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Seagram Distilleries Pvt. Ltd (Now Pernod Ricard I Vs. Principal Commissioner Of Income Tax, Central Circ
December, 15th 2015
$~
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Reserved on: September 23, 2015
                                                     Date of decision: October 06, 2015

                                   ITA 898/2009
        SEAGRAM DISTILLERIES PVT. LTD
        (NOW PERNOD RICARD INDIA PVT.LTD.)          ..... Appellant
                     Through: Mr. Deepak Chopra, Mr Aditya Gupta,
                     and Ms Neha Singh, Advocates.

                                 versus

        COMMISSIONER OF INCOME TAX- III, NEW
        DELHI                                        ..... Respondent
                    Through: Mr. Kamal Sawhney, Senior Standing
                    counsel with Mr. Raghavendra Singh, Junior
                    Standing counsel and Mr Shikhar Garg, Advocate.

                                          WITH
                                     ITA 899/2009
        SEAGRAM DISTILLERIES PVT. LTD
        (NOW PERNOD RICARD INDIA PVT.LTD.)          ..... Appellant
                     Through: Mr. Deepak Chopra, Mr Aditya Gupta,
                     and Ms Neha Singh, Advocates.

                                 versus

        COMMISSIONER OF INCOME TAX- III, NEW
        DELHI                                        ..... Respondent
                    Through: Mr. Kamal Sawhney, Senior Standing
                    counsel with Mr. Raghavendra Singh, Junior
                    Standing counsel and Mr Shikhar Garg, Advocate.

                                          WITH
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                           Page 1 of 17
                                    ITA 900/2009
        SEAGRAM DISTILLERIES PVT. LTD.
        (NOW PERNOD RICARD INDIA PVT.LTD.)          ..... Appellant
                     Through: Mr. Deepak Chopra, Mr Aditya Gupta,
                     and Ms Neha Singh, Advocates.

                                 versus

        COMMISSIONER OF INCOME TAX- III, NEW
        DELHI                                        ..... Respondent
                    Through: Mr. Kamal Sawhney, Senior Standing
                    counsel with Mr. Raghavendra Singh, Junior
                    Standing counsel and Mr Shikhar Garg, Advocate.

                                          WITH
+                                   ITA 901/2009
        SEAGRAM DISTILLERIES PVT. LTD.
        (NOW PERNOD RICARD INDIA PVT.LTD.)          ..... Appellant
                     Through: Mr. Deepak Chopra, Mr Aditya Gupta,
                     and Ms Neha Singh, Advocates.

                                 versus

        COMMISSIONER OF INCOME TAX III NEW
        DELHI                                        ..... Respondent
                    Through: Mr. Kamal Sawhney, Senior Standing
                    counsel with Mr. Raghavendra Singh, Junior
                    Standing counsel and Mr Shikhar Garg, Advocate.

                                           AND

+                                  ITA 237/2015

        SEAGRAM MANUFACTURING PVT.LTD.
        (NOW PERNOD RICARD INDIA PVT.LTD.)              ..... Appellant

ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015          Page 2 of 17
                                 Through: Mr. Deepak Chopra, Mr Aditya Gupta,
                                 and Ms Neha Singh, Advocates.

                                 versus

        PRINCIPAL COMMISSIONER OF INCOME TAX,
        CENTRAL CIRCLE- III, NEW DELHI.                 ..... Respondent
                     Through: Mr N. P. Sahni, Senior Standing Counsel
                     with Mr Nitin Gulati, Junior Standing Counsel.

        CORAM:
        DR. JUSTICE S. MURALIDHAR
        MR. JUSTICE VIBHU BAKHRU

                                 JUDGMENT
%                                  06.10.2015
Dr. S. Muralidhar, J
1. These five appeals under Section 260A of the Income Tax Act, 1961
(,,Act) by the two assesses, Pernod Ricard India Private Limited (earlier,
Seagram Distilleries Private Limited) and Seagram Manufacturing Private
Limited, raise a common question of law as to whether provision for transit
breakages has a scientific basis or is contingent in nature and as such is not
an allowable deduction while computing the total income of the Assessees.
The Assessment Years (AYs) involved in the present appeals are AYs
2001-02 to 2004-05.


2. The first Assessee, Seagram Distilleries Private Limited was a 100%
subsidiary of Seagram India Private Limited engaged in the business of
manufacture and sale of Grain Neutral Spirit (GNS) and India Made Foreign
Liquor (IMFL) from its Nasik plant. The parent company, originally
incorporated under the Companies Act, 1956 on 3rd September, 1993 under
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                  Page 3 of 17
the name and style of Seagram India Private Limited, changed its name to
Pernod Ricard India Private Limited (PRIPL) and obtained a fresh certificate
of incorporation on 23rd April, 2007. Thereafter, Seagram Distilleries Private
Limited was merged into the parent company, PRIPL by a scheme of
amalgamation which received sanction from this Court vide an order dated
8th October 2010. The second Assessee, Seagram Manufacturing Limited
(SML) is a 100% subsidiary of Seagram India Private Limited, now PRIPL,
and is engaged in the business of blending, bottling, and trading of IMFL.
The memo of parties in the appeal by the second Assessee, being ITA No.
237, shows the second Assessee as also ,,now Pernod Ricard India Private
Limited. Both the Assessees products are transported in glass bottles by
roads to various states in the country. According to the Assessees, since the
bottles are prone to breakages, the Assessees while dispatching the goods
make a provision for breakages on the basis of the past history of the region
to which the goods are transported. Once the goods reach their intended
destination the Assessees reverse the provision and debits the actual
breakages to the profit and loss account (,,P&L Account). At the close of
the accounting year i.e. March 31st the Assessees make a similar provision
for all goods under dispatch and debit the same to the P&L Account.
However such provision is reversed on the first day of the following
financial year and only actual breakages are debited to the P&L Account in
the succeeding year as and when the goods under dispatch reach the
destination.


3. The Assessing Officer (,,AO), in the case of the first Assessee, by the
order dated 26th March 2004 for AY 2001-02, held that in cases of breakage
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                 Page 4 of 17
and pilferage, the liability is not certain. Consequently, the provision made
was treated as a contingent liability and, therefore, not allowable. It was
added back to the total income of the first Assessee. The Commissioner of
Income Tax (Appeals) [,,CIT (A)] by an order dated 31 st March 2006
allowed the Assessees appeal. The CIT (A) held that the provision had been
made on a scientific basis and that the method of accounting for transit
breakages had been followed by the first Assessee year after year. The CIT
(A) held that the decision of the Supreme Court in Bharat Earth Movers
v.CIT 245 ITR 428 (SC) supports the case of the first Assessee.




4. The Revenue then appealed to the ITAT by filing ITA No. 2532/Del/2006
for AY 2001-02. By the time the said appeal was taken up for hearing, the
appeals for the other AYs i.e. 2002-03, 2003-04 and 2004-05, being ITA
Nos. 113, 114 and 3170/Del/2007, were also filed by the Revenue. By the
common order dated 16th March 2009, the ITAT allowed the appeals of the
Revenue on the above aspect of provision for breakages for AYs 2001-02,
2002-03, 2003-04 and 2004-05. It was held that the provision made was
without "any basis much less scientific one". It was noted that this was
evident by the fact that the first Assessee itself had reversed the provision on
the first day of the following year. Analysing the chart submitted by the first
Assessee on the provision made on the actual breakages for each of the AYs,
the ITAT noted that in each year the provision made was excessive. The first
Assessee did not have enough experience of its own to enable it to make
provision of expenditure on scientific basis. It appeared to have been made
on ad hoc basis depending on the places of destination. By a subsequent
order dated 28th November 2014, the ITAT followed its earlier
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                   Page 5 of 17
aforementioned decision and dismissed the second Assessees cross appeal
on the same issue for AY 2001-02. Against the said dismissal the second
Assessee has filed ITA No. 237 of 2015. Thus, the five appeals before this
Court are as under:
Appeal before the High         Appeal before the ITAT   Assessment   ITAT Order
Court                                                   Year
ITA 237/2015                   ITA No. 4535/Del/2004    2001-02      28th November,
(Second Assessees              (Assessees Appeal)                    2014
appeal)


ITA No. 898/2009               ITA No. 2802/Del/2007    2004-05      16th March,
(First Assessees appeal)       (Assessees appeal)                    2009


ITA No. 899/2009               ITA No 146/Del/2007      2002-03      16th March,
(First Assessees appeal)       (Assessees appeal)                    2009


ITA No. 900/2009               ITA No. 147/Del/2007     2003-04      16th March,
(First Assessees appeal)       (Assessees appeal)                    2009


ITA No. 901/2009               ITA No. 2532/Del/2006    2001-02      16th March,
(First Assessees appeal)       (Revenues appeal)                     2009




5. It must be noticed that the first Assessees appeal, being ITA No. 1369 of
2009, against the order of the ITAT dated 14th September, 2009 in ITA No.
3195 of 2009 for the AY 2005-06 raising the same question of law is
pending.

ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                      Page 6 of 17
6. This Court has heard the submissions of Mr. Deepak Chopra, learned
counsel appearing for the Assessees, Mr. N.P. Sahni, Senior Standing
counsel and Mr. Raghvendra Singh, Junior Standing counsel for the
Revenue.


7. Mr. Chopra relied on the decisions in Bharat Earth Movers (supra),
Commissioner of Income Tax v. Vinitec Corporation P. Ltd. 278 ITR 337
(Del), Commissioner of Income Tax v. Insilco Ltd. 179 Taxman 55 (Del),
Commissioner of Income Tax v. Sony India Pvt. Ltd. [2007] 160 Taxman
397 (Del), Commissioner of Income Tax v. Beema Manufactures Pvt. Ltd.
[2003] 130 Taxman 162 (Del) and Commissioner of Income Tax v.
Hewlett Packard (P) Ltd. [2008] 173 Taxman 162 (Del) to urge that the
provision for transit breakages, having been calculated on a scientific basis,
was an allowable deduction under Section 37(1) of the Act. Relying on the
decision in Commissioner of Income Tax v. Balaji Distilleries Ltd. 126
Taxman 264 (Madras) and Commissioner of Income Tax v. Brindavan
Beverages (P) Ltd. 335 ITR 163 (Karn), Mr. Chopra submitted that transit
breakages were normal to the bottling business and, therefore, allowable as a
revenue expenditure. By the same analogy, the provision for said breakages
should also be allowed particularly since the provision was reversed on the
opening day of the following year. Thereby, there was no loss to the
Revenue. He placed reliance on the decision of the Commissioner of
Income Tax v. Excel Industries Ltd. 358 ITR 295 (SC).


8. Mr. Chopra referred to the ledger accounts of transit breakages and transit
stocks pertaining to the AYs in question. He pointed out that it was not as if
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                 Page 7 of 17
the estimate of breakages made by the Assessees was totally off the mark as
was sought to be projected by the Revenue. Referring to the Accounting
Standards 29 (AS 29) issued by the Institute of Chartered Accountants of
India (ICAI), he submitted that it was incumbent on the Assessees to make a
provision for known liabilities failing which the balance sheet would not
reflect the true and fair picture of the accounts. He also referred to the
Notification No. SO 69(E) dated 25th January 1996, issued by the Central
Board of Direct Taxes (,,CBDT) which required that "provisions should be
made for all known liabilities and losses even though the amount cannot be
determined with certainty and represents only a best estimate in the light of
available information." The CBDT had highlighted the need for the
Assessees to adopt such accounting policies "so as to represent a true and
fair view of the state of affairs of the business, profession or vocation in the
financial statements prepared and presented on the basis of such accounting
policies." It is accordingly submitted that the ITAT erred in holding the
provision for the known liabilities for transit breakages made by the
Assessees to be a contingent liability and, therefore, not allowable as a
revenue expenditure. Reliance was also placed on the decision of the
Supreme Court in Rotork Controls India P. Ltd. v. Commissioner of
Income Tax [2009] 314 ITR 62 (SC).


9. Countering the above submissions, Mr. N.P. Sahni, learned Senior
Standing counsel and Mr. Raghvendra Singh, learned Junior Standing
counsel appearing for the Revenue pointed out that the very nature of the
line of business of the Assessees was such that the breakages would be
known within 15 to 30 days of the dispatch or at the latest on the delivery of
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                   Page 8 of 17
the goods. The matching of the breakages by debiting it to the P&L Account
would occur soon thereafter within that financial/accounting year itself.
Therefore, there was no occasion for making any provision for the
contingent liability of transit breakages likely to take place during the
ensuing financial year.           Counsel for the Revenue pointed out that the
estimates of transit breakages made by the Assessees for the AYs in
question were off the mark and in fact in excess of the actual breakages,
which in any event were allowed as revenue expenditure in the year in
which such breakages occurred. They submitted that the ITATs impugned
orders do not call for any interference.


10. The Court proposes to begin examining the above contentions by first
referring to the applicable AS. The cue for this is to be found in the CBDT
Notification No. SO 69(E) dated 25th January 1996 issued under Section
145(2) of the Act, which states that provisions should be made for "all
known liabilities and losses even though the amount cannot be determined
with certainty and represents only a best estimate in the light of available
information." AS-29 deals with "Provisions, Contingent Liabilities and
Contingent Assets. The purpose of the AS is to ensure that the balance
sheet and P&L Account of an enterprise should present a true and fair view
of its business affairs. Under AS 29 a 'provision' is defined to mean "a
liability which could be measured only by using a substantial degree of
estimation." The word 'liability' is defined as "a present obligation of the
enterprise arising from past events, the settlement of which is expected to
result in an outflow from the enterprise of resources embodying economic
benefits." ,,Contingent Liability is defined as under:
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                  Page 9 of 17
             "(a) a possible obligation that arises from past events and
             the existence of which will be confirmed only by the
             occurrence or non-occurrence of one or more uncertain
             future events not wholly within the control of the enterprise;
             or

             (b) a present obligation that arises from past events but is
             not recognised because:

             (i) it is not probable that an outflow of resources embodying
             economic benefits will be required to settle the obligation;

             or

             (ii) a reliable estimate of the amount of the obligation
             cannot be made."

11. AS 29 further states that 'provisions' are distinguishable from other
liabilities such as trade payables and accruals "because in the measurement
of provisions substantial degree of estimation is involved with regard to the
future expenditure required in settlement." However a 'provision' is
recognised only where:
             "(a) an enterprise has a present obligation as a result of a
             past event:

             (b) it is probable that an outflow of resources embodying
             economic benefits will be required to settle the obligation;
             and

             (c) a reliable estimate can be made of the amount of the
             obligation.

             If these conditions are not met, no provision should be
             recognised."


ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                    Page 10 of 17
12. Appendix A to AS-29 sets out in a tabular the summary of the AS. The
provisions which are recognised and those that are not are set out in separate
columns. What is not recognised is a provision for a liability which arises
from ,,a possible obligation that may, but probably will not, require an
outflow of resources.


13. It is not in dispute that as and when transit breakages do occur the
resultant losses are allowable as revenue expenditure, given the nature of the
business of the Assessees. The decision in Commissioner of Income Tax v.
Balaji Distilleries Ltd. (supra) and Commissioner of Income Tax v.
Brindavan Beverages (P) Ltd. (supra) recognised this. In fact, for AYs
2002-03 to 2004-05 the AO has allowed transit breakages as revenue
expenditure in the year in which the breakages occurred.


14. The issue, however, is the justification for creating a provision for such
breakages anticipating them in advance of the occurrence of the actual
breakages. If such transit breakages cannot be estimated with a reasonable
degree of certainty then the liability on that score would be considered
'contingent' in terms of the definition of that expression in AS 29 i.e. "a
possible obligation that arises from past events and the existence of which
will be confirmed only by the occurrence or non-occurrence of one or more
uncertain future events not wholly within the control of the enterprise". AS
29 itself makes it explicit that no provision for a contingent liability would
be recognised.


15. As regards the judicial decisions on the point, the Court proposes to first
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                  Page 11 of 17
discuss the decision in Bharat Earth Movers (supra). There the Assessee
had floated a beneficial scheme for its employees for encashment of leaves.
The Assessee made a provision for meeting the liability to the extent of the
entitlement of the officers and staff to accumulated earned leaves in terms of
the scheme and claimed that provision as a deduction. The ITAT held in
favour of the Assessee but the High Court reversed it on the ground that the
provision for the accrued leaves was a contingent liability. The Supreme
Court, however, disagreed with the High Court and held as under:
             "The law is settled: if a business liability has definitely
             arisen in the accounting year, the deduction should be
             allowed although the liability may have to be quantified and
             discharged at a future date. What should be certain is the
             incurring of the liability. It should also be capable of being
             estimated with reasonable certainty though the actual
             quantification may not be possible. If these requirements are
             satisfied, the liability is not a contingent one. The liability is
             in prasenti though it will be discharged at a future date. It
             does not make any difference if the future date on which the
             liability shall have to be discharged is not certain."

16. The Court further summarised the decision in Metal Box Co. of India
Ltd. v. Their Workmen [1969] 73 ITR 53 (SC) as under:
             "(i) For an assessee maintaining his accounts on mercantile
             system, a liability already accrued, thought to be discharged
             at a future date, would be a proper deduction while working
             out the profits and gains of his business, regard being had to
             the accepted principles of commercial practice and
             accountancy. It is not as if such deduction is permissible
             only in case of amounts actually expended or paid;

             (ii) Just as receipts, though not actual receipts but accrued
             due are brought in for the income-tax assessment, so also
             liabilities accrued due would be taken into account while
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                        Page 12 of 17
             working out the profits and gains of the business;

             (iii) A condition subsequent, the fulfilment of which may
             result in the reduction or even extinction of the liability,
             would not have the effect of converting that liability into a
             contingent liability; and

             (iv) A trader computing his taxable profits for a particular
             year may properly deduct not only the payments actually
             made to his employees but also the present value of any
             payments in respect of their services in that year to be made
             in a subsequent year if it can be satisfactorily estimated."

17. On facts, in Bharat Earth Movers (supra), the Supreme Court was
satisfied that the provision made by the Assessee for meeting the liability
"incurred by it under leave encashment scheme proportionate with the
entitlement earned by the employees of the company... is entitled to
deduction out of the gross receipts for the accounting year during which the
provision is made for the liability" and that "the liability is not a contingent
liability." The decision acknowledged that where a scheme for leave
encashment is floated by a company, the number of employees and their
entitlements to leave encashment can be estimated with a reasonable degree
of certainty. It would be a case of a 'known' liability.


18. In Commissioner of Income Tax v. Vinitec Corporation P. Ltd. (supra)
the question for consideration was whether a provision for future warranty
expenditure is a contingent liability. On facts, it was not in dispute that the
warranty clause was part of the sale document and imposed a liability on the
Assessee to discharge an obligation under the clause for the period of
warranty. "It was a liability which was capable of being construed in definite

ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                   Page 13 of 17
terms which had arisen in the accounting year even though the actual
quantification and discharge was deferred to a future date." In terms of the
accepted principles of commercial practice and accountancy, it was held that
a liability accrued, though discharged at a future date would be a proper
deduction.





19. In Rotork Controls India P. Ltd. v. Commissioner of Income Tax
(supra), the Assessee sold valve actuators and at the time of sale provided a
standard warranty whereby in the event of the product or a part thereof
becoming defective within the periods specified thereunder, the Assessee
had an obligation to rectify or replace the defective part free of charge. It
was noticed that although the AYs in question were 1991-92 to 1994-95 the
claim of such allowance had been allowed since AY 1983-84 itself. It was
held that the warranty became an integral part of sale price and, therefore,
warranty provision has to be recognised because "the Assessee had a present
obligation as a result of past event resulting in an outflow of resources and a
reliable estimate could be made of the amount of obligation." The Assessee
was held entitled to a deduction in respect of the warranty provision under
Section 37 of the Act.


20. The Court in Rotork Controls India P. Ltd. (supra) explained:
        "The principle of estimation of the contingent liability is not the
        normal rule. It would depend on the nature of the business, the nature
        of sales, the nature of the product manufactured and sold and the
        scientific method of accounting adopted by the assessee. It would also
        depend upon the historical trend and upon the number of articles
        produced."

ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                  Page 14 of 17
21. Having examined the decisions that explain the legal position, the Court
proceeds to examine the facts on hand. The chart produced by the first
Assessee shows that for AY 2001-02 the total amount debited to the P&L
Account by way of provision for transit breakages was Rs.6,40,338 and the
actual breakages were Rs.2874. In effect, therefore, the provision was in
excess by Rs.6,37,464. However, the AO while disallowing the provision
added back the entire amount of Rs.6,40,338.


22. For the next four years i.e. AYs 2002-03 to 2005-06, the actual
breakages were less than the provision created. The AO allowed the
expenditure of the actual breakages as revenue expenditure and added back
the excess provision made since it was in the nature of a contingent liability.
In other words what was disallowed was the difference between the
provision created and reversed.


23. The Court is unable to discern any uniform scientific method followed
by the Appellant in making provision for the breakages. As noticed by the
ITAT in its order dated 16th March 2009, the explanation offered by the
Appellant was that on an ad hoc basis it fixed a rate per case of bottles. In
the case of Andhra Pradesh, the rate was Rs.10 per case, for Goa and
Karnataka it was Rs.15 per case. Also the breakages are known within a
period of 15 to 30 days after despatch of the goods. The Court also concurs
with the view of the ITAT that with the first Assessee having entered the
line of business only from AY 2001-02, it cannot be said to have gathered
sufficient experience to have reasonably estimated such breakages for the
AYs in question. In the circumstances, the 'liability' on that score could at
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                  Page 15 of 17
best be described as a 'contingent liability' as defined in AS-29.


24. Extensive reference has been made to AS-29 since one of the
submissions of the Assessees is that its failure to make a provision for transit
breakages would violate the applicable accounting standards. However, as
has been discussed hereinbefore, the AS is clear that "an enterprise should
not recognise a contingent liability". Therefore, a provision made by the
Assessees for transit breakages in future which cannot be reasonably
estimated would not adhere to the AS and the balance sheet so prepared
would not present a true and fair view of the state of its business affairs.


25. The question is not whether on account of the reversal of the provision
made by the Assessees on the first day of the following year, there would be
no loss as such to the Revenue. The question is whether making a provision
for transit breakages would be allowable as a business expenditure. In light
of the law explained in the above decisions, the Court is satisfied that the
view taken by the ITAT in the present case is not erroneous in law.


26. To summarise the legal position as far as the Assessees are concerned:


(a) There is no reasonable scientific method adopted by the Assessees to
estimate the transit breakages so as to justify creating of provision for such
breakages.


(b) The provision would, in the circumstances, be a provision for a
contingent liability and, therefore, in terms of the AS 29 ought not be
ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                    Page 16 of 17
recognised.


(c)The actual transit breakages as and when they occur are allowable as
revenue expenditure in the accounting year in which such breakages occur.


27. Consequently, the question framed is answered in favour of the Revenue
and against the Assessees.


28. It is clarified that while giving an appeal effect to this order, the AO
shall allow the actual transit breakages for AY 2001-02 as revenue
expenditure consistent with the settled legal position. The Assessees would
also be permitted to get the benefit of the reversal of the provision for transit
breakages made in the AYs in question accordance with law.


29. The appeals are dismissed but in the circumstances with no order as to
costs.


                                                        S. MURALIDHAR, J



                                                         VIBHU BAKHRU, J
OCTOBER 06, 2015
dn




ITA Nos. 898, 899, 900 & 901 of 2009 & 237 of 2015                   Page 17 of 17

 
 
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