[FAQs] Disclosures & Reporting in Form 3CD | Tax Audit | A.Y. 2022-23
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- Last Updated on 6 September, 2022
FAQ 1. How to report the Impermissible Avoidance Arrangement entered into by the assessee?
Clause 30C of Form 3CD requires the Tax Auditor to report “Impermissible Avoidance Arrangements” (IAA) entered into by the assessee during the previous year and to quantify the tax benefit arising in the aggregate in the previous year to all the parties to such arrangement.
The tax auditor should examine whether the Principal Commissioner or the Commissioner or the Approving Panel has, in any earlier previous year, declared any arrangement as IAA. If any arrangement has been declared to be an IAA, the tax auditor should further examine whether any transaction pertaining to or in connection with such declared IAA has taken place during the previous year under the audit. If yes, the tax auditor is expected to report this fact in the audit report. The tax auditor should also report tax benefits in the previous year arising from such transactions to all the parties to the arrangement. If he is unable to ascertain the tax benefit arising in the previous year, in aggregate, to all the parties to the arrangement, he should indicate the same in Form 3CA or Form 3CB, as the case may be.
The auditor should examine if any reference has been made for declaring an arrangement as an impermissible avoidance arrangement in any earlier previous year. If such references have been made, the auditor should report the fact in Form 3CA or Form 3CB, as the case may be.
FAQ 2. How can the tax auditor report payments referred to in Section 43B if the same is unpaid as on the date of submission of the tax audit report but paid before the due date of filing of return of income?
Clause 26 of Form 3CD seek details of liability incurred in respect of any sum referred to in clause (a), (b), (c), (d), (e), or (f) of section 43B in the previous year and was paid or not paid on or before the due date for furnishing the Return of Income of the previous year.
Since the due date of filing of the tax audit report is one month before the due date of filing of return of income, it is practically not possible for the auditor to report if any payment is made after the filing of the tax audit report but before the due date of return of income.
To address this difficulty, the CBDT has inserted sub-rule (3) in Rule 6G to provide that the tax audit report may be revised by the person by getting a revised report of audit from an accountant, duly signed and verified by such accountant, and furnish it before the end of the relevant assessment year for which the report pertains, if there is payment by such person after furnishing of the report which necessitates a recalculation of disallowance under Section 40 or Section 43B.
FAQ 3. If shares of members of AOP are unknown during the previous year, is it required to be reported in Form 3CD?
If shares of members are unknown during the previous year, the auditor needs to disclose this fact in Clause 9(a) of Form 3CD.
FAQ 4. How does the auditor need to report the interest inadmissible under Section 23 of the MSMED Act, 2006?
Clause 22 of Form 3CD seeks the disclosure of the amount of interest inadmissible under section 23 of the Micro, Small, and Medium Enterprises Development Act, 2006. The tax auditor needs to report the amount of interest inadmissible under section 23 of the MSMED Act, 2006 irrespective of whether the amount of such interest has been debited to the profit and loss account or not.
The auditor should verify that the auditee has disclosed the information as required under section 22 of the MSMED Act, 2006 in the financial statements under audit. If no disclosure is made by the auditee in the financial statements, the tax auditor should appropriately qualify his report in Form No. 3CB and also report the fact of non-disclosure in clause 22 of Form No. 3CD.
FAQ 5. Is it mandatory to disclose the nature of all the businesses carried on by the assessee and any change therein?
Clause 10 of Form 3CD mandates disclosure of the nature of every business or profession carried on by an assessee during the previous year.
Any material change in the nature of business should be precisely disclosed. The change will include a change from manufacturer to trader as well as a change in the principal line of business. Any addition to or permanent discontinuance of a particular line of business may also amount to change requiring reporting. However, temporary suspension of the business may not amount to change and, therefore, need not be reported.
FAQ 6. A has opted for the presumptive scheme under Section 44AD in respect of one of his businesses. Whether auditor is required to mention details of such business in the audit report?
In case the profit and loss account of the assessee includes any profit declared under the presumptive scheme (Section 44AD, 44AE, 44AF, 44B, 44BB, 44BBA, 44BBB), then it is mandatory to mention the amount of such profit and the section under which the same is declared in Clause No. 12 of Form 3CD. The tax auditor is not required to indicate if the amount of presumptive income has been correctly computed under the relevant section relating to presumptive taxation. The reporting requirement is satisfied if the amount as per profit and loss account is reported.
Read More About- Presumptive Taxation Schemes Here
FAQ 7. How to ensure that the profit has been computed correctly if the profit & loss account also includes the profit computed on a presumptive basis?
If the profit and loss account of the assessee also includes the presumptive income, the common business expenditure has to be apportioned to arrive at the correct amount of profit credited to the profit and loss account and assessable on a presumptive basis. The tax auditor, in such a situation, should arrive at a fair and reasonable estimate of such expenditure on the basis of evidence in possession of the assessee or by asking the assessee to prepare such estimate, which should be checked by him.
It is also necessary to mention the basis of apportionment of common expenditure. However, if the tax auditor is not satisfied with the reasonableness of such apportionment, he should indicate such fact under this clause by a suitable note.
FAQ 8. An assessee has applied for a refund of Special Additional Duty (SAD), but the same was not credited to the profit & loss account. Whether the disclosure is required in Form 3CD?
If a claim for a refund of SAD has been admitted as due and accepted during the relevant financial year, it shall be reported under Clause 16. If the claim has been lodged during the previous year but has been admitted as due after the relevant previous year, it need not be reported here. Where such amounts have not been credited in the profit and loss account but netted against the relevant expenditure/income heads, such a fact should be brought out.
FAQ 9. What should be reported in item (d) of clause 16 “any other item of income” not credited to the profit and loss account?
Clause 16 of the tax audit report requires reporting of the amount not credited to the profit and loss account.
The disclosure in item (d) of clause 16 is titled “any other item of income”. Whether certain incomes taxable under any other head need not be reported in this column?
One view is that income from house property or other sources (like bank interest, dividends, etc.) should not be reported in clause 16(d). Thus, no addition or adjustment shall be made by the CPC while processing the return under Section 143(1).
The other view is that such other income should be reported. The arguments in favour of such a conclusion are that Section 44AB starts with the expression “every person” carrying on business or profession shall get his accounts of such previous year audited. The audit under Section 44AB is not only for the books of account relating to business or profession but for the taxpayer. Thus, income chargeable to tax under the head house property, capital gains, and other sources are also disclosed in clause 16(d).
If the second view is followed, one may receive the tax demand as a result of adding the amount disclosed in 16(d) to business / professional income without taking note of the fact that those incomes are taxable under other heads.
Disclosure in clause 16 by the tax auditor by taking the view that the tax audit report is meant for the taxpayer and not explicitly limited to business or profession needs to be appreciated in the overall context of tax compliance. Such disclosure provides wholesome information to the department about the taxpayer. However, when such information is captured in the ‘Other Information Schedule’ of ITR, the CPC may compare it with incomes offered under other heads. If they are equivalent to or more than the amount disclosed in clause 16 of Form 3CD, no adjustment may be made under Section 143(1). However, clarity is needed from Dept. in this regard.
FAQ 10. Whether an auditor has to quantify whether the payment to a related person is unreasonable or excessive under Clause 23?
No, the auditor is not required to quantify whether the payment is unreasonable or excessive. Only the Assessing Officer can make the disallowance if, in his opinion, the expenditure is unreasonable.
FAQ 11. In case of purchase from the related party, which of the following amount is required to report under Clause 23?
(a) Purchase debited to P&L (Gross purchase, i.e., before deducting the purchase return)
(b) Purchase debited to P&L (net purchase, i.e., after deducting the purchase return)
(c) Actual amount paid to creditors during the current year
Section 40(A)(2) provides that expenditure for which payment has been or is to be made to certain specified persons listed in the section may be disallowed if, in the opinion of the Assessing Officer, such expenditure is excessive or unreasonable. The section enjoins the Assessing Officer’s power to fix the quantum of disallowance.
It may be advisable for the tax auditor to clarify that what has been reported are the actual payments made to specified persons during the previous year. These are not necessarily the amounts claimed in/debited to the profit and loss account.
The tax auditor is only required to give particulars of payments to persons specified under section 40A(2)(b) under this clause. He is not required to give his opinion on the unreasonably/excessiveness of the payments, and that is the Assessing Officer’s prerogative.
FAQ 12. Whether reporting under clause 23 applies to capital expenditure incurred by the assessee?
As the clause requires an auditor to report all the payments made to the specified persons, the payments made for capital purchases should also be considered for reporting under this clause.
FAQ 13. Under clause 34(c), whether the amount of interest that was payable on 31stMarch and paid during the current year to be reported? Or taxpayer is required to report all interest even if paid in the previous year itself
Under this clause, the auditor is required to furnish detailed information in case the assessee is liable to pay interest under section 201(1A) or section 206C(7) of the Act. The reporting in clause 34(c) should be in consonance with the reporting under clause 34(a) where the details of non-deduction are required to be reported.
Where the assessee is liable to pay interest u/s 201(1A) or 206C(7), the tax auditor should verify such amount from the books of account as of 31st March of the relevant previous year and also from PART G of the statement generated by the Department in Form No. 26AS. In case the assessee had disputed the levy or calculation of interest under TRACES, in Form No. 26AS, the tax auditor may re-calculate the amount of interest under section 201(1A) or section 206C(7) up to the audit report date for reporting under this clause and mention the fact in his observations paragraph provided in Form No. 3CA or Form No. 3CB, as the case may be.
FAQ 14. As Section 43B specifically disallows the interest expense which is converted into a loan, whether such disallowance shall be permanent in nature?
Circular No. 7/2006 dated 17th July 2006 clarifies that the unpaid interest, whenever actually paid to the bank or financial institution, will be in the nature of revenue expenditure deserving deduction in the computation of income. Therefore, the converted interest, by whatever name called, in the wake of its conversion into a loan or borrowing or advance, will be eligible for deduction in the computation of income of the previous year in which the converted interest is ‘actually paid’.
In other words, the nomenclature of the sum of converted interest will make no difference as the payment of converted interest will not represent the repayment of the principal. The circular clarifies that the fundamental principle remains that once an amount has been determined as interest payable to the banks or financial institutions, any subsequent change of nomenclature of interest will not affect its allowability, and deduction in terms of section 43B will have to be allowed on its actual payment. The Assessing Officer, however, can ask for a certificate from the assessee to be obtained from the lender bank or financial institution, etc., as evidence of ‘actual payment’ of interest to banks or financial institutions.
FAQ 15. Whether sum payable to Indian Railways for advertisement at railway stations would be disallowed under Section 43B?
If the payment is being made by an advertising agency to the railways for putting up hoardings or display panels on railway premises, such payment will amount to the payment for the use of railway assets, as the payment is for the use of space on the premises. However, where an advertiser is making payment to the railways for the display of advertisements on hoardings or displays on railway premises, such a payment is in the nature of payment for the services of advertisement, and not for the use of railway assets.
Any sum payable to Indian Railways for the use of railways assets shall be allowed on a payment basis. Any sum payable to Indian Railways for its services shall be allowed as per the method of accounting regularly employed by the assessee.
FAQ 16. If the statutory auditor does not consider an item as a prior period expense, whereas the tax auditor feels that such item should be considered as a prior period, should that expense be disclosed in Clause 27(b) of Form 3CD?
It may be noted that there is a difference between the expenditure of any earlier year debited to the profit and loss account and the expenditure relating to an earlier year, which has crystallised during the relevant year. An expense, though related to previous periods, which has been determined in the current period, would not be considered a prior period item.
In such cases, though the expenditure may relate to the earlier year, it can be considered as arising during the year on the basis that the liability materialised or crystallised during the year, and such cases will not be reported under this clause.
In case of any conflict in the opinion of the statutory auditor and tax auditor, the opinion of the tax auditor shall prevail, and the information thereof shall be reported in Form 3CD.
FAQ 17. There is a difference in opinion between the tax auditor and the client with respect to the applicability of a TDS provision on a particular payment. How to report such differences in the tax audit report?
If the tax auditor and client have a difference of opinion with respect to the applicability of the TDS/TCS provision, such concern shall be reported in clause (3) of Form 3CA or clause (5) of Form 3CB, as the case may be.
FAQ 18. A, a sole proprietor, agreed to transfer his personal property to Mr X and received some non-refundable advance against such a deal. The sale could not materialise as Mr X could not pay the whole amount, and the advance money was forfeited by Mr A. What are the disclosure requirements?
Section 56(2)(ix) of the Income-tax Act provides for taxability of any sum received as an advance in the course of negotiations for the transfer of a capital asset, and such sum was forfeited due to non-transfer of such capital asset. A new Clause 29A to Form 3CD has been inserted to report any advance received from the buyer but forfeited due to the non-materialisation of a deal to the sale of the capital asset.
The auditor is not required to report any such forfeited amount in respect of a personal capital asset or stock-in-trade. Any advances received and forfeited towards the sale of stock-in-trade would be taxable under section 28(i), and would not be required to be reported since the amount would be credited to the profit & loss account.
The requirement of reporting arises only on forfeiture of advance. If an advance has been received and has been outstanding for a considerable time, there is no requirement to report such amount unless and until it is forfeited by an act of the assessee.
FAQ 19. Should advance received from a person for the sale of goods also be disclosed under Clause 31?
Loans or deposits are generally squared off by repayment of the sum to the lender. While as in the case of advance for the sale of goods, the party’s ledger is squared off by the delivery of goods or services. Thus, an advance received against the agreement of sale of goods could not be deemed a loan or deposit. Accordingly, details of advances shall not be reported in Clause 31. Further, the ICAI, in the guidance note, has clarified that the advance received against the agreement of sale of goods is not a loan or deposit.
FAQ 20. ABC Ltd. has rendered services to its Associated Enterprise resulting in a net profit of 15% on cost. Transfer Pricing Officer (TPO) calculated the ALP of this transaction at 20% of the cost and accordingly made an adjustment. Is it required to be reported in Form 3CD?
As per Clause 30A of Form 3CD, if any primary adjustment to the transfer price has been made as per Section 92CE(1), then the following details need to be given in Clause 30A of the form.
(a) Clause of Section 92CE(1) in which primary adjustment is made
(b) Amount of primary adjustment
(c) Whether the excess money available with the associated enterprise required to be repatriated to India as per the provisions of Section 92CE(2)?
(d) If yes, whether the excess money has been repatriated within the prescribed time.
(e) If no, the amount of imputed interest income on such excess money has not been repatriated within the prescribed time.
FAQ 21. How to calculate the interest on excess money that need to be repatriated after a primary adjustment?
Rule 10CB provides the rate of interest at which interest has to be calculated on excess money or part thereof which is not repatriated within the time limit. Where the international transaction is denominated in Indian rupees, the rate of interest will be the one-year marginal cost of fund lending rate of the State Bank of India as of 1st April of the relevant previous year, plus 325 basis points (plus 3.25%). Where the international transaction is denominated in foreign currency, the rate of interest shall be the six-month London Interbank Offered Rate (LIBOR) as of 30th September of the relevant previous year plus 300 basis points (plus 3%).
It is possible that the amount of imputed interest income on the excess money not repatriated to India may relate to more than one year. Having regard to Rule 10CB, the interest liability extends till the date of repatriation. Accordingly, for the relevant year under audit, such liability in respect of imputed interest may extend not only to the primary adjustment but may also relate to the primary adjustment made in the earlier years.
FAQ 22. My client has borrowed money from its foreign holding company, and the interest paid on such a loan was Rs. 1.05 crore during the previous year. Whether this transaction is reportable in Form 3CD?
As per Section 94B, if an Indian company or PE of a foreign company pays interest in excess of Rs. 1 crore to the associated enterprise, the deduction for interest shall be restricted to lower of the following:
(a) Total interest paid or payable in excess of 30% of earnings before interest, taxes, depreciation, and amortisation (‘EBITDA’) of the borrower in the previous year; or
(b) Interest paid or payable to AEs for that previous year.
The excess interest, which is disallowed, can be carried forward for 8 assessment years following the year of disallowance, to be allowed as a deduction against profits and gains of any business in the subsequent years, to the extent of maximum allowable interest expenditure under this provision.
A new Clause 30B has been inserted in Form 3CD, which requires details of such interest payment with the following disclosures:
(a) Amount of expenditure by way of interest or of similar nature incurred.
(b) EBITDA during the previous year.
(c) Amount of expenditure by way of interest or of similar nature as per (a) above, which exceeds 30% of EBITDA as per (b) above.
(d) Details of interest expenditure brought forward as per Section 94B(4).
(e) Details of interest expenditure carried forward as per Section 94B(4)
This clause shall not be applicable in the case of a company that is engaged in the business of banking or insurance.
FAQ 23. Whether the figure of EBITDA shall be as per books of account or as per provisions of Income-tax?
While computing the EBITDA, the figures as per the final audited stand-alone accounts of the company should be considered, not the figures adjusted for the income tax computation after various allowances and disallowances.
FAQ 24. How the details of loans accepted and repayment thereof shall be reported in Clause 31 of Form 3CD?
|Nature of Transaction during the year||Mode||To be reported in|
|Loan or Deposit Accepted||A/c Payee cheque||Clause 31(a)|
|Loan or Deposit Accepted||Others||Clause 31(a)|
|Receipt of advance for transfer of Immovable Property||A/c Payee cheque||Clause 31(b)|
|Receipt of advance for transfer of Immovable Property||Others||Clause 31(b)|
|Other Receipt of Rs. 2 lakhs or more||Cheque or draft (not being A/c Payee)||Clause 31(ba)|
|Other Receipt of Rs. 2 lakhs or more||Other Mode (not being Cheque or Draft)||Clause 31(bb)|
|Payment in excess of Rs. 2 lakhs||Cheque or draft (not being A/c Payee)||Clause 31(bd)|
|Payment in excess of Rs. 2 lakhs||Other Mode (not being Cheque or Draft)||Clause 31(bc)|
|Repayment of Loan or Deposit or advance for transfer of Immovable Property||A/c Payee cheque||Clause 31(c)|
|Repayment of Loan or Deposit or advance for transfer of Immovable Property||Others||Clause 31(c)|
|Repayment of loan or deposit or advance for transfer of Immovable Property (originally accepted other than through cheque)||Any||Clause 31(d)|
|Repayment of loan or deposit or advance for transfer of Immovable Property (originally accepted through cheque or draft not being A/c payee cheque/draft)||Any||Clause 31(e)|
FAQ 25. My client has furnished the statement of tax deducted or tax collected within the prescribed time limit. Do I have to report the details of such returns in form 3CD?
Up to Assessment Year 2017-18, an assessee is required to report details regarding furnishing of statement of tax deducted or tax collected under clause 34(b) if such statements weren’t submitted within the prescribed time limits. However, w.e.f. the assessment year 2018-19, Form 3CD requires such details even if the assessee has submitted the statements within prescribed time limits.
Further, if the assessee failed to report all transactions in statements of TDS/TCS, then unreported transactions have to be disclosed in clause 34(b) of Form 3CD.
FAQ 26. Should capital expenditure be reduced from the actual cost of a capital asset if tax was not deducted from such expenditure?
As per section 40(a)(ia), 30% of an expense is disallowed if tax is not deducted or after deduction is not paid to the government. Whether this provision shall be applicable only in the case of revenue expenditure or in respect of capital expenditure as well has been a matter of dispute between taxpayer and revenue. The revenue always argues for reducing the actual cost of a fixed asset if the tax has not been deducted for an expense that is capitalised as per provisions of section 43(1). In the cases of CIT v. Plasmac Machine Mfg. Co. Ltd.  201 ITR 650 (Bom.) and Sumilon Industries Ltd. v. ITO  3 taxmann.com 187 (Ahmedabad-ITAT), it was held that disallowance under this section could be made only from an expense that is claimed in Profit and Loss Account. Since, in the case of capital expenditure, no deduction is claimed under the P/L account, there should not be any disallowance under section 40(a)(ia) in respect of such payment.
FAQ 27. Should quantitative details of each and every stock be mentioned in clause 35?
Clause 35 requires quantitative details of ‘principal items’ of raw materials and finished goods. Therefore, information about petty items need not be given. Normally, items that constitute more than 10% of the aggregate value of purchases, consumption, or turnover may be classified as principal items.
FAQ 28. In case of a manufacturing concern, the auditor failed to ascertain the yield of finished goods because of different measurement units of raw material and the finished product. How to report this in Form 3CD?
If the assessee is engaged in the manufacture of goods, the yield and shortage cannot be ascertained if the input of raw materials and the output of finished goods are recorded in different units of measurement.
If the end product is a standard item and can be converted back and related to the input of the raw material in the same unit of measurement, it should be done to ascertain the shortage, yield, etc. If it is not possible, the tax auditor should state the fact under this clause.
FAQ 29. How to furnish the ratios in Clause 40 of Form 3CD?
Clause 40 seeks the following details ratios for the previous year and the preceding previous year.
|S.No.||Particulars||Previous Year||Preceding Previous Year|
|1.||Total turnover of the assessee|
|5.||Material consumed/finished goods produced|
The ratios have to be given for the business as a whole and not product-wise. The relevant previous year’s figures are to be taken from the last previous year’s audit report. If the previous year is not subject to audit, nothing should be mentioned in the relevant column.
The tax auditor is not to sit in judgment over whether ratios calculated under clause 40 are fair for tax assessment purposes. He should simply comply with clause 40 to calculate and report the ratios with calculations.
FAQ 30. A demand was raised with respect to Custom duties on my client, and the same was adjusted against the refund due in his name. So no amount was paid by him to the department. As an auditor, do I need to disclose the same in form 3CD?
Yes, an auditor is required to report the details of demand raised or refund issued to the assessee during the previous year, irrespective of the fact that it was adjusted against any pending demand or refund. Details are to be shown under Clause 41 of Form 3CD.
FAQ 31. Should any consideration for the issue of shares that exceeds the fair market value of the shares received by a start-up be reported in clause 29?
Reporting obligation under Clause 29 is triggered if a closely held company issues unquoted shares at a premium. In such case, the excess of the premium over the fair market value of the shares shall be taxable as income from other sources in the hands of the company.
The DPIIT’s recognised start-ups are exempted from the applicability of Section 56(2)(viib) subject to the satisfaction of various conditions prescribed under the notification issued by the DPIIT1. Therefore. Clause 29 shall apply only to closely held companies except DPIIT recognised start-ups that satisfy the condition for exemption. If the private limited company in question is a DPIIT-recognised start-up eligible for exemption under section 56(2)(viib), the e-mail received from CBDT regarding eligibility for exemption must be verified by the tax auditor, and suitable remarks should be made regarding the applicability of the exemption and the non-applicability of Clause 29.
Section 56(2)(viib) and Notification issued by the DPIIT1 prescribe various conditions for a start-up to claim exemption from payment of tax under this provision. In case of failure to comply with these conditions, the consideration received from the issue of shares, as exceeding the fair market value of such shares, shall be deemed to be the income of the company chargeable to tax for the previous year in which such failure takes place. When the exemption is withdrawn, it shall be deemed that the company has underreported the income in consequence of the misreporting, and consequently, a penalty of an amount equal to 200% of tax payable on the underreported income shall be levied as per Section 270A2.
FAQ 32. Whether a change in shareholding of a start-up company is to be reported in Clause 32(b) of Form 3CD?
Clause 32(b) applies only to closely-held companies (companies in which the public is not substantially interested). It seeks information on the change in shareholding of the company in the previous year due to which the losses incurred before the previous year cannot be allowed to be carried forward in terms of section 79.
Section 79 provides that the losses incurred by a closely held company in any year before the previous year shall not be carried forward and set off against the income of the previous year unless the shares of the company carrying at least 51% of the voting power are beneficially held by the same persons on the following two dates:
(a) On the last day of the previous year in which loss was incurred;
(b) On the last day of the previous year in which, such brought forward loss has to be set off.
The losses incurred by an eligible start-up shall be allowed to be carried forward and set off against the income of the previous year on the satisfaction of any of the two conditions specified below:
Condition 1: Continued 51% shareholding
In the year of set-off of losses, at least 51% of voting power is beneficially held by the same persons who held them as on the last day of the year in which loss was incurred; or
Condition 2: Continued 100% shareholders with the same voting rights
100% of shareholders, on the last day of the previous year in which loss was incurred, should continue to hold the same shares on the last day of the previous year in which loss is to be set off. Further, such losses should have been incurred for 7 years beginning from the year of incorporation of the company.
Hence, the tax auditor should check whether a change in shareholding as envisaged by section 79 of the Act has taken place, and the composition of shareholding as of the last day of the current previous year should be compared with the composition of shareholding as at the last day of each previous year in which loss was incurred. The comparison should be made by reference to the Register of Members. The carry-forward of loss incurred in respect of different previous years should be determined the previous year-wise.
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