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2015 (5) TMI 155
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....SPs and their application forms for appointment as TSPs. III. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in not correctly appreciating the nature of the payment made to TSPs as the same is in the nature of commission or brokerage which is evident from the statements recorded during the course of Survey u/s 133A of the Income Tax Act, 1961, on 14/10/2011. IV. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in deleting the interest levied u/s 201(1A) of the Income Tax Act, 1961. 2. During hearing of these appeals, we have heard, Shri Sachidanand Dubey, ld. DR, and Shri R. Muralidhar, ld. counsel for the assessee. The crux of argument on behalf of the Revenue is broadly in support of assessment order by further contending that the ld. First Appellate Authority did not correctly appreciate the nature of payments made to TSPs that there is a principal and agent relationship between the assessee company and TSPs as the same are in the nature of commission or brokerage which is evident from the statements recorded during the course of surv....
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....ditions wherein Standard Operating Procedures have been prescribed by TTL for collecting sample from the patient, dispatch of the sample to TTL, etc. It is pertinent here to note that no single sample of the patient is directly collected by TTL. Each and every sample processed at TTL has to come through proper procedure prescribed and via TSPs. TTL is not 'conducting any direct test on the patients and therefore to TTL the customers are TSPs. The B2B rates for TSPs are fixed and charged from the respective TSPs on the basis of samples processed. To control charging of high prices for tests as compared to the competitors and to safeguard the interest of the general public TTL has defined catalogue rates and the TSPs shall not charge any amount above the catalogue rates. The billing to TSP is done only as per the B2B rates. The TSPs are collecting samples from the patients. The patients may be walk in customers, nursing homes, clinics, Thyrocare 5 Technologies Ltd etc. These patients are the customers of the respective TSPs. The TSPs are required to send the sample in frozen ice pack to TTL, there is SOP prescribed for safeguarding the content and volume of the samples. ....
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....lled. Thyrocare 6 Technologies Ltd Q.10. On perusal of the Affidavit cum Undertaking of Hardyesh Singh Gehlot, Bhiluiara, Rajasthan it is seen that they are authorized to collect samples/specimen on various conditions stipulated by you. The offer letter given by you states that you are authorizing the collection centers/TSP as franchisees of Thyrocare. You are also allotting source code to them to operate as your franchisee. You are also taking a security deposit from them. They are also issuing the reports on your letter head. What is the margin earned by them for collecting the samples. Ans. TSPs are authorized to collect specimens from the patients and they are bound to send the same to laboratory for processing. The security deposit is taken from them against the credit limit given to them against the billing. No benefits passed on to the TSPs for collecting the samples. The TSPs are sending the specimens to TTL for which they are billed as per the agreed B2B rates and against which the payments are received from them. The TSPs are separate business entity operating in distant parts of the county and having no relation with TTL. Since none of the patient is directly re....
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....mentioned below:- FY 2011-2012 39,17,17,840/- FY 201 0-2011 68,72,08,991/ - FY 2009-2010 53,34,20,166/ - FY 2008-2009 43,09,62,682/ - Q.14 A perusal of the trial balance for the current year it is seen that you have given discount rebates amounting to Rs. 81.88 lacs (till date). What is the nature of this discount and whether TDS is deducted there from? Ans. As explained above the TSPs are billed for each and every work order entry sent to TTL for processing of the sample. But for any reason if the tests cannot be performed on the specimen/ sample the billing done is to be reversed by way of giving credit note to the TSP. The reason for the cancellation of tests varies from insufficient quantity of specimen/ sample to sample not packed or processed to TTL properly. Apart from the same if after initial processing of sample if doctor has referred for additional . tests on the same sample though the TSP is billed for' B2B rate rebate is given to the TSP for the same as no sample needs to be collected again from the patient There is no TDS deducted from the said amount as it is towards cancellation of tests or for rebate on additional test....
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.... then accounted in the books of accounts. Q7. What is the relationship between the collection agent/center and your company. Are they allowed to work for any other company engaged in the same type of pathological work? Whether written document such as authorization. or any other document which is being duly singed by the bath the parties allows this freedom to the collection agent/center. Ans. We insist and take in writing that for the tests done by us the Collection Center shall not avail the services from any other Service Providers and we take affidavit cum undertaking to the said effect. The relationship between the company and the collection Center is not that of Franchiser and Franchisee or Principal and agent of employer and employee The collection Centers are treated as our service providers and they are charged at Fixed rates for the tests they have asked for. We can provide the copies of authorization letter, affidavit cum undertaking given by the Incharges of collection Centers . 2.2. The statement of Shri Sundararaju, Executive Directors was also recorded and he was examined on oath. Which is also reproduced hereunder for ready reference and analysis:- 4. St....
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....nd his activities such as management of collection Centers, Collection Staff management, sample collection, amount collection, whether to give credit or not whether to charge Catalogue rates or, lesser than that or more than that all decided by the Collection Center and he is not exclusively working for me and they do collect and process the tests which are not done by us on their own or from some local pathology labs. There is no agency commission, brokerage paid by the company to the Collection Center. There is a written contract between 'the company and the Collection Center and they have to market my services' locally, get the samples and send it to us for processing and we charge them at fixed rates. Therefore, there is no employer-employee relationship or principal agent relationship as they are not doing what we are doing and we are not doing what they are doing. Q 12 It appear and we appreciate that your company charges pathological test rate at lowest stage when compared with the test rates available in the market. Please explain 'what Thyrocare 11 Technologies Ltd are the reasons for such low charges for pathological test of your company? Ans: The business model is ....
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....they have to make business /turnover of Rs. 25,ooo/- minimum and you obtain security of Rs. 50,ooo/- to Rs l,00,oQo/-, documents show the collection agent/center as Thyrocare 12 Technologies Ltd franchise ,give him rights collecting blood sample, hence from the above discussion please show cause why nexus and relationship~ should not be treated as the relationship of Principal and agent and purely acting on behalf of your company and why it should not charged u/s 194 H of the Income Tax Act, 1961 Ans. The Security deposit is collected to provide credit limits to the collection centers and we cannot take risk of credit. The collection centers are authorized to increase the business volumes and therefore, we put various conditions to pressurize the collection center to give more business. I repeat that the collection center cannot be an agent because he is not doing only whatever we say. He is having his own business interest and making profits in his side and he is not bound to listen to me and act only as per our instructions. 2.3. We find that the ld. Assessing Officer in few cases examined the role of service providers to the assessee, therefore, the extract of their statem....
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....ents. We are issuing the receipt for the same. Q. 8. What is the margin you receive for the testing. Do you have any separate rate oth.er than given by Thyrocare? Ans. The margin is varied depending upon bulk business and camps and charitable institutions. Thyrocare Tech. Ltd. has given us service provider rate and catalogue rate. We cannot charge anything above the catalogue rate given by Thyrocare. Q. 9. Apart from margin do you get any other incentive, discounts etc. from Thyrocare for achieving the targets? Ans. Yes. For achieving the target, the company is giving incentives and honours. The company- is also giving incentives and discounts for the particular period and particular time for camp and awareness of the disease. Q. 10 How Thyurocare Tech. Ltd is giving the discounts or incentives to you? Ans. They give discounts and incentives by credit notes. Thyrocare 14 Technologies Ltd Q. 11 Are you using the logo or name of Thyrocare Tech. Ltd. in your receipts or bills? Ans. Yes. We are using logos and company name with' the permission of them. Q. 12 Who is providing the sample kits for testing, software for computer etc? Ans. Cost of the consumabl....
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....t done form any other laboratory or Hospitals without prior Knowledge of the assessee company 9) The TSP is obliged to maintain the security deposit with the company and the amount fixed by the company. 10) On termination/ annulment of the agreement the TSP is obliged to handover back the properties of the company such as report forms, bar coded vials, report envelopes marketing materials literature and pamphlets having companies logo to the company. 11) The TSP is obliged to provide rates details' & client details to the assessee company, on demand, in respect of services rendered by the TSP by virtue of this contract, client details in respect of the service provided. Further, the TSP is bound to provide and produce the bank details, as and when demanded, in respect the charges received 12) Compulsory usage of the software provided by the assessee with a precaution that no misuse in respect of manipulating of reports or any other kind of breach. 7. Considering all of the above facts and modus operendi of the Assessee Company & that of TSPs, a final questionnaire cum show cause letter was issued to the assessee Company and it was required to explain as to why yo....
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....case the tests are done by TTL, TTL reaises periodical invoices on the TSPs and for which in turn the TSP makes the payment to TTL after deducting of applicable taxes. The serum samples sent by the TSPs have to be fit for testing by the Analyzers. At times the samples may not be fit for processing due to various reasons and in such situations) the part of the billed amount is credited back to the Collection Centers as they have to pay back the charges collected from their patient or customer for not giving them the reports. The company pays back part of the billed amount to the collection centers because it is to insist them to send only the samples which are fit for processing and to avoid any human errors that may happen in handling the serum specimen at the end of the Collection Centers. At times, the .sample are sent by Airways or by courier to the company by the collection centers) data requesting for testing is entered and exported by the Collection center) the company bills as per the rate contract on the collection center but the samples could not reach the laboratory due to reasons such as consignment misplaced, heavy rains, etc., and in such cases the amount billed ....
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....care camps in their respective locations. To this it is necessary to quote here that there exists no principal agent relationship between TTL and TSPs, The TSPs do provide services their customers not only from TTL but also from other recognized pathological laboratories like Super Religare Laboratory, Metropolis, Dr. Lal Pathiab, Pathcare etc. to name, some of those. Thus the TSPs act as a collection center for other recognized laboratories as well. It is absolute upto the discretion of the TSPs to send the sample to any of these service providers unless specifically insisted by the beneficiary. The TSPs collects from their patients the rates as fixed by them and no rates are prescribed by TTL for collection from the customers of TSPs. The TSPs are obliged to pay to TTL the billing raised on them periodical as per the B2B rates agreed and accepted irrespective of the collection or non collection from their patient' against their 'invoices or irrespective of providing of free services to any of its customers. The TPS thus are bearing the risk at their end only for collection of their dues, loss of samples during transit for which TTL is never and shall not be accountable at any eve....
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....als, nu8rsing homes etc. TTL also never seeks UC information from any of these customers of these TSPs about the type of rates charged to them, whether there exists any credit facility or not or whether there is any free testing provided by these TSPs to the said customers or to their patients. TTL is charging on the orders raised by the TSPs and entTTLed to receive only the payments against the billing done to TSPs. TTL never claims nor entTTLe to any amount over and above what has been billed to TSPs. Now wince we are not seeking any information about the incomes or receipts of these TSPs, we are unable to review the correctness of their statement but even Otherwise if 80% - 95 % of their turnover constitutes that of the business of TTL, the same might be on account of the following reasons - i) The rates at which these specialized diagnostic services are offered by TTL are cheapest on the earth. In fact no other competitor of TTL can ever match the rates at which these diagnostic services are offered. TTL over the years has pioneered in providing these services at affordable costs, at best of the quality and at shortest possible time. ii) The average Indian consumer pre....
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..... To avoid the menace of the wasted interest medical community operators TTL has to keep a close watch on the charges levied on the patients) at least by its TSPs. Since TTL is having its centralized business operation and daily on and average investigating 15000-17000 samples which are coming from all parts of the country) to ask for information about the amount charged by the TSPs to them is impracticable) impossible and unjustifiable as none of these patients :are customers of TTL. In order to protect the general interest of these patients TTL has therefore restricted its TSPs from charging high prices for the tests offered by it by prescribing catalogue rates for each of the tests which are offered by TTL. The catalogue rates are the rates which are prohibitory only beyond which TSPs are not supposed to charge as per the undertaking given by them to TTL and are not suggestive rates. The purpose of prescribing the catalogue rate is only to regulate the' medical community at least the TSPs of TTL which is at present is not formally regulated by any of the statutory prohibitions and nothing beyond that. TTL never directs nor does order to any of its TSPs to charge as per the c....
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....estricted to do so. d. The TSPs are not allowed to use logos of the company or company name in any of their correspondence. We are hereby quoting below the clause of the affidavits the copy whereof is already submitted to your goodself, signed by these TSPs wherein they have been restricted to do so. 'Clause No. 4. I undertake not to put up a board or poster in any premises with the logo of the company and solicit for direct patient service (dps) without the explicit written approval from the company after duly complying for doing a direct patient service since by this undertaking, I am only permitted to collect specimen from nursing homes, clinics, doctors, laboratories and hospitals (business to business)..' 'Clause No. 6. I say that I am aware that I shall not either directly or indirectly print the logos, brand names, letter heads, receipts, promotional materials and stationery of the company, its services, its associated and its accreditation bodies without their written approval an violation of. the same is 'an offense, which will attract criminal liability as well as civil liability.' 'Clause No. 7 I specifically undertake directly or indirectly not to use the na....
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.... HIV. Secondly the results of most of these diagnostic tests depend upon the condition of the sample and require processing as immediately en as possible. It is pertinent 'here to note that TTL is having only ,one centralized laboratory at Navi Mumbai where samples from all over the country are accumulated through logistics processed and reported. The time of reporting in none of its cases exceeds more that 24 hours. The efficiency in reporting could only be attained through the IT infrastructure in built developed by the organization. The TSPs are assigned login to, requisition' a test in case they wish to avail the same from TTL and to provide the information such as sex, age, referred doctor, clinical history of the patient to be diagnosed (the said details of the patient is insisted as per the prescribed regulatory standards by the laboratory accrediting agency). Thus the login, is provided only to fasten the process of reporting and for nothing else, the options provided to the TSPs is only to do, edit work order entry and search for the status of processing. f TSPs are not obliged to give any information as ,to the charges they have collected from the patients and the s....
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.... their own administrative staff, arranging their own regulatory requirements at local places, paying their own telephone and/ or electricity bills, paying their own administration expenses. None of these expenditures have ever been reimbursed to the TSPS or credited to their ledger. None of these expenditures have ever been debited in the books of TTL ever. Now since we understand the statement of these TSPs are taken on oath, they might have been directed to provide their income tax return copies and your goodself can best able to review the same to understand that these expenses of TSPs are debited to their profit and loss account. The debit of these expenditure to their individual profit and loss account itself proves that these expenses were never reimbursed by anyone else. h. TTL never sets any mandatory targets to any of TSPs. In its own business interest TTL persuade and promote its business through launch of various tests or profiles to its existing menus. TTL charges to TSPs only at an agreed B2B rates. The special rates if any offered to any of the TSPs is purely on the basis of understanding to generate volume. There is no differentiation in the TSPs as per their grad....
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....y of the pathological laboratories from which they avail services. The discretion is exercised by them as per their own independent business interest and they operate as a separate business entity. There exist only a relationship of principal to principal between these collection centers and the pathological laboratories independent business interest and they operate as a separate business entity. There exist only a relationship of principal to principal between these collection centers and the pathological laboratories. b. The catalogue rates are never recommended by TTI and are meant only as determinant to the wasted interest medical community to provide the healthcare services to patients at affordable cost and at best of quality. It is incorrect to generalize the statement of catalogue rates are charges in light of the documents provided with our submission wherein the TSPs have over charged to TSPs and or otherwise even have charges less in some cases. c. As pointed in our submission, some TSPs are charging less as compared to other TSPs. Some TSPs are over charging the patients, some TSPs are charging different rates to the same test to two different patients, some TSPs....
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....L never gives any honours or incentives for achievements of the target and 17L charges only at the B2B rates to the respective TSPs. i. TTI issues receipts to TSPs for the payment made by these TSPs to the company through online website. Further to this it is pertinent here to note some basis points which negatives your contention that the nexus or relationship of principal and age it do exist between TTL & TSPs. i. The TSPs are the businessmen who' are working in respective locality to promote these business. They promote their business through marketing and/or promotional activities and generate the sample workload. Thus the initiation of the business is done by the TSPs and not by TTL The TSPs are generating the workload promoting the business by applying marketing and other tactics to defy the local competition which they do face. They are not the middleman but they are creators of their business and once the workload is generated they are at discretion to send the sample workload to any of the pathological laboratories. They avail the services of pathological laboratories like TTL for reporting on a specialized tests. ii. The affidavit obtained from the TSPs fo....
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.... in light of ,the detailed nature of business activities of the company, submissions made, facts of the case presented during the hearing whenever called for, your goodself would certainly appreciate our contention that there does not exist any such relationship of Principal and Agent between the Company and the collection centers. Further to this since the assessee had not made any payment to the collection centers, the provisions of Section 194H of the Act, could not even otherwise., can be applied in this case. The mode of operation of the business of the Company (TTL) is that it enters into a non-exclusive agreement with the collection centers (TSPs). As per the terms of the agreement these' TSPs can avail the professional services of TTL regarding testing of samples. These center operate as an authorized collection centers and such authorization is required purely because TTL is operating under healthcare business segment and the procedures adopted in dealing with human blood for diagnosis of diseases is closely monitored controlled and regulated by various government agencies These TSPs though have an authorization of TTL may have similar authorization from their concerns ....
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.... charges on account of outstation cheques, dishonor of the cheques, correction in cheques is recovered from them if the bankers charge the same to TTL. Further to this we have been able to produce alongwith the submissions cases wherein some TSPs have charges less as compared to other TSPs. Some TSPs have over charges the patients Some TSPs do charge different rates to the same test to two different patients, some TSP do not charge different rates to the same test to patients and laboratories, clinics. Some TSPs do charge different rates to the same test to patients and laboratories, clinics. Some TSPs do charge different rates to the same test to two different clinics/laboratory/some TSP5 do provide services free of cost. Some TSPs may be charging as per catalogue rates as per your contention, some TSPs may be charging as per catalogue rates of that of the competitors. These rates are thus decided by the collection center at their individual level and as per their discretions. TTL hardly has any saying in this and cannot exercise any control on the same in which case it would be highly unjustifiable to conclude that they must be charging always 100% more than what they are charges....
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....ately 1,00,000 investigation and had to handle approximately on an average 20,000 samples coming from all parts of the country and sent by the collection centers who collects these samples from various laboratories, clinics, walk in patients, doctors, insurance companies, hospitals, government agencies, corporate, charitable institutes, organizations. The information which your goodself wish to have is for the previous financial year which even otherwise cannot ever possible to collect and irrelevant even though collected due to the facts mentioned by us. With reference to our submissions, explanations during the course of the proceedings and during the course of the hearings thereafter, further we wish to support our contention of nonexistent of any principal agent relationship between the TSPs and TTL by quoting the extract of the judgement passed by the Honorable High Court of Delhi in the case of Commissioner of Income Tax Vs. Mother dairy India Limited in the matter of appeal No. 1925 of 2010 and 310,312,313 & 319 of 2011 on 30.01.2011. "it is a well settled preposition that if the property in the goods is transferred and gets vested in the concessionaire at the time of ....
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.... between the MRP and the price which concessionaire pays to the Dairy is his income from business. It cannot be categorized as commission. The loss and gain is of the concessionaire. The Dairy may have fixed the MRP and the price at which they sell the products to the concessionaire but the products are sold and ownership vests and is transferred to the concessionaires. The sale is subject to conditions and stipulations. This by itself does not show and establish principal and agent relationship. The supervision and control required in case of agency is missing. It is relevant that the concessionaires were operating from the booths owned by the Dairy and were also using the equipment and furniture by the Dairy. That fact is not determinative of the relationship between the Dairy and the concessionaires with regards to the sale of the milk and other products. They were licenses of the premises and were permitted the use of the equipment and were licenses of the premises and were permitted the use of the equipment and furniture for the purpose of selling the milk and other products. But so far as the milk and the other products are concerned, these items became their property the ....
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....within the provision of sections of section 194H, the payment received or receivable directly or indirectly, is to be by a person acting on behalf of another person (I) for services rendered, not being profession al services, or (ii) for any services in the course of buying or selling of goods or (iii) in relation to any transaction relating to any asset, valuable article or thing. The element of agency is necessarily to be there in cases of all the services of the transactions contemplated by section (para-8). Where the dealing between the parties is not on a Principal to Agent basis, section 194H does not get attracted (para 9). In the present case, the business working of the assessee is that it signs agreements with the Collection centers, on a nonexclusive basis. It is under these agreements that the collection centers avail the professional services of the assessee regarding testing of samples. These Centers operate as authorized collectors for collecting the samples. Now, these collection centers are working in this manner with various concerns, of which the assessee is one. The collection center is under no obligation to always forward these samples to the assessee. I....
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....ided professional services in the form of medical diagnostic services to the collection centers, was not acceptable. For arriving at his observation, the Commissioner(Appeals) noted that the Assessee provides professional services to the patients and not to the collection centers, which work on behalf of the assessee to collect samples from patients. In this regard; it is seen , as noticed hereinabove, that the assessee had appointed Collection Centers under nonThyrocare 35 Technologies Ltd exclusive agreements to collect samples and to forward them for testing to the assessee. The professional services in the form of medical diagnostic, services, were provided to the collection centers and not to the patients/customers of the centers. The collection centers and the Patients/customers are the ones which have privity of contract inter se. The collection centers deducted tax at source from the payment made to the assessee, for professional services, under section 194J] establishing that the 'collection centers were not the agents of the assessee. Were it otherwise, the entire receipt would have been collected on behalf of the assessee by the collection centers. It has not been shown ....
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.... contend, as done on behalf of the Assessee, that the collection centers are free to charge a rate as desired by them from their patients; that the advertisement clearly specifies the rate 'which is to be charged by the Collection Centers, and that from that, it is clear that the assessee has control over the pricing of the test [para 16] In this regard, the contention on behalf of the' assessee has been that the findings of the Id. Commissioner (Appeals) is incorrect. It has been reiterated that the Collection Centers are free to charge the desired rates from the customers/patients. It has been submitted that though in the advertisement referred to in the Commissioner (Appeals)'s order, the rates have been specified, the collection centers charge the rates fixed by the Collection centers themselves are not at those decided by the assessee; that in certain cases, the collection centers have charged over and above the standard price list provided by the assessee to the Collection Centers [para 17]. In support of aforesaid contention, the documents were placed before the Authorities below, in the impugned order, however, the Commissioner (Appeals) has not taken those into consi....
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....e assessee.[para 22]. Then, the disallowance in terms of section 40(a)(ia) read with section 194H can be made only in respect of expenditure in the nature of commission paid/credited to the account of the recipient, or to any other account in the present case, the assessee receives the amount of the invoice raised ,not of discount from the collection centers. This discount, indisputably, cannot, in any manner, be said to be expenditure incurred by the assessee and so, section 40(a)(ia) is not attracted.[para 23]. In the present case, the collection center has its own premises, infrastructure, staff and necessary licenses/approvals. The collection center acts as an authorized collector for collecting samples and avails the professional seervices of the assessee with respect to testing of samples and issue of necessary reports the assessee raises periodical invoices on the collection centers. The amount collected by the collection centers from the patients is not on account of or on behalf of the assessee. The collection center, in turn makes payment to the assessee after deducting tax at source under section 194) for the professional services rendered. The collection center ha....
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....its clients for collecting samples and delivering test reports. Such, an arrangement has been made by the assessee with an intention to expand its business and' have its pan-India presence. Also, the sharing of testing charges, between the TSPs and the assessee company is so arranged so as to give the same a colour distinguishable from commission or brokerage, as envisaged in Section 194H of the I T Act. 10. As far as the citations relied upon by the assessee company is concerned, the same are distinguishable from the facts of the case of the assessee and as such the same are not relevant to the present proceedings. 11. Now, coming to the quantification of the default u/s 201 of the I.T. Act, in the absence of turnover details of the TSPs, it can reasonably be presumed that the commission amount is equivalent to the total amount of bills raised by the company on the TSPs during the F.Y. 2008-09 and 2009-10 as the TSPs are allowed to charge their clients at 100 % rate of the catalogue rate, at which the TSPs are billed by the company. Thus the total commission, default amount @ 10.3%) and interest u/s 201(1A) @ 1% p.m. for 48 months & 36 months for A.Y. 2009-10 & 2010-11 respe....
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....lowing undisputed facts emerges (a) The TSPs are agents of the assessee company who are allowed to collect necessary charges, from its clients, for collecting samples and delivery test report. (b) The arrangement has been made by the assessee to expand its business throughout the country (c) The sharing of testing charges between the assessee and such TSPs/collectors/aggregators is so arranged to give it colour distinguishable from commission or brokerage as envisaged in section 194H of the Act. 2.6. During the course of hearing, the Ld A.R vehemently contended that the relationship between the assessee and TSPs/collectors/aggregators are that of Principal to Principal basis, yet no document was produced before us to substantiate those contentions. Further, we notice that the test results given by the assessee directly benefit the patients and in that case the TSPs/collectors/aggregators appear to act as mere agents of the assessee in collecting the samples from the patients and giving the results to them. When this factual matrix was put before the ld A.R, he tried to convince the Bench that these activities are akin to the traders of goods, wherein the traders are als....