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Showing 121 to 140 of 1903 Records
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2015 (11) TMI 1786
Admissibility of appeal - utilization of CENVAT credit - input services - Telephone, Courier etc. towards payment of service tax on `agency commission' falling under the category of services namely `insurance auxiliary services' - HELD THAT:- The appeal is admitted on the substantial question of law.
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2015 (11) TMI 1785
Penalty levied u/s. 271(1)(c) - difference between the original return and return made u/s 153A - HELD THAT:- Returned income filed u/s 153A was accepted by the AO and there was no variation in the assessed income vis-à-vis returned income, therefore, following the aforesaid case of the Tribunal [2015 (9) TMI 1660 - ITAT MUMBAI] who is the relative of the assessee, as claimed by AR and considering the decision of Devidas Sukhani vs DCIT [2013 (9) TMI 1076 - ITAT JODHPUR] and in Smt. Pramila D. Asthekar vs ITO [2012 (9) TMI 956 - ITAT PUNE] we find merit in the argument of the assessee and allow the appeal of the assessee on the ground that no addition was made in order u/s 143(3) r.w.s. 153A of the Act for A.Y. 2003-04, 2005-06 and 2006-07. AO is directed to delete the penalty.
A.Y. 2007-08 - original return was filed on 31/03/2008, wherein, the total income was declared at ₹ 15,03,615/-. In the return filed u/s 153A of the Act, the income declared was ₹ 17,21,560/- meaning thereby additional income of ₹ 2,17,945/- was made and consequently addition of ₹ 1,40,000/- was made in order u/s 143(3) r.w.s. 153A. The difference of tax payable comes to ₹ 1,20,482/- between the original return and return made u/s 153A - assessee explained that the return of income filed on 24/08/2009 was accepted by the ld. DCIT while passing order u/s 143(3) of the Act dated 23/12/2009 and only addition retained was to the tune of ₹ 1,40,000/- on account of unsecured loans taken from Vidya Sing on the plea that the assessee did not furnish loan confirmation. Fact remains that the loan was taken by account payee demand draft and reflected in the books of accounts. In view of this fact, it may be a case of upholding quantum but automatically does not justify imposition of penalty u/s 271(1)(c) by taking recourse to Explanation-1 below section 271(1)(c) of the Act, therefore, we direct the AO to delete the penalty for this assessment year also. - Decided in favour of assessee.
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2015 (11) TMI 1784
Levy of penalty u/s. 271(1)(c) - addition on account of purchase of demand drafts and unaccounted cash - income surrendered of the unaccounted income in his income tax return by assessee - HELD THAT:- Assessee himself has surrendered the unaccounted income in his income tax return, because the assessee claimed to have surrendered the amount of ₹ 4,95,000/- to buy peace of mind and to avoid the protracted litigation; Second, when the revenue has statutory power to proceed against the assessee by reopening the assessment of a particular assessment year and then initiating the penalty proceedings, it cannot be allowed to proceed mechanically to invoke the penal provisions. So initiating the penalty proceedings on the basis of void assessment order are not sustainable in the eyes of law. Assessee is well within his right to take this defence of challenging the assessment order even though assessment order has not been challenged, at the time of challenging the penalty order.
In the case entitled ACIT v. Smt. Surinder Kaur [2008 (4) TMI 367 - ITAT LUCKNOW-A] decided the identical issue in the identical circumstances in favour of the assessee, which is applicable to the facts and circumstances of the case. So, when the foundation of addition on unaccounted income of ₹ 4,95,000/-, though not challenged by the assessee, is not sustainable in the eyes of law, the question of imposing penalty qua the said amount, does not arise.
The impugned order passed by Ld. CIT(A) confirming the penalty @ 300%, the amount of ₹ 4,95,000/- is not sustainable in the eyes of law, hence, hereby set aside and the appeal of the assessee is allowed.
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2015 (11) TMI 1783
CENVAT Credit - input - Liquid Absorbent Polymers (CABLOC) through imported sources - it was observed that the said input is of substandard quality - HELD THAT:- On plane reading of Rule 14 of the Cenvat Credit Rules, 2004, it reveals that in the eventuality, when the credit has been taken or utilized wrongly, the said statutory provision can be invoked for recovery of the Cenvat amount - In the present case, the issue is not in dispute that input goods covered under the Bill of Entry have not been received in the factory of the appellant. It is also not in dispute and there is no specific allegation by the Department that the goods have not been utilized for the manufacture of the final product.
Since as a commercial practice and as per the terms of agreement entered into between the appellant and its supplier, the debit note was issued for compensating the appellant towards supply of sub-standard goods, Cenvat benefit cannot be denied to the appellant, in view of the fact no such provisions exist in the Cenvat statute for doing so.
Credit allowed - appeal allowed - decided in favor of appellant.
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2015 (11) TMI 1782
Long-term capital gain - deemed sale of consideration of the property on the basis of DVO's report - determining the fair market value of the assessee's property - action of the AO in adopting the higher sale consideration as per the market value determined for stamp duty purpose for invoking the provision of section 50C - HELD THAT:- Respectfully follow the ratio of the decision of the Hon'ble jurisdictional High Court in the case of Asha Devi Agarwal [1987 (6) TMI 18 - CALCUTTA HIGH COURT] and direct the AO/DVO to compute the fair market value of the let out portion of the assessee's property by taking into consideration the rent actually receivable by the assessee from the tenants.
The assessee has also contended that if the valuation of the let out portion of the assessee's property is done by taking into consideration, the actual rent receivable by the assessee from the tenants, the total fair market value of the property of the assessee as per such revised estimation would be less than the sale consideration of ₹ 1,30,00,000/- shown by the assessee and there would be no case of making addition on account of capital gain. We direct the Assessing Officer to verify this contention of the assessee and if it is found after recomputation of the valuation of the assessee's property that the fair market value is less than the sale consideration shown by the assessee, no addition shall be required to be made on this issue. - Appeal of the assessee is treated as allowed.
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2015 (11) TMI 1781
Penalty u/s 271(1)(c) - income of the assessee is brought to tax under the provisions of 115JB and tax was charged on book profits pursuant to these provisions and the disallowances made by the AO under the normal provisions of the act - HELD THAT:- The appellant had been assessed u/s115JB Act and the various disallowances made in the assessment order did not have any impact on the tax liability of the assessee.The income computed under the normal provisions of the act is less than the book profits of the assessee. We are of the considered opinion that the penalty u/s 271(1)(c) of the act cannot be levied. The case of the assessee is fortified by the decision of the Delhi High Court v/s Nalwa Sons Ltd. [2010 (8) TMI 40 - DELHI HIGH COURT] wherein the income was computed in accordance with normal procedure is less than the income determined special provisions u/s 115JB and thus the income of the assessee was assessed u/s 115JB and not under the normal provisions and the tax was paid accordingly on the income as computed u/s 115JB of the Act.
Once the tax is levied on the income of the assessee u/s 115JB then the case the concealed of income have no role to play and would not lead to tax evasion and therefore, penalty cannot be imposed on the basis of disallowances or additions made under regular provisions. Further in the case of CIT v/s City Tiles [2014 (5) TMI 400 - GUJARAT HIGH COURT] has held that where the addition to the income of the assessee did not change the tax liability of the assessee as the assessment was made u/s115JB of the book profits penalty could not be imposed. The facts of the assessee are squarely covered by the above decisions and we therefore, respectfully following the decisions of the High Court, we delete the penalty imposed u/s 271(1)(C) by allowing the appeal of the assessee.
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2015 (11) TMI 1780
Denial of benefit u/s 80P(2)(i)(a) - HELD THAT:- CIT(A) followed various orders of the Cochin Bench of the Tribunal in the case of M/s Kunnamangalam Cooperative Bank vs ITO [2014 (10) TMI 350 - ITAT COCHIN] and in the case of M/s Pinarayi Service Cooperative Bank Ltd vs ITO [2014 (7) TMI 1176 - ITAT COCHIN] and denied the benefit of deduction u/s 80P - Decided against assessee.
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2015 (11) TMI 1779
Denial of benefit u/s 80P(2)(i)(a) - HELD THAT:- CIT(A) followed various orders of the Cochin Bench of the Tribunal in the case of M/s Kunnamangalam Cooperative Bank vs ITO [2014 (10) TMI 350 - ITAT COCHIN] and in the case of M/s Pinarayi Service Cooperative Bank Ltd vs ITO [2014 (7) TMI 1176 - ITAT COCHIN] and denied the benefit of deduction u/s 80P - Decided against assessee.
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2015 (11) TMI 1778
Denial of benefit u/s 80P(2)(i)(a) - assessee is a cooperative society mainly engaged in banking business - reasoning of the AO for denying the benefit of section 80P deduction was that the assessee is a cooperative bank engaged in the business of banking and in view of insertion of sub.sec (4) to sec. 80P w.e.f 1.4.2007 cooperative banks were not entitled to get the benefit of deduction u/s 80P(2)(i)(a) - HELD THAT:- CIT(A) has followed the various orders of the Cochin Bench of the Tribunal in the cases of M/s Kunnamangalam Co-operative Bank vs Income Tax Officer, ward 2(3) Calicut [2014 (10) TMI 350 - ITAT COCHIN] for the assessment year 2009-10 and M/s Pinarayi Service Co-operative Bank Ltd vs Income tax Officer, ward 2, Kannur [2014 (7) TMI 1176 - ITAT COCHIN] for the AY 2009-10. Since the Cochin Bench of the Tribunal has decided the issue against the assessee on identical set of facts, we deem it appropriate to follow the coordinate Bench order, for the sake of consistency, which is subject matter of appeal u/s 260A before the Hon’ble jurisdictional High Court. Therefore, we uphold the order of the CIT(A) on this issue.Appeal filed by the assessee is dismissed.
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2015 (11) TMI 1777
Revision u/s 263 - Short deduction of TDS - payment paid to Amin Stone towards hire charges of JCB Machine - TDS u/s 194C or 194I - HELD THAT:- AO has requisitioned details of expenses mentioned u/s 40(a)(ia) along with details of deposit of amount of the TDS. Vide letter dated 10-8-2009 vide para 15 the assessee has mentioned that the details were enclosed therewith. The details were enclosed running into four pages submitted in paper book page Nos. 16 to 19.
It cannot be said that the AO had not made necessary enquiries and the details were not furnished. Hence this plank of learned CIT’s argument that necessary enquiry is not made is not sustainable. CIT’s assuming jurisdiction is that the rate of TDS applied is short.
We find that this issue is duly covered in the case of DCIT vs. M/s S.K. Tekriwal [2011 (10) TMI 10 - ITAT, KOLKATA] and DCIT vs. M/s Chandabhoi and Jassobho [2011 (7) TMI 956 - ITAT MUMBAI] wherein as held that section 40(a)(ia) is attracted in case of non deduction of tax and not where there is application of different rates and hence short deduction of tax. These decisions were cited before the learned CIT who has chosen to ignore the same. In our considered opinion, this approach of the learned CIT is not proper. Judicial discipline mandates that we adhere to the doctrine of stare decisis . Since the issue is covered in favour of the assessee, the jurisdiction assumed by the learned CIT is not proper and legal. - Decided in favour of assessee.
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2015 (11) TMI 1776
Penalty levied u/s 271(1)(c) - non recording of satisfaction by AO - effective ground of appeal of the assessee is that in absence of any satisfaction recorded in the assessment order, the penalty has been imposed without any jurisdiction and also, the assessee was not provided sufficient opportunity of being heard - HELD THAT:- AO has failed to record prima-facie satisfaction for initiate penalty proceeding in the assessment order passed under section 144 of the Act, respectfully following the judgement of the jurisdictional High court in the case of Madhushree Gupta [2009 (7) TMI 38 - DELHI HIGH COURT] and decision of the Tribunal in the case of Triveni Engineering and Industries Ltd. [2013 (11) TMI 174 - ITAT DELHI] we hold that in absence of any prima-facie satisfaction recorded by the ld. Assessing Officer for initiation of penalty in the assessment order, the penalty levied by the AO is without any jurisdiction and void ab-initio, therefore, order of the learned Assessing Officer passed under 271(1)(c ) of Act is quashed - Decided in favour of assessee.
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2015 (11) TMI 1775
Capital gain u/s 45 r.w.s. sec. 48 - assessee has transferred the land and received security deposit and that security deposit was again reinvested in making the construction of the malls - colourable device to avoid the tax - HELD THAT:- From the question of law admitted in LAKE PALACE HOTELS AND MOTELS LTD. [2008 (4) TMI 449 - RAJASTHAN HIGH COURT], nowhere it is stated that if the assessee has received any security deposit against the lease rent of security deposit, it is not chargeable to capital gain u/s 45 r.w.s. sec. 48. Therefore, CIT(A) is not justified in relying upon the decision of Hon’ble Rajasthan High Court. We therefore are of the view that the issue in controversy is covered by the Jodhpur ITAT Bench in LAKE PALACE HOTELS & MOTELS LTD. [2004 (3) TMI 771 - ITAT JODHPUR] but it is not decided by Hon’ble Rajasthan High Court.
We find that in the instant case, assessee has transferred the land and received security deposit and that security deposit was again reinvested in making the construction of the malls. We find that the said transaction is not a sale transaction. The Assessing Officer has held that the transaction entered into by the assessee with Kalani Bros and Padma Homes are colourable device on the ground that the lease agreement is stage managed affairs of the assessee. No interest was charged on the security deposit. AO has also referred this matter to District Registrar and he was of the view that it is a colourable device. As we have already held that transaction is not avoiding the tax and assessee has made registered agreement, therefore, unless and until, Assessing Officer proves that assessee has made this colourable device to avoid the tax.
We find that in the instant case, during the course of hearing, AR has specifically submitted before us that the same transaction is already over and assessee has already transferred its land to some other person, therefore, this transaction is already over and when this transaction is already over, as per the decision of Jodhpur Bench (supra), the assessee is not liable for capital gain and CIT(A) is justified in his action. During the course of hearing, the ld. DR could not bring any contrary decision against the Jodhpur Bench. We do not find any contrary decision, therefore, we endorse the action of the CIT(A). We state that the CIT(A) has without looking to the facts of the Rajasthan High Court judgment relied the judgment. We find that this judgment of Hon’ble Rajasthan High Court is not applicable to the facts of the assessee’s case. We, therefore, reverse the finding of the ld. CIT(A) but we agree on the decision of CIT(A) on the basis of Jodhpur ITAT decision.
Assessment u/s 153A - proof of incrementing material found in search - HELD THAT:- It is a settled legal position that once a search and seizure action has taken place u/s 132 of the Act or a requisition has been made u/s 132A, the provisions of section 153A trigged and Assessing Officer is bound to issue notice u/s 153A of the Act. Once notices are issued u/s 153A then assessee is legally obliged to file return of income for six years. The assessment and reassessment for six years shall be finalised by the AO.
It is also held by various Courts that once notice u/s 153A issued, then assessment for six years shall be at large both for AO and assessee have no warrant of law. It has been also held that in the assessment years where assessments have been abated in terms of second proviso to section 153A then Assessing Officer acts under original jurisdiction and one assessment is made for total income including the addition made on the basis of seized material. But where there is no abatement of assessments and assessments were completed on the date of search then addition can be made only on the basis of incriminating documents or undisclosed assets, etc. In these cases there was no incriminating document found and seized. No assessment proceedings were abated in these assessee.
Thus assessments for these assessment years were completed on the date of search. The assessments were completed u/s 143(3) read with section 153A/153C of the Act after the search. There was no abatement of any proceedings in these cases for these assessment years in terms of second proviso to section 153A of the Act.
There is no seized material belonging to the assessee which was found and seized in relation to additions made. In a recent decision, Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] has held that completed assessments can be interfered with by the Assessing Officer while making assessment u/s 153A of the Act, 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 was not produced or not already disclosed or made known in the course of original assessment. In all these cases no assessments were pending on the date of search for these assessment years. No assessments were abated in terms of second proviso to section 153A of the Act.
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2015 (11) TMI 1774
The Supreme Court of India issued an order in 2015 (11) TMI 1774 - SC. Respondent No.1 filed a counter affidavit, but Respondent Nos. 2, 3, 5, and 7 failed to do so within the stipulated period. Respondent Nos. 4 and 6 have been served notice but did not appear. The matter will be listed before the Hon'ble Court for further action.
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2015 (11) TMI 1773
Assessment u/s 153A - addition u/s 68 - advance received from customers towards advances for sale of shops/flats - AO completed the assessment u/s. 143(3) - search action u/s. 132 - proof of incriminating material found in search - HELD THAT:- Admittedly, in the instant case, the assessee during the course of original assessment proceedings has filed the details of advance received from customers towards advances for sale of shops/flats. The assessment order passed by the AO u/s. 153A r.w.s.143(3) does not speak of any incriminating material that was found during the course of search.
Only the ADIT had conducted certain post search enquiries in respect of 4 persons out of the 13 persons mentioned by the AO according to which the persons are having income from agriculture only. Despite having bank accounts they have paid amount in cash and their credit worthiness is doubtful. In view of the above and in absence of any plausible evidence filed by the assessee during assessment proceedings to substantiate the genuineness of the transactions and credit worthiness of the persons who had given huge advances, the AO made addition of ₹ 2.30 crores u/s. 68.
CIT(A) allowed relief of only ₹ 7 lakhs and sustained addition of ₹ 2,23,00,000/-. It is the submission of the assessee that since no incriminating material was found during the course of search, therefore, in view of the decision of Continental Warehousing Corporation . [2015 (5) TMI 656 - BOMBAY HIGH COURT]and Murali Agro Products Ltd. [2010 (10) TMI 1052 - BOMBAY HIGH COURT] AO could not have made any addition u/s. 68 of the I.T. Act in respect of advance from customers towards sale of flats/shops.
Although the decision of the Hon'ble Bombay High Court in the case of Murali Agro Products Ltd. (Supra) passed on 29-10-2010 was available at the time of completion of the assessment u/s. 143(3) r.w.s. 153A (passed on 31-12-2010) the same was neither brought to the notice of the AO nor before the CIT(A) for which the AO/CIT(A) have not considered the same. Similarly, the decision in the case of Continental Warehousing Corporation (Supra) was passed after the order of the CIT(A). Thus, the lower authorities have no occasion to consider the above 2 decisions and apply their mind which are being relied on by the Ld. Counsel for the assessee before us for the first time to the proposition that the AO could not have made any addition u/s. 68 in absence of any incriminating material found during the course of search. Under the aforementioned circumstances, we deem it proper to restore the issue to the file of the AO with a direction to decide the issue afresh - Additional ground by the assessee is accordingly allowed for statistical purposes.
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2015 (11) TMI 1772
Scheme of amalgamation - directions of this court to dispense with the requirement of convening the meetings of their equity shareholders, secured and unsecured creditors to consider and approve, with or without modification - HELD THAT:- The Board of Directors of the transferor and transferee companies in their separate meetings held on 14th February, 2015 have unanimously approved the proposed Scheme of Amalgamation. Copies of the Resolutions passed at the meetings of the Board of Directors of the transferor and transferee companies have been placed on record.
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2015 (11) TMI 1771
Computing deduction u/s 80IA in respect of the captive power generating unit - rate at which power was supplied by the Haryana State Electricity Board ('HSEB') to various industrial units situated in the area, constituted market price of power - HELD THAT:- Substantial Question of law admitted.
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2015 (11) TMI 1770
TDS u/s 194C OR 192 - payments made to ITD Cementation India Ltd, toward the salary of their employee working for the joint venture - HELD THAT:- Judgment of assessee own case in respect of AY 2008-09 the issues/grounds raised in the present appeal and the assesses appeal in respect of AY 2008-09 are identical and respectfully following the judgment of coordinate bench in respect of the assessee, issue decided in favour of assessee
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2015 (11) TMI 1769
Reopening of assessment - capital gains arising out of the joint development agreement as assessee entered with Vaswani Estates Developers P. Ltd. - non-furnishing of reasons to assessee for reopning of assessment - Held that:- AO had not complied with the law laid down by the Hon’ble Apex Court in the case of GKN Driveshafts (India) Ltd (2002 (11) TMI 7 - SUPREME COURT). AO had not given copy of the reasons for which notice u/s.148 of the Act was issued. In our opinion awareness of the assessee as to the reason why notice u/s.148 of the Act was issued may not be sufficient to satisfy the requirement in this regard.
No doubt Ld. DR has relied on a judgment of Hon’ble Madras High Court in the case of CIT v. C. Palaniappan [2011 (3) TMI 589 - MADRAS HIGH COURT] where it was held that non-furnishing of reasons was only a supervening illegality and would not render the proceedings void by itself. However, we find that Hon’ble Delhi High Court in the case of Samcor Glass Ltd [2015 (12) TMI 773 - DELHI HIGH COURT] and Trend Electronics [2015 (9) TMI 1119 - BOMBAY HIGH COURT] had held that jurisdictional issues should be strictly complied with by the authorities concerned and no question of knowledge being attributed on the basis of implication can arise.
Once a jurisdictional High Court decision is there on a particular legal issue, this Tribunal being an inferior forum to jurisdictional High Court, is bound to follow the said judgment. Accordingly we are constrained to quash the assessment done on the assessee for the impugned assessment year. Appeal of the assessee having been allowed on legal ground itself, other grounds relating to the merits of the issue are not dealt with. Assessee’s appeal is allowed.
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2015 (11) TMI 1768
EXIM - 100% EOU - exemption under Notification No. 2/95-CE - Held that:- The issue involved in these appeals is squarely covered against the Revenue by the judgment of this Court in the case of M/s. Virlon Textile Mills Ltd. v. Commissioner of Central Excise, Bombay [2007 (4) TMI 6 - SUPREME COURT OF INDIA], where the benefit of exemption was allowed - appeal dismissed - decided against Revenue.
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2015 (11) TMI 1767
Exemption u/s 11 - whether the corpus donation received by the assessee is exempted u/s 11(1)(d) of the Act or not ? - registration u/s 12AA mandation pre-condition for grant of exemption u/s 11 and 12 - Held that:- Admittedly, the trust was not registered u/s 12AA of the Act. This Tribunal is of the considered opinion that registration u/s 12AA is a mandatory pre-condition for grant of exemption u/s 11 and 12 of the Act.
As carefully gone through the order of this Tribunal in case of Pentafour Software Employees’ Welfare Foundation vs ACIT (2008 (7) TMI 984 - ITAT CHENNAI). This Tribunal has not considered the mandatory requirement of registration u/s 12AA for claiming exemption u/s 11. Under the scheme of the Income-tax Act, 1961, donations are considered as income unless the same were received from blood relatives. In the case before us, admittedly the assessee is not registered u/s 12AA of the Act. Therefore, sec. 11 of the Act is not applicable. There is no provision in the Income-tax Act, 1961 for exempting the donation received by the assessee in case it is not registered u/s 12AA of the Act. Therefore, the order of this Tribunal in M/s Pentafour Software Employees Welfare Foundation is not applicable. - decided against assessee.
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