remand report, which was submitted on 7-12-2012, contending:
(i) The assessee has failed to pay the admitted tax liability.
(ii) No reply was filed during the course of penalty proceedings. The excess income was accepted by the assessee herself. Thus, the furnishing of inaccurate particulars is admitted and no further inquiry was necessary; penalty was rightly levied.
2.5. The CIT(A) made following observations:
(i) Where the assessment order itself contains facts which justify inference of concealment, the penalty is sustainable – Raj Kumar Chaurasia v. CIT 288 ITR 329 (All.);
(ii) An omission to declare a receipt cannot be held to be a bona fide error – Sandeep Kumar Garg & Co. Vs. ITO 298 ITR 106 (P&H); (iii) Where explanation in the context of discrepancies as palpably improbable, penalty is justified – Londu Lal Raghubir Prasad Vs. CIT 298 ITR 37 (All.)
(iv) Though finding in assessment proceedings are not conclusive but it can be used in penalty proceedings as an evidence before penalty is imposed – Hari Shankar Goptal Hari Vs. CIT 97 ITR 716 (All.) and various other judgments cited in para 6.2.3 of CIT(A)’s order.
(v) In case of best judgment assessment, the burden is on the assesse and where no explanation is furnished, there is a failure to discharge onus and the penalty will be attracted – CIT Vs. Ajay Textiles 224 ITR 98 (P&H); Jain Bros Vs. CIT 251 ITR 302 (Del.).
(vi) Mere offering of explanation would not absolve the assessee from levy of penalty and the same is to be substantiated by cogent and reliable evidence – CIT Vs. Lal Chand Tirath Ram 225 ITR 675
2.6. CIT (A) relied on various other case laws which are mentioned in the order. After these observations, CIT (A) held that in the present case –
(i) The admission of enhancement of income obviously came forward as a result of inquiries and investigations by the assessing officer and assessee’s fear that the true income soon or later will be detected by the department. Therefore, the surrender was a result of inquiries and investigations made by assessing officer.
(ii) CIT Vs. D.K.B. & Co. 243 ITR 618 (Ker.) - There is no principle of universal application that whenever an assessment has been completed by accepting the offer of an assessee, no penalty can be imposed. The department can levy penalty u/s 271(1)(c) in respect of additional income offered by assessee if the explanation offered by assessee is not found acceptable.
(iii) CIT Vs. Dr. R.C. Gupta & Co. - During the course of assessment the assessee himself admitted that he had derived income from the sale of imported cycle parts and the income from the same was not recorded in his books of accounts. The amount was not shown in the return of income. The assessee agreed to the inclusion of this amount in his total income. As the assessee admitted that such amount represented his income, no further evidence was necessary to show that it was the amount which represented his income and concealed income.
(iv) Apart from plethora of case laws cited by CIT(A), reliance was also placed on – CIT Vs. O.B. Shah & Co. (P) Ltd.; and CIT Vs. Zoom Communication 327 ITR 510 (Del.).
(v) In the present case, the books of accounts have been maintained in a manner to declare a much lesser gross and net profit, than the actual and to that extent it is a case of concealment of particulars of income. At the same time, any inaccuracy made in the books of accounts or bills and vouchers, which resulted in keeping off or hiding a portion of its return is “furnishing inaccurate particulars” by the appellant.
2.7. With above observations the CIT(A) held that the assessee’s case is liable for penalty u/s 271(1)(c), however, reduced the same from 200% to 150% of the tax sought to be evaded by following observations:
“However, on the issue of quantum of penalty, I agree with the appellant that the A.O. in the penalty order as well as in the remand report, has not been able to give any cogent reason as to why penalty @ 200% of the tax evaded has been levied. The behaviour of the appellant has not been one of litigation for prolonged dispute or hostility. Rather the appellant has during assessment investigations only, chose to make the surrender and hence although it is a case of furnishing inaccurate particulars; it would be unfair & excessive if penalty is imposed @ 200% of the tax evaded.
However, at the same time the fact mentioned by A.O. that assessee has not paid the tax on surrendered amount even till now, cannot be brushed aside. Non-payment of tax, inspite of admitted surrender during the assessment, tentamounts to an element of non co-operation, making the behaviour of the assessee, non co-operative and suspicious to some extent.
Weighing both the sides, I am of the view that it would be fair if penalty is imposed @ 150% of the tax evaded. To that extent A.O. is directed to modify the quantum of penalty.”
Aggrieved, assessee is before us.
3. Learned counsel for the assessee contends as under:
(i) From assessment order, it clearly emerges that assessee’s books of accounts were otherwise acceptable to assessing officer, which were examined and no adverse comment has been offered.
(ii) The imposition of penalty depends on the peculiar facts of each case. In this case the peculiar facts of the case are that assessing officer asked the assessee to file the details about the cash payments made to the farmers. Assessee visualized the difficulties as the payments were made before 31-3-2009 to farmers. The assessee was asked this query on 21-12-2011 to give the details of the cash purchases from farmers and the date of hearing was fixed on 23-12-2011. Thus, within 2 days the assessee was required to file the confirmation from number of farmers which was seemed to be an impossible task. Under these compelling circumstances, without these being any investigation by the assessing officer the assessee on 29-12-2011, to cut short the litigation offered to be assessed at the net amount of Rs. 75 lacs. The offer was accepted by assessing officer without disputing any contents or condition of the surrender.
(iii) In the assessment order the assessing officer has no where mentioned that the offer is not acceptable and assessed the income as offered by assessee. There is no mention of any inquiry or procurement of any adverse material or statement of even a single farmer that the amount was not paid to them.
(iv) In para 3.2 of the assessment order the assessing officer has recorded that the income is being assessed as per the declaration of the assessee. From the assessment order it is clear that assessee’s offer was accepted unconditionally. The income was assessed accordingly and no further inquiry was made by the assessing officer.
(v) In para 3 of the remand report also assessing officer has accepted the fact that assessee voluntarily offered to be assessed at the net income of Rs. 75 lacs.
(vi) In para 5 of the remand report the assessing officer has wrongly reported that during the course of assessment proceedings assesse offered Rs. 75 lacs as concealed her income. Assessing officer has wrongly reported that assessee has deliberately concealed the particulars. The remand report contradicts itself inasmuch as in para 3 of the remand report assessing officer accepts the surrender to be a voluntary offer which is in conformity with the finding in assessment order, on the other hand in subsequent paras the assessing officer has given contradictory findings that assesse offered it as concealed income. Based on this report the CIT(A) observed that the offer of enhancement of income obviously came forward as a result of inquiries and investigations by the assessing officer and fear of the assessee. From the assessment order and remand report of assessing officer these facts do not emerge at all. Thus, these are purely assumptions made by ld. CIT(A).
(vii) The assessing officer required the assessee to file the proof of purchase of sale of earth soil from the farmers for which the payments were made in cash. Assessee realized that the farmers may not come forward because of various reasons i.e. having received cash they will not feel any responsibility towards assessee; the farmers are hesitant to appear before any officer including Income-tax Office and therefore the compliance sought will be very difficult for the assessee to meet with. The assesse surrendered the amount with clear stipulation that the income of Rs. 75 lacs was being offered to buy peace and to put an end to inquiries and as a gesture of cooperation with the department. Assessee further made a clear condition that offer is subject to the fact that no penalty will be imposed on the assessee.
(viii) Para 3.1 of the assessment order does not refer to any investigation but to a query dated 21-12-2011 i.e. 9 days prior to the assessment to file evidence by 23-12-2011. Thus, there is no merit in the assumption made by the CIT(A) that the assessee’s offer came after the investigation by the department. Under these facts and circumstances, the assessee’s surrender with its conditions is clearly a voluntary offer and not consequent to any investigation carried out by the assessing officer as is being purported to be projected.
(ix) The case laws relied on by the CIT(A) are distinguishable as in these cases the assessees could not offer satisfactory explanations, besides there is no reference to any condition of non-imposition of penalty while surrendering in these cases. Whereas in this case the assessee has not only offered a satisfactory explanation but has corroborated it by proper facts and contentions.
3.1. Ld. counsel then referred to following case laws in assessee’s support:
(i) CIT Vs. Upendra V. Mithani [ITA (L) No. 1860 of 2009 dated 5-8-2009 (Bom.)]: The issue involved in the appeal relates to deletion of penalty under section 271(1)(c) of the I.T. Act. The Commissioner of Income Tax (A) held that no penalty can be imposed if the facts and circumstances are equally consistent with the hypothesis that the amount does not represent concealed income as with the hypothesis that it does. If the assessee gives an explanation which is unproved but not disproved, i.e. it is not accepted, but circumstances do not lead to the reasonable and positive inference that the assessee’s case is false. The ITAT concurred with the view taken by the Commissioner of Income Tax (A). Hon’ble Bombay High Court held that the view taken by the Tribunal is a reasonable and possible view. The revenue’s appeal was dismissed as without any substance.
(ii) CIT Vs. M/s Careers Education & Infotech Pvt. Ltd. [ITA no. 14 of 2011 dated 31-3-2011 (P&H)] : It is held that, “We are unable to accept the submission. No doubt even voluntary surrender of concealed income may not exonerate the assessee of its liability to pay penalty if it can be held that there was concealment of income or furnishing of inaccurate particulars. In the present case, the Tribunal has recorded a categorical finding that there was no material to infer concealment of income or furnishing of inaccurate particulars. They contention that in every case where surrender is made inference of concealment of income must be drawn under section 58 of the Evidence Act cannot be accepted. Judgment of the Madras High Court also does not lay down such wide proposition. The observations therein are on facts of that case. The said judgment is thus distinguishable.”
(iii) ITAT Agra Bench order dated 4-4-2013 in Sarv Prakash Kapoor Vs. ACIT & another (ITA nos. 107 & 195/Agra/2011):
“9. We may note further that the A.O. in the penalty order has recorded his satisfaction that the assessee has deliberately concealed the particulars of income and furnished inaccurate particulars of income in respect of the loan amount, therefore, the penalty is leviable under Section 271(1)(c) read with
Explanation (1) to the above section.
From such findings recorded by the A.O. and inference drawn, it is evident that Assessing officer did not give clear cut finding in the penalty order, nor there was any such findings in the impugned order as to whether there was concealment of income or furnishing of inaccurate particulars of income by assessee.
10. From the language of Section 271(1)(c) of the Act it was incumbent upon the Assessing officer or learned CIT(A) to come to a positive finding as to whether there was concealment of the income by the assessee or whether any inaccurate particulars of such income have been furnished by the assessee. In the absence of such clear cut finding, the penalty order passed by the A.O. was liable to be set aside. This view is supported by the judgment of Hon’ble Gujarat High Court in the case of New Sorathia Engineering Co. Vs. Commissioner of Income Tax [2006] 282 ITR 642 (Guj). The same view is also taken by ITAT Agra Bench, in the case of Smt. Sushma Varshney (supra). On this reason alone the penalty is liable to be cancelled in the matter.”
(iv) National Textile Vs. CIT 249 ITR 125 (Guj.): In order to justify the levy of penalty, two factors must co-exist, (i) there must be some material or circumstance leading to the reasonable conclusion that the amount does represent the assessee’s income.
It is not enough for the purpose of penalty that the amount has been assessed as income and (ii) the circumstances must show that there was animus, i.e. conscious concealment or act of furnishing of inaccurate particulars on the part of the assessee. The Explanation has no bearing on factor No. (i) but it has bearing on Factor no. (ii) The explanation does not make the assessment order conclusive evidence that the amount assessed was in fact the income of the assessee. No penalty can be imposed if the facts and circumstances are equally consistent with the hypothesis that the amount does not represent concealed income with the hypothesis that it does. If the assessee gives an explanation which is unproved but not disproved, i.e. it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee’s case is false, the explanation cannot help the department because there will be no material to show that the amount in question was the income of the assessee.”
(v) CIT Vs. Aggarwal Pipe Co. 240 ITR 880 (Del.): From the afore extracted order of the Tribunal it is evident that the Tribunal has found as a fact that the surrender of the cash credits by the assessee, during the course of assessment proceedings, was bona fide and merely because the said amount has been included in the total income of the assessee, it does not follow as a necessary corollary that the assessee has admitted the same to be its concealed income, to bring it within the ambit of section 271(1)(c) read with the Explanation thereto. The afore noted findings recorded by the Tribunal are pure findings of fact and cannot be said to be perverse or unreasonable. In any case the same are not sought to be challenged by the Revenue as perverse in the proposed questions.”
3.2. Ld. Counsel pleads that from the above case laws it is clear that merely because assessee has surrendered the income it does not automatically mean that it was a concealed income or income for which inaccurate particulars were furnished. Assessee’s explanation is to be objective and is to be ascertained by assessing officer/ CIT(A), whether the same is bona fide or not. Merely because an addition is made, therefore, penalty cannot be imposed on this basis alone. A finding about additional income or surrendered income may be a relevant evidence in the penalty proceedings but that cannot be a conclusive evidence to impose the penalty, more so when in the assessee’s case assessing officer himself in assessment order has recorded that assessee voluntarily offered the income. From the assessment order it clearly emerges that the query was raised at the fag end of assessment on 21-12-2011, to be complied within two days on 23-12-2011 and assessee being unable to comply with the query, to end the litigation; to cooperate with the department; and to buy peace of mind, surrendered a round figure of income of Rs. 75 lacs on 29-12-2011. The assessing officer passed the assessment order on 31-12-2011 accepting the assessee’s surrender without any objection and not disputing the condition about levy of penalty. Under these circumstances, the case laws cited by the assessee, make out a fit case for non-imposition of penalty. The various case laws cited by the CIT(A) are all distinguishable and rendered on peculiar facts which exist in those cases and are way apart from assessee’s facts. CIT(A) has wrongly mentioned that no decision as New Sorathia Engg. Co. Vs. CIT 282 ITR 614 (Guj.) is not available, whereas the fact of the matter is that the judgment is available at 282 ITR 642 and it deals with the issue of penalty and supports the assessee’s case to the effect that a positive finding about the surrendered income being concealed or inaccurate particulars having been furnished, should be given by the assessing officer.
3.3. In this case on one hand it has been admitted that it is a voluntary surrender and on the other hand in the remand report without appreciating the contradictions on the part of assessing officer, it is erroneously presumed by the CIT(A) to be a case of surrender after investigation, although no independent investigation is mentioned anywhere by assessing officer. It is pleaded that the penalty has been wrongly levied.
4. Ld. DR, on the other hand, supports the order of CIT(A) and relied on following judgments:
- Dayabhai Girdharbhai Vs. CIT 32 ITR 677 (Bom);
- CIT Vs. Haji P. Mohammad 132 ITR 623 (Ker.);
- Mahabir Metal Works Vs. CIT 92 ITR 513 (P&H);
- Badri Prasad Om Prakash Vs. CIT 163 ITR 440 (Raj.);
- S.R. Arulpraksham Vs. Prema Malini Vasan ITO 163 ITR 487 (Mad.);
- P.C. Agarwal Vs. CIT 102 ITR 408 (Gau.);
- CIT Vs. J.K. Subramania Chettiar 110 ITR 602 (Mad.); and
- Ravi & Co. Vs. ACIT 271 ITR 286 (Mad.).
- Zoom communication 327 ITR 510 (Del.).
5. In reply, learned counsel for the assessee contends that the citations quoted by ld. Sr. DR are all on their peculiar facts. In case of Zoom Communication (supra), the penalty was imposed on following observations:
(i) The assessee claimed capital expenditure to be revenue expenditure and gave a general answer that it was by over sight.
(ii) It was observed that assessee is a company and must be getting competent professional assistance while computing its income, therefore, it was not appreciable as to how such claim escaped the attention of the auditors.
(iii) The ITAT did not record a finding that the assessee’s explanation was bona fide.
(iv) The order of ITAT suffers from _____ perversity as it cannot be accepted as general proposition that no person would ever claim the amount of income tax as deduction with a view to avoid payment of tax. Thus, in peculiar facts, the penalty was imposed.
5.1. In assessee’s case, the offer is bona fidely accepted by assessing officer. The assessee is not a company but a lady contractor and does not have the help of auditors etc. Lower authorities have failed to consider the crucial and relevant facts and on contradictory findings and assumptions, the penalty has been imposed.
5.2. Hon’ble Delhi High Court in the case of CIT Vs. Societex 24 Taxman.com 309 (Del), after considering the judgments of Zoom Communication; Escort Finance; and Reliance Petro Products, upheld the finding of the Tribunal that the mistake and explanation of the assessee was bona fide. Thus the Zoom Communication also does not lay down any general proposition of law and every case of penalty is discretely to be considered in the peculiar facts and circumstances of the case.
6. We have heard the rival contentions and perused the material available on record. In the assessment order, there is no adverse comment about the assessee’s books of account and the surrender offer as made by the assessee was accepted by the assessing officer without any objection or reservation thereof about income offered or the other contents. The sole basis of assessing the income is only this surrender offer without relying any adverse material.
6.1. During the assessment, the assessing officer asked the query about cash payments to farmers as late as 21-12-2012 and called on the assessee to furnish the information in this behalf within two days which the assesse complied after seven days and as contended, finding it nearly impossible to gather the information, offered a high figure of net income to end the inquiries, litigation, with a view to cooperate with the department and with a condition that no penalty should be imposed on the surrendered income. Assessing officer’s acceptance of these conditions is implied inasmuch as not a word has been adversely written against the assessee’s offer.
6.2. In para 3 of the remand report also, the assessing officer has referred the surrender to be a voluntary offer however, in subsequent paras it is projected as if assessee offered it as her concealed income which is contrary to the findings in assessment order. The CIT(A) has accepted the contradictory version of the remand report without appreciating the entirety of facts. In the given facts and circumstances, it is to be held that surrender offer of the assessee was voluntary and with a view to end litigation, buy peace and to avoid penalty. There is no whisper in the surrender that surrendered income represented the concealed income of the assessee. Therefore, these observations of the lower authorities are unsustainable.
6.3. Assessing officer has nowhere stated that the offer was made consequent to investigation carried out by him. Nevertheless CIT(A) has observed that the surrender was made after investigations by the assessing officer and fear of the assessee. In our view, these observations are not discernable from the record and therefore are not based on any cogent material existing on the record.
6.4. The case laws cited by the ld. CIT(A) are distinguishable inasmuch as in none of the cases the peculiar facts about voluntary surrender and stipulation about condition of non-imposition of penalty has been highlighted. Similarly, the voluntary offer, being given at the fag end of assessment proceedings also makes the assessee’s case distinguishable. In the absence of any discernable investigation by assessing officer and surrender by the assessee being not in respect of concealed income as projected by CIT(A), we are unable to uphold this finding and rely on the case laws cited by the CIT(A) and ld. CIT(DR).
6.5. It is a settled law that penalty proceedings are separate and independent and a finding in the assessment order may be an evidence which can be relied but it cannot be conclusive by itself for imposition of penalty.
Besides in this case the finding in assessment order is not of concealed income but that of a voluntary surrender and hence cannot be made a sole basis for imposing penalty. Thus, the finding in the assessment order itself does not militate against the stand taken by the assessee that it was a voluntary surrender. In view of the above facts and circumstances we have no hesitation to hold that the assessee made this surrender offer voluntary in peculiar circumstances of this case. Assessing officer himself accepted it as voluntary offer, reproduced the same in his order and assessed the income on exactly the same amount. There is no reference to any investigation or adverse material. Thus, the assessee’s offer is to be held as voluntary surrender, accepted by the department accordingly. There being no adverse material available on record or any reliance thereon, the observations of assessing officer and CIT(A) about concealment or inaccurate particulars are not borne from the record and the same are contradictory to each other. In view thereof, we delete the penalty imposed on the assessee.
7. In the result, assessee’s appeal is allowed.
Order pronounced in open court on 30-08-2013.
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