Right to cross-examination a witness adverse to the assessee is an indispensable right and the cornerstones of natural justice.

Right to cross-examination a witness adverse to the assessee is an indispensable right and the cornerstones of natural justice.

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Right to cross-examination a witness adverse to the assessee is an indispensable right and the cornerstones of natural justice.  

 IN THE INCOME TAX APPELLATE TRIBUNAL  
 KOLKATA ‘B’ BENCH, KOLKATA  
(Before Sri J. Sudhakar Reddy, Accountant Member & Sri Aby T. Varkey, Judicial Member)  
 I.T(SS).A No. 70/Kol/2017  
 Assessment Year: 2010-11  
Deputy Commissioner of Income Tax, Central Circle-2(2), Kolkata……………………….…..Appellant  
M/s. Rashmi Float Glass Ltd……………………………………………..………………………………………Respondent  39, Shakespeare Sarani  
6th Floor  
Kolkata – 700 001  
[PAN : AADCR 7555 B]  
Appearances by:  
Shri A.K. Tulsiyan, FCA, appeared on behalf of the assessee.  
Shri Vijay Shankar, CIT D/R, appearing on behalf of the Revenue.  
Date of concluding the hearing : November 14th, 2018  
Date of pronouncing the order : December 12th , 2018  
ORDER 
Per J. Sudhakar Reddy, AM :- 
This appeal filed by the revenue is directed against the order of the Learned  Commissioner of Income Tax (Appeals)-20, Kolkata, (hereinafter the “ld.CIT(A)”),  passed u/s. 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 22/03/2017, for the  Assessment Year 2010-11.  
2. There is a delay of 26 days in filing of these appeals. After perusing the petition  for condonation, we are convinced that the department was prevented by sufficient  cause from filing this appeal on time. Hence the delay is condoned and appeal admitted.  
4. The assessee is a company and it filed its original return of income on  04/10/2010 for the Assessment Year 2010-11 declaring total income of Rs.46,654/-. A  search and seizure operation u/s 132 of the Act, was conducted at the business and  residential premises of Rashmi Group at Kolkata and other places, on 18/02/2013.  Thereafter the Assessing Officer issued notice u/s 153A dt. 08/05/2014 and was served  upon the assessee on 26/05/2014. In response to the notice, the assessee filed revised  return declaring the same income as in the original return of income. The Assessing  Officer completed the assessment u/s 153A r.w.s. 143(3) of the Act on 31/03/2015  determining total income of the assessee at Rs.9,25,10,580/-.
4.1. Aggrieved the assessee carried the matter in appeal. The ld. First Appellate  Authority granted part relief. He relied on the decisions of the Hon’ble Calcutta High  Court in the case of PCIT vs. Salasar Stock Broking Limited (ITA No.264 of 2016) dt.  24.08.2016 and the judgment in the case of CIT vs. Veerprabhu Marketing Ltd. [2016] 73  taxmann.com 149 (Calcutta) and held that, incriminating material is a prerequisite for  making additions in assessment u/s 153A/143(3) of the Act, wherever assessments  have not abated. He pointed out that the Hon’ble Jurisdictional High Court has  concurred with the judgment of the Hon’ble Delhi High Court in the case of CIT vs. Kabul  Chawla (2016) 380 ITR 0573 (Del). He further relied upon a number of decisions of the  ITAT Kolkata Bench and deleted all the additions made in the assessment u/s  153A/143(3), which were not based on any incriminating material found during the  course of search and seizure proceedings and as the assessment has not abated.  
  1. Aggrieved the revenue is in appeal before us on the following grounds:-  
“i. That the Ld.CIT(A) has erred in adjudicating the matter without making  any independent enquiry to determine the existence of incriminating evidence  in the seized material.  
ii. That the Ld. CIT(A) has failed to appreciate that a Special Leave Petition  has been admitted by the Hon’ble Supreme Court[in [2017] 79 Taxman  115(SC) CIT-7 vs RRJ Securities Ltd] on the issue/judicial pronouncements  which has been overlooked by the CIT(A), while adjudicating the matter.  
iii. Ld. CIT(A) has also erred in making comparison with the case of Veer  Prabhu Marketing as in the instant case the notice was issued u/s 153C and  not u/s 153A as done in the case of the assessee. Hence, the facts and  circumstances of the instant case with the case relied upon by the Ld.  CIT(Appeals) differ. The case of CIT vs. Kabul Chawla(2016)ITR 0573 (Del)  which was also relied upon by the Ld CIT(A) is also different as the contended  addition was u/s 2(22)(e) of the IT Act.  
iv. Further the Ld CIT(A) erred in overlooking the recent High Court  Judgement in the case of E.N. Gopakumar vs. CIT(Central) (2016) 75  Taxman.com 215(Kerala) wherein it was held that:  
Section 153A read with section 2(22), of the IT Act, 1961- search and seizure assessment in case of (condition precedent)- Assessment Years 2002-03, 2005- 06 and 2006-07- whether completed assessment can be interfered with  Assessing Officer while making assessment U/S 153A only on the basis of some  incriminating materials unearthed during course of search which was not  produced or not already disclosed or made known in course of original  assessment- Held, yes- Pursuant to search carried out in the case of assessee, a  notice U/S 153A(J) was issued- in course of assessment. The Statute nowhere  makes it conditional that the Department has to unearth some incriminating  material to conclude some method against the assessee in events where the  assessment is triggered by a notice u/s 153(1)(a) of the Act.  
v. That on the fact and in the circumstances of the case, the Ld. CIT(A) had  erred in allowing the assessee’s appeal by observing that additions made by  the AO in the assessment order passed u/s 153A/143(3) are not based on any  incriminating documents/papers seized during the search operation.”  
vi. That on the fact and in the circumstances of the case, the Ld. CIT(A) had  erred in not adjudicating the appeal on merit.  
vii. That on the fact and in the circumstances of the case, the department  craves to add more grounds or alter any ground at the time of appeal.”  
  1. The ld. D/R, submitted that the incriminating material need not necessarily be  found during the course of search and that the material which is gathered during the  course of any proceedings under the Act, undertaken in connection with any other  persons and the material gathered during post search operations can also be the basis  on which additions can be made in an assessment made u/s 153A r.w.s. 143(3) of the  Act. He submitted that in the case on hand the addition in question was made based on  statements recorded from various entry operators during the course of search and  seizure operations at their premises and also was based on a cash trail prepared by the  Assessing Officer during the post search enquiry. The sum and substance of his  submission is that the statements recorded during the course of survey and search  operations undertaken by the department separately on several persons, who are  allegedly entry operators and the details of the cash trail of the various transactions  constitute incriminating material, which can be used for making addition in an  assessment u/s 153A r.w.s. 143(3) of the Act. Further reliance was placed on the  judgment of the Hon’ble Kerala High Court in the case of E.N. Gopakumar v.  Commissioner of Income-tax (Central) [2016] 75 taxmann.com 215 (Kerala).  
  2. The ld. Counsel for the assessee, on the other hand, opposed the contentions of  the ld. D/R and argued that the issue in question is covered in favour of the assessee by  a catena of judgments of the Hon’ble High Courts as well as that of the Hon’ble Supreme  Court. He vehemently contended that none of the additions in question in this case was  made based on any material found during the course of search, and hence the additions  made by the Assessing Officer in the assessment framed u/s 153A r.w.s. 143(3) of the  Act, for assessments which have not abated, are bad in law. He submitted that the entire  addition in question was of share application money received and alleged commission  paid on the same, in addition to disallowance u/s 14A of the Act. He submitted that the  cash trial is not part of the seized documents and was prepared by the revenue in post  survey proceedings and that they do not relate to the relevant year.
7.1. He relied on certain case-law to submit that deposits made in the earlier year  cannot be taxed in the current Assessment Year where no cash has been deposited. He  further argued that the addition cannot be made based on the cash trial because the  assessee was not provided with the copy of the bank statement of those third parties in  whose accounts, the alleged cash deposits were traced to and the copies of the bank  statements of the intermediate companies. He further submitted that copy of the  statement recorded from those third parties who are the bank account holders of the  alleged chain of companies were not provided to the assessee nor any opportunity was  given to the assessee to cross-examine the chain of companies whose bank accounts and  statements recorded from directors formed basis of the addition. He submitted that the  assessee was kept in dark and no material whatsoever collected by the Assessing Officer  was confronted to the assessee.  
7.1.1. He further argued that no evidence was brought on record by the Assessing  Officer to prove that the alleged cash deposits in the bank account of third parties was in  fact the assessee’s money. Thus, he submits that the addition cannot be based on such  material which is never confronted to the assessee.  
7.2. On the issue of alleged statements from several entry operators being the basis  of the addition in question, he submitted that the addition was not based on any of these  statements by the Assessing Officer. He argued that the fact that all these alleged entry  operators had retracted from the statements allegedly made by them, is not denied by  the Assessing Officer. He further argued that the copies of the alleged statements were  not confronted with the assessee nor any opportunity given for cross-examining these  statements. He further relied on the judgment of the Hon’ble Madras High Court in the  case of CIT vs S. Kader Khan Son [2008] 300 ITR 157 for the proposition that the  statements recorded during the course of survey cannot be used as evidence. He relied  on the order of the ld. CIT(A) and submitted that the same should be upheld in view of  the binding decisions of the Hon’ble Jurisdictional High Court on this matter. He  distinguished the judgment of the Hon’ble Kerala High Court and submitted that even  otherwise, the judgment cannot be followed in view of the binding nature of the  judgment of the Hon’ble Jurisdictional High Court.  
  1. We have heard rival contentions. On careful consideration of the facts and  circumstances of the case, perusal of the papers on record, orders of the authorities  below as well as case law cited, we hold as follows:-  
8.1. We first consider the legal position as to whether, an addition can be made in an  assessment u/s 153A r.w.s. 143(3) of the Act, which is not based on any incriminating  material found during the course of search and seizure, when the assessment for the  Assessment Year in question has not abated. In the case on hand, the assessee filed its  original return of income on 31/08/2008. The time limit for issual of notice u/s 143(2)  of the Act, was 30/09/2009. The search and seizure operation was conducted in this  case on 18/02/2013. The statutory period for issual of notice u/s 143(2) of the Act, in  the case of the Assessment Years had expired prior to the date of search operation.  Hence the assessment for the impugned Assessment Year has not abated. The Assessing  Officer made the addition in question by observing as under at page 15 & 16 of the  assessment order:-  
I) Names of the companies appealing m statements of the entry providers  given to investigation wing figure as applicants to shares in the assessee  company.  
II) Perusal of the operating bank a/c shows that the a/c of most of the  investing companies is in the same bank as that of the assessee company. 
III) There is no justification on record whatsoever as to whether the  company’s credentials commanded a huge share premium, particularly  when the same is being paid by strangers.  
IV) Summons U/S 131 to such persons I company have not been adequately  responded and the assessee has failed to produce them in response to the  show- cause notice. 
V) The findings that the investing companies which subscribed to the shares  were borne on the file of the ROC and that the monies have come through  a/c payee cheques is at best, neutral. Mere payment by cheques is not  sacrosanct as would not, make a non-genuine transaction as genuine.  
VI) Bonafide and genuineness of the transactions is the main issue and in  this regard, the assessee company has failed miserably.  
VII) Scrutiny has revealed the camouflage adopted by the assessee and  exposed the true nature of the transactions.  
VIII) Onus is on the assessee to prove the identity of share applicants, their  creditworthiness and genuineness of the transactions appearing in its books  of sale which is not proved in this case. In fact, genuineness of the  transactions has not been established in spite of repeated opportunities.  
IX) There is enough material on record to doubt the veracity of the  transactions.”  
 A perusal of the above demonstrates that the additions in question are not based  on any incriminating material found during the course of search.  
8.2. On the legal position, we find that the various Courts of law under similar  circumstances have held as follows:-  
CIT,Kolkata-III Vs. Veerprabhu Marketing Limited [2016] 73 taxmann.com 149  (Calcutta) :  
In this case The Honourable Calcutta High Court expressed the following  views:  
“We are in agreement with the views of the Karnataka High Court that  incriminating material is a pre-requisite before power could have been  exercised under section 153C read with section 153A.  
In the case before us, the assessing officer has made disallowances of the  expenditure, which were already disclosed, for one reason or the other. But  such disallowances were not contemplated by the provisions contained  under section 153C read with section 153A. The disallowances made by the  assessing officer were upheld by the CIT(A) but the learned Tribunal deleted  those disallowances.”  
PCIT-2, Kolkata Vs. Salasar Stock Broking Limited (ITAT No. 264 of 2016) dated  24.08.2016 : (Calcutta)  
In this case, the Honorable High Court observed that the Ld. ITAT, Kolkata  was of the opinion that the assessing officer had no jurisdiction u/s 153A of  the I.T. Act to reopen the concluded cases when the search & seizure did not  disclose any incriminating material. In taking the aforesaid view, the Ld. ITAT  relied upon the judgments of Delhi High Court in the case of CIT(A) Vs. Kabul  Chawla in ITA No. 707/2014 dated 28.08.2014. The Court also observed  that more or less an identical view has been taken by this Bench in ITA No.  661/2008 in the case of CIT Vs. Veerprabhu Marketing Limited.  Considering the above facts, the Honorable High Court did not admit the  appeal filed by the Department.  
The ‘A’ Bench of the Delhi ITAT, recently in the case of Anurag Dalmia vs. DCIT in  ITA Nos. 5395 & 5396/DEL/2017; Assessment Years: 2006-07 & 2007-08, dt.  15/02/2018, under identical circumstances held as follows:-  
“12. We have heard the rival submissions, perused the relevant material placed on  record and the finding given in the impugned order with respect to legal issue raised  vide ground no.5 by the assessee that the additions made in this year are beyond the  scope of assessment u/s.153A, as no incriminating material was found during the  course of search for the impugned Assessment Year; and the assessment had attained  finality and was not abated in terms of 2nd Proviso to Section 153A. As stated above,  the original return of income was filed in July, 2006 and said return was duly  accepted and processed u/s. 143(1) vide intimation dated 25.05.2007. Since no notice  u/s. 143(2) was issued thereafter or any other proceedings have been commenced to  disturb said return of income, accordingly, it had attained finality much prior to the  date of search which was on 20.01.2012. Hence in terms of 2nd Proviso to Section  153A the assessment for the Assessment Year 2006-07 was not pending and  accordingly, has to be reckoned as unabated assessment. Under the jurisdiction of  Hon’ble Delhi High Court, the law is well settled that in case of unabated assessment,  the additions which can be roped-in, in the assessments framed u/s.153A, would only  be with regard to any incriminating material or evidence unearthed or found during  the course of search. If no incriminating material has been found during the course of  search, then no addition can be made in the assessment years where assessments had  attained finality. The relevant observations and the ratio laid down would be  discussed in the later part of this order.  
  1. Now coming to the ratios laid down by the Hon’ble Jurisdictional High Court, first  of all, in the case of Kabul Chawala (supra), the Hon’ble Court after discussing the  issue threadbare and analysing the various judgments of different High Courts laid  down the following legal proposition in terms of scope of addition which can be made  u/s. 153A(1) which are as under:-  
“37. On a conspectus of Section 153A (1) of the Act, read with the provisos thereto,  and in the light of the law explained in the aforementioned decisions, the legal  position that emerges is as under:  
i. Once a search takes place under Section 132 of the Act, notice under Section 153 A  (1) will have to be mandatorily issued to the person searched requiring him to file  returns for six AYs immediately preceding the previous year relevant to the AY in  which the search takes place.  
ii. Assessments and reassessments pending on the date of the search shall abate. The  total income for such AYs will have to be computed by the AOs as a fresh exercise. 
iii. The AO will exercise normal assessment powers in respect of the six years previous  to the relevant AY in which the search takes place. The AO has the power to assess  and reassess the ‘total income’ of the aforementioned six years in separate  assessment orders for each of the six years. In other words there will be only one  assessment order in respect of each of the six AYs “in which both the disclosed and the  undisclosed income would be brought to tax”.  
iv. Although Section 153 A does not say that additions should be strictly made on the  basis of evidence found in the course of the search, or other post-search material or  information available with the AO which can be related to the evidence found, it does  not mean that the assessment “can be arbitrary or made without any relevance or  nexus with the seized material. Obviously an assessment has to be made under this  Section only on the basis of seized material.”  
v. In absence of any incriminating material, the completed assessment can be  reiterated and the abated assessment or reassessment can be made. The word  ‘assess’ in Section 153 A is relatable to abated proceedings (i.e. those pending on the  date of search) and the word ‘reassess’ to completed assessment proceedings.  
vi. Insofar as pending assessments are concerned, the jurisdiction to make the  original assessment and the assessment under Section 153A merges into one. Only  one assessment shall be made separately for each AY on the basis of the findings of  the search and any other material existing or brought on the record of the AO.  
vii. Completed assessments can be interfered with by the AO while making the  assessment under Section 153 A only on the basis of some incriminating material  unearthed during the course of search or requisition of documents or undisclosed  income or property discovered in the course of search which were not produced or  not already disclosed or made known in the course of original assessment.”  
This judgment of the Hon’ble Delhi High Court has been followed in several  judgments not only by the Hon’ble Delhi High Court but also by other Hon’ble High  Court like, Pr. CIT vs. Somaya Construction Pvt. Ltd. 387 ITR 529 (Guj), CIT vs.  IBC Knowledge Park Pvt. Ltd. 385 ITR 346 (Kar) and CIT vs.  
Gurinder Singh Bawa reported in 386 ITR 483. In the latest judgment the Hon’ble  Delhi High Court in Pr. CIT vs. Meeta Gutgutia, their Lordships reiterated the same  principle after discussing and analyzing catena of decisions including that of Anil  Kumar Bhatia (supra) and Dayawanti Gupta. The Hon’ble HighCourt observed and  held as under:-  
“62. Subsequently, in Principal Commissioner of Income Tax-1 v. Devangi alias Rupa  {supra), another Bench of the Gujarat High Court reiterated the above legal position  following its earlier decision in Principal Commissioner of Income Tax v. Saumya  Construction P. Ltd. {supra) and of this Court in Kabul Chawla (supra). As far as  Karnataka High Court is concerned, it has in CIT v. IBC Knowledge Park P. Ltd.  {supra) followed the decision of this Court in Kabul Chawla (supra) and held that  there had to be incriminating material qua each of the AYs in which additions were  sought to be made pursuant to search and seizure operation. The Calcutta High  Court in CIT-2 v. Salasar Stock Broking Ltd. {supra), too, followed the decision of this  Court in Kabul Chawla (supra). In CIT v. Gurinder Singh Bawa {supra), the Bombay  High Court held that:  
“6…once an assessment has attained finality for a particular year, i.e., it is not  pending then the same cannot be subject to tax in proceedings under section 153A of  the Act. This of course would not apply if incriminating materials are gathered in the course of search or during proceedings under section 153A of the Act which are  contrary to and/or not disclosed during the regular assessment proceedings.”  
  1. Even this Court has in CIT v Mahesh Kumar Gupta {supra) and The Pr.  Commissioner of Income Tax-9 v. Ram Avtar Verma {supra) followed the decision in  Kabul Chawla (supra). The decision of this Court in Pr. Commissioner of Income Tax  v. Kurele Paper Mills P. Ltd. {supra) which was referred to in Kabul Chawla (supra)  has been affirmed by the Supreme Court by the dismissal of the Revenue’s SLP on 7th December, 2015.”  
The department had filed special leave petition before the Hon’ble Apex  Court against the above judgment of the Delhi High court. (Pr CIT V KURULE  PAPER MILLS P. LTD: S.L.P (C) No-34554 of 2015[ 2016] 380ITR (st) 64-Ed)..  
The Hon’ble Apex court dismissed the special leave petition filed by the department.  The relevant Para as mentioned in the ITR is reproduced as under.  
“Their Lordships Madan B.Lokur and S.A.Bobde JJ dismissed the Department’s special  leave petition against the judgment dated July 06,2015 of the Delhi High Court in  I.T.A No 369 of 2015, whereby the High Court held that no substantial question of law  arose since there was a factual finding that no incriminating evidence related to share capital issued was found during the course of search and that theassessing officer was not justified in invoking section 68 of the Act for the  purpose of making additions on account of share capital”
  1. Applying the propositions of law laid down in the above case-law to the  facts of the case on hand, we find that the only addition made is of share  application received u/s 68 of the Act and addition of commission paid allegedly  for the share application money and finally a disallowance u/s 14A of the Act. No  incriminating material has been found during the course of search. The alleged  statements recorded from entry operators have admittedly been retracted and the  Assessing Officer has not based the additions on these statements. Even otherwise,  when copies of the alleged statements recorded by the revenue officials have not  been given to the assessee, no addition can be made based on such evidence which  is not confronted to the assessee. The contents of the statements are also not  brought out in detail in the assessment order. Only a general reference is made  that there were certain statements recorded from various entry operators by the  investigation wing. No addition can be made on such general observations. We also  find that the assessee has not been given an opportunity to cross-examine any of  these persons, based on whose statements, the revenue claims to have made these  additions. The Hon’ble Supreme Court in the case of Kishinchand Chellaram vs. CIT,  125 ITR 713 (SC) had held that opportunity of cross-examination must be provided  to the assessee. The Jurisdictional High Court in the case of CIT Vs Eastern  Commercial Enterprises (1994) 210 ITR 103 (Kol HC) held as follows:-  As a matter of fact, the right to cross-examination a witness adverse to the assessee isan indispensable right and the opportunity of such cross-examination is one of the cornerstones of natural justice.
9.1. Even otherwise, it is not clear as to which of these statements were  recorded during the course of search operation or whether the statements were  recorded during the course of survey operations. It is well settled that a statement  recorded during the course of survey operation cannot be used as an evidence  under the Act.  
  1. Coming to the alleged cash trail, none of the material gathered by the  Assessing Officer by way of bank account copies of various companies supposed to  be a chain was given/confronted to the assessee. The alleged statements were  supposedly recorded from directors of these companies which formed this alleged  chain are also not brought on record. Only a general statement has been made that  the investigation wing had recorded some statements. There is no evidence  whatsoever that cash has been routed from the assessee company or that any cash  was deposited by the assessee company. There is no material whatsoever brought  on record to demonstrate that the alleged cash deposit made in the bank account  of a third party was from the assessee company. No opportunity to cross-examine  any these parties was provided to the assessee.  
 Thus, none of these material gathered by the Assessing Officer can be  categorized as incriminating material found during the course of search or found  during the course of any other operation under the Act. Thus, we hold that the  additions in question are not based on any incriminating material. The ld. CIT(A)  on page 32 & 33 of his order held as follows:-  
“I have considered the findings of the AO in the assessment order, different  case laws was brought on record and appeal orders passed by my  predecessors on this legal issue. I find from the assessment order that  during the search & seizure operations conducted u/s 132 of the IT Act,  1961, incriminating documents/papers were not seized. At least addition  made by AO in the assessment order passed u/s 153A/143(3) are not based  on any incriminating documents/ papers seized during the search  operation. It would also not to be out of context to mention here that in this  case, on the date of search, no assessment for this year was pending.  Therefore, keeping in view the ratio decided by the jurisdictional bench of  Kolkata tribunal in case referred above and the ratio decided by the  Hon’ble Calcutta High Court in the case of Veer Prabhu Marketing Ltd  (supra) in the light of CBDT’s decision of not filing SLP in this case in the  Supreme Court and keeping in view the Apex court’s decision to dismiss SLP  on the similar issue in the case of Pr CIT vs Kurele Paper Mills Pvt Ltd: SLP  (C) No. 34554 of 2015 dt.07.12.2015, I am of this view that in order to  maintain judicial continuity on this issue and respectfully following the  ratio decided by the Hon’ble Calcutta High Court in the case of Veer Prabhu  Marketing Ltd (supra), assessee’s appeal on ground no 1 is allowed and as  such I am not inclined to adjudicate appeal on ground no. 2 on merit.”  
  1. We find not infirmity in the order of the ld. CIT(A) and hence uphold the  same.  
  2. In the result appeal of the revenue is dismissed.  
 Kolkata, the 12th day of December, 2018.  
 Sd/-                                 Sd/-
  [Aby T. Varkey]         [J. Sudhakar Reddy] 
Judicial Member          Accountant Member  
Copy of the order forwarded to:  
1. M/s. Rashmi Float Glass Ltd 
39, Shakespeare Sarani  6th Floor  
Kolkata – 700 001  
  1. Deputy Commissioner of Income Tax, Central Circle-2(2), Kolkata  
  2. CIT(A)-  
  3. CIT- ,  
  4. CIT(DR), Kolkata Benches, Kolkata.  
True copy  
By order  
Assistant Registrar 
 ITAT, Kolkata Benches

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