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Showing 121 to 140 of 1428 Records
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2015 (7) TMI 1315 - ITAT AHMEDABAD
Reopening of assessment u/s. 148 - assessee has set off the losses arising in Future & Option business against the profit earned in share trading activity - contention of the assessee is that he had not transacted Gaur Seeds F&O which is wrongly mentioned by the AO - HELD THAT:- There is no whisper in the assessment order passed u/s.143(3) (original assessment proceedings) of the above referred Annexure. This goes to demonstrate that the AO had not examined this aspect.
Therefore, there is no infirmity into re-opening of the assessment when the assessee himself has shown to have transacted in Guar future. Moreover, there is no material placed on record suggesting that the auditor clarified it to be typographical error, coupled with the fact that CIT(A) had given a finding on fact that no evidence is furnished in support of the transportation and storage of the Guar seeds. The assessee has stated that the delivery of Guar seeds were taken, however, no evidence is furnished to rebut the finding of CIT(A). In the light of above discussion Ground Nos.1 & 2 of the Assessee’s appeal are dismissed.
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2015 (7) TMI 1314 - ITAT MUMBAI
Fees for Technical Service u/s 44D V/S u/s 44BB as services or facilities in the prospecting for or extracting or production of mineral oils - transfer of technical knowledge and skill - payment made by the assesses ‘ONGC’ to foreign company M/s Gaffney Cline & Associates, UK for audit of reserves for Mumbai High field - test of “Make Available” - HELD THAT:- The scope of work of the contract included audit of ONGC’s current Proved, Proved +Probable and Proved +Probable + Possible ultimate Reserves and Reserves of oil condensate, associated gas and free gas. The above services were thus related to the activity of prospecting for or exploration of mineral oils, which are covered under the provisions of section 44 BB of the Act.
Moreover, the test of “Make Available” is not satisfied as the assessee could not derive an enduring benefit and utilize the knowledge or know how on his own in future without the aid of the service provider for carrying out identical activities. There is no transfer of technical knowledge and skill enabling the assessee to perform similar activities in future at its own. Hence, the payment cannot be taxed as fees for technical services even otherwise in the light of the proposition of law laid down in the case of “De beers India Minerals Pvt. Ltd.” [2012 (5) TMI 191 - KARNATAKA HIGH COURT]. - decided against revenue
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2015 (7) TMI 1313 - CALCUTTA HIGH COURT
Offence under PMLA - Application for bail under Section 439 of the Code of Criminal Procedure - HELD THAT:- Considered the statements of the Assistant General Manager of RBI, Kolkata, Seizure List, statements of some Directors of Rose Valley, statements of some office bearers of Rose Valley, statements of some debenture trustees of Rose Valley, statements of some debenture holders of Rose Valley, statements of AGM of Accounts of Rose Valley and statements of some Regional Managers of Rose Valley for formation of opinion whether the petitioner is involved in the offence of money laundering as alleged by the opposite party.
On consideration of the above statements and other materials collected during investigation I cannot persuade myself to hold that no offence of money laundering is made out against the petitioner. The question whether the opposite party is entitled to file supplementary petition of complaint to prosecute the petitioner under Section 4 of the P.M.L. Act remains open for decision by the trial court.
By making a pragmatic approach to the provision of Section 45(1) of the P.M.L. Act and on consideration of the antecedents of the petitioner in collection of money from open market for issuing secured debenture in violation of the guidelines of SEBI and on further consideration of the manner of keeping accounts of the Rose Valley, unable to hold that the petitioner is not likely to commit any offence while on bail. As a result, cannot persuade myself to grant bail to the petitioner at this stage. So, prayer for bail is rejected. The application is dismissed.
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2015 (7) TMI 1312 - ITAT CHANDIGARH
Deduction u/s 80IC - claim exceeding ten assessment years - Held that:- Section 80IC sub section 6 reads as under: - "Notwithstanding anything contained in this Act, no deduction shall be allowed to any undertaking or enterprise under this section, where the total period of deduction inclusive of the period of deduction under this section, or under the second proviso to sub-section (4) of section 80-IB or under section 10C, as the case may be, exceeds ten assessment years."
It is to be noticed that this sub section starts with "non obstante" clause which means that this section is applicable to all kinds of states wherever section 80IC is applicable. The period of deduction has been clearly restricted to period of ten years inclusive of the deduction claimed under section 80IB. Since assessee has already claimed deduction under section 80IB for ten years therefore assessee is not entitled for the deduction in the present year. - Decided against assessee.
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2015 (7) TMI 1311 - ITAT DELHI
Non-representation on the date of hearing - when the appeal was called out, no one was present on behalf of the assessee - Held that:- Till the end of the Board neither the assessee was present nor any request for adjournment had been placed before us. Since in the third round also the position remained the same.
As considered that the assessee may not be serious in pursuing the appeal filed. It is further seen that the notice issued on 15.06.2015 sent to the assessee by speed post at the address indicated in Column No-10 in the memo of appeal filed by the assessee returned unserved with comment “left without address”. Accordingly in the absence of any representation on the part of the assessee seeking time etc. right till the time of the hearing and in fact till the passing of this order, the appeal is dismissed in limine. Support is drawn from the order of the Tribunal in Commissioner of Income-Tax vs. Multi Plan India (P) Ltd.[1991 (5) TMI 120 - ITAT DELHI-D] and Estate of Late Tukojirao Holkar vs. CWT [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT]. - Decided against assessee
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2015 (7) TMI 1310 - SUPREME COURT
Grant of the decree of partition of her share in the ‘B’ suit schedule property - self acquired property of the deceased-first defendant - Whether the property bearing No.45, Sant Nagar, East of Kailash, New Delhi, has been constructed out of joint family funds or out of funds received by the first defendant from late Shri R.D. Singh, the husband of the plaintiff? - Held that:- The First Appellate Court was not right in making an observation in the impugned judgment that the plaintiff is only entitled for the refund of the said amount from the deceased first defendant even though there is substantive and positive evidence on record to the effect that the amount sent by the deceased husband of the plaintiff was utilised by the deceased first defendant for the purpose of construction of the building upon the suit schedule ‘B’ property.
The physical possession of the entire suit schedule ‘B’ property could not have been given to the second defendant in the light of the undisputed fact that the physical possession of the second floor of the schedule ‘B’ property is with the plaintiff. Further, the plaintiff is in the possession of the second floor in her independent right of her husband’s share after they separated from the family. Therefore, the alleged gift deed executed by the deceased-first defendant in favour of the second defendant during the pendency of the proceedings with respect to the suit schedule ‘B’ property is not legally correct as it is the joint family property and even otherwise the same cannot be acted upon by the parties - the courts below have failed to exercise their jurisdiction and power properly, thereby causing a grave miscarriage of justice to the rights of the plaintiff upon the ‘B’ schedule property.
The plaintiff must succeed for one more alternate reason viz. that the deceased-first defendant died during the pendency of the proceedings and therefore, Section 8 of the Hindu Succession Act, 1956, will come into operation in respect of the suit schedule ‘B’ property even if it is considered that the said property is a self acquired property of the deceased-first defendant.
The said property of the deceased-first defendant would devolve upon the deceased husband of the plaintiff along with the second defendant and the other daughters of the deceased-first defendant as they are the joint owners of the said property by virtue of being Class I legal heirs of the deceased-first defendant as per the schedule to the Hindu Succession Act, 1956, upon the death of the first defendant - the plaintiff is entitled for 1/4th share in the suit schedule “B” property.
The impugned judgments and decree passed by the trial court and the First Appellate Court are hereby set aside, in so far as ‘B’ schedule property is concerned - civil appeal allowed.
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2015 (7) TMI 1309 - ITAT AGRA
Undisclosed income surrendered - addition on account of stock - addition was made solely and wholly on the basis of statement recorded on 16.10.2006 and the surrender made there-under by the assessee - Held that:- CIT(A) has recorded a finding that inventory of stock prepared on the date of survey on 05.10.2006 does not mention the location in which the said raw material has been found and inventorised when the same raw material has already been inventorised at page No. 2 of the list, as reproduced by the CIT(A).
CIT(A) has recorded that on 05.10.2007, after receiving copy of stock statement and valuation of stock as on 05.09.2007, the assessee has retracted from the statement made on account of stock vide letter dated 05.10.2007. The account books of the assessee could not be relied upon as the same do not reflect correct state of affairs of the assessee. However, the addition made of ₹ 24,09,475/- was on higher side due to the facts narrated above and the ends of justice shall met if the addition is restricted to ₹ 10,00,000/- by way of estimate and preponderance of probabilities as against ₹ 24,09,475/- made by the AO on account of stock variation found at the time of survey. Ground No. 1 of appeal of the Revenue is partly allowed.
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2015 (7) TMI 1308 - ITAT MUMBAI
Addition made on account of provision for mark to market loss of the derivative transactions - Held that:- As decided in assessee's own case ITAT had been pleased to allow the appeal against disallowance of provisions for loss on mark to market basis in respect of trading in derivatives which included equity index and stock futures observing that the provisions reflected in substance is the loss arising on account of valuation of closing stock
Disallowance made u/s. 14A r.w. Rule 8D - Held that:- It is an undisputed fact that assessee’s own funds are more than the investment. Therefore, the decision of the Hon’ble High Court of Bombay in the case of Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] and HDFC Bank (2014 (8) TMI 119 - BOMBAY HIGH COURT) squarely apply. To this extent, no disallowance can be made.
In A.Y. 2008-09, the Tribunal has accepted the suo moto disallowance @ 5% of dividend income. We find that in this year, the assessee has given a complete break-up of proportionate expenses allocated by it which is exhibited at page-71 of the Paper book. Except for this, all other facts are identical to the facts of assessment year 2008- 09. Since assessee has given a detailed break-up as mentioned hereinabove, we direct the AO to restrict the disallowance to ₹ 9,49,475/- as made by the assessee.
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2015 (7) TMI 1307 - DELHI HIGH COURT
Prohibition on Benami transactions - exception contained in Section 4(3)(b) of the Benami Act - fiduciary relationship with respondent or not - time limitation - Whether the claim in the suit is barred by the provisions of Benami Transactions Prohibition Act, 1988?
Held that:- Since Section 7 of the Benami Act repealed certain provisions, hence, the relationship of trust comprised in such provisions necessarily would be excluded from the sweep of the expression trust/fiduciary relationship found in Section 4(3)(b) of the Benami Act because what is excluded by Section 7 of the Benami Act cannot be got included in Section 4(3)(b) of the Benami Act.
Since the plaintiff in the plaint himself states that the property was purchased as a benami property in the name of the father, late Sh. Jai Gopal Gugnani, merely and although the plaintiff has used the expressions fiduciary relationship and trustee, yet these expressions of fiduciary relationship and trustee are not those expressions which will cause the transaction to fall under the exception of Section 4(3)(b) of the Benami Act, but these expressions are those expressions which fall under Sections 81, 82, and 94 of the Trusts Act and which have been repealed by Section 7 of the Benami Act - the suit is barred by the provision of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988.
The suit is dismissed.
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2015 (7) TMI 1306 - PUNJAB AND HARYANA HIGH COURT
Refund of TDS - reopening of assessment - process of issue of refund has been initiated on receipt of TDS verification from the Land Acquisition Officer - rectification order under Section 154 - Held that:- The right to refund, therefore, in each of the matters is established. The respondents, however, have initiated proceedings for reassessment under Sections 147 and 148 of the Act in respect of the same assessment year. The respondents are entitled to set off the refund against any amounts that may be payable pursuant to these proceedings. It will, however, be unfair to withhold the refund indefinitely.
The ends of justice would be served by directing the respondents to complete reassessment proceedings by 31.08.2015. In the event of there remaining any refund payable to the petitioners, the same be shall be paid within four weeks of the conclusion of the reassessment proceedings. It is clarified that all other issues including regarding the quantum of interest are kept open.
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2015 (7) TMI 1305 - ITAT CHANDIGARH
Reopening of the case u/s 148 - Undisclosed investment - non independent application of mind by the Assessing Officer - Held that:- Investigation Wing provided the information that during the financial year 2001-02 relevant to assessment year 2002-03, the assessee had received bogus accommodation entries - details were also submitted to the Assessing Officer. In my opinion, on the basis of above information, the AO was justified in forming a prima facie opinion or belief that income has escaped assessment in the hands of the assessee. The material before the Assessing Officer was relevant and afforded a live link or nexus to the formation of the belief. The information, so received by the AO, was credible and not a mere gossip. - Decided against assessee
Addition u/s 68 - genuineness of the transactions and the creditworthiness of the creditors - Held that:- Neither any bank account statements of S/Shri Vipin Kumar and Ashok Kumar Vindal, nor any proof regarding identity of these persons was furnished. The assessee also failed to produce his bank account statement for assessment year 2002-03. Also in agreement with this observation of the learned CIT (Appeals) that although the assessee has submitted certain documents (not relevant to assessment year 2002-03), he has not been able to establish the genuineness of the transactions and creditworthiness of the creditors. CIT (Appeals) has correctly observed that by merely claiming that the credits were unsecured loans and by submitting confirmations from so called creditors, the genuineness of the transactions cannot be proved. In the instant case, the assessee has miserably failed to prove the creditworthiness of the alleged creditors as well as the genuineness of the transactions. There is no evidence on record to prove the above ingredients of cash credits - decided against assessee.
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2015 (7) TMI 1304 - ITAT MUMBAI
Correct head of income - characterization of income - bogus LTCG - Income on sale and purchase of shares - income assessable under the head income from other sources OR long term capital gain - Held that:- In the case of the assessee as well as in the case of Jagdish H. Shah(2012 (9) TMI 1154 - ITAT MUMBAI) the shares were purchased from the same broker namely DPS Shares and Securities Pvt. Ltd.
AO carried out a verification exercise which involved recording of statement of one Shri Raj Kumar Masalia, Principal Officer of DPS Shares & Securities Ltd.; similar action was taken in the case of Jagdish H. Shah (supra) also. It is quite clear that the stand of the Revenue as well as the assessee in the present case is on similar footing to their respective stands in the case of Jagdish H. Shah (supra).
Having regard to the aforesaid similarities, which are not controverted by the Revenue, we deem it fit and proper to rely upon the reasoning taken by the Co-ordinate Bench in the case of Jagdish H. Shah(supra) and hold that the income tax authorities have erred in treating the sale consideration on the sale of shares of Robinson Worldwide Trade Ltd. as an income from undisclosed sources - decided in favour of assessee.
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2015 (7) TMI 1303 - ITAT MUMBAI
TDS u/s 194C - assessee’s receipts were below audit limit u/s 44AB - tds liability - Held that:- Because the provisions of section 194C as it stood prior to 01.06.2008 provided that in case of individual or HUF whose total sales, gross receipts or turnover from business or profession does not exist monetary limits specified u/s 44AB during the financial year immediately preceding the financial year in which such sums is credited or paid then he has no liability to deduct income tax u/s 194C(2). It is has not been rebutted that assessee’s turnover in the immediately preceding financial year had not exceeded monetary limit specified u/s 44AB and this fact also gets strengthen by the order of the Tribunal as relied by the Ld. Counsel. Accordingly, the assessee was not liable to deduct TDS, therefore, no disallowance u/s 40(a)(ia) can be made. Thus Ground no. 1, as raised by the assessee is allowed.
Ad-hoc disallowance on account of salary and various other expenses - Held that:- We find that disallowances has been made on ad-hoc basis whereby 50% of the salary has been disallowed. The assessee in the paper book has filed details of employees giving their designations and addresses to whom the salary was paid during the year. If such details are on record which has not been rebutted, then no ad-hoc disallowance on account of salary can be made. Accordingly, the disallowance under the head salary stands deleted.
Disallowance of depreciation - Held that:- Disallowance made by the Assessing Officer and confirmed by the CIT(A) are slightly excessive looking to the nature of expenses, therefore, we restrict the disallowance at 10%. The assessee will get part relief on this score. 10. Regarding disallowance on depreciation on computers, we find that the same was made on the ground that computers were put to use after September, 2006 therefore, disallowance have been made for half of the year instead and full year as claimed by the assessee. This finding of fact as recorded by CIT(A) and AO has not been rebutted because, therefore, such a finding of the CIT(A) confirming the said disallowance is affirmed.
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2015 (7) TMI 1302 - DELHI HIGH COURT
Disallowance of deduction u/s 80 IB(10) - proportionate deduction - out of 122 dwelling units constructed by the Respondent Assessee in one block 50 units exceeded the maximum limit and in the other project 26 units violated the maximum limit - claim of the assessee on “pro rata” basis - Held that:- The interpretation placed on sub-clause (c) of clause (10) by the CIT (A) and affirmed by the ITAT is plausible. The provision is capable of being construed in a manner that is beneficial to the Assessee by allowing the deduction pro rata the number of residential units that have complied with the requirement in Section 80 1B(10)(c) viz., that the maximum build up area should not exceed 1000 sq.ft. It is not in dispute that as far as the units in the two blocks constructed by the Assessee all other requirements of Section 80 IB (10) (c) stand fulfilled. No substantial question of law
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2015 (7) TMI 1301 - ITAT CHANDIGARH
Levy of penalty u/s 272A(2)(k) - person responsible’ had failed to file quarterly TDS returns in Form No.24Q, 26Q and 27Q for the 4t h quarter by due date - reasonable cause for failure to comply with the provisions of law - Held that:- TDS returns were not filed within time prescribed by law. Section 273B of the Act provides exception to the rule if the assessee is able to prove to the satisfaction of the authorities below that there was a reasonable cause for failure to comply with the provisions of law.
The assessee has not been able to prove if there was any reasonable cause for failure to comply with the provisions of law. The assessee merely explained that since the consultant was traveling out of country, the TDS returns could not be filed on time. However, it is not specified at what time the consultant was traveling out of country and why no other arrangement was made and whatever plea was taken was not supported by any evidence, would clearly reveal that the assessee has no reasonable cause for failure to comply with the provisions of law - Decided against assessee
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2015 (7) TMI 1300 - BOMBAY HIGH COURT
The appeal is admitted on the following substantial question of law: Whether the penalty under Section 77 of the Finance Act, 1994 could have been imposed when the Government of India, Ministry of Finance had a doubt till the issuance of Circular, dated 29/10/2006 whether service tax was leviable on the services of site formation?
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2015 (7) TMI 1299 - ITAT MUMBAI
Capital gain computed on the amount which the assessee actually received - addition on the basis of deeming provision of section 50C - Held that:- The assessee sold/given development right of the same property which was owned by it. The assessee was unable to sale more than the land which was not owned by the assessee. The assessee can be taxed only on the gain which is oozing out from the sale consideration, thus, no adverse inference can be drawn while invoking the provision of section 50C of the Act.
No evidence has been produced by the Revenue at any stage that the assessee actually received the value which was adopted by the stamp valuation authority. Even the development agreement clearly mention the area and the assessee is not the owner of the TDR, thus, cannot be saddled with the value adopted by the stamp duty purposes as the assessee is only the owner of 3872 sq. mts. for which he received the consideration of ₹ 2,51,00,000/-, thus, the capital gain has to be computed on the amount which the assessee actually received, consequently, we are in agreement with the finding of the ld. Commissioner of Income Tax (Appeals) that on the basis of deeming provision of section 50C, no addition can be made. We affirm the stand of the ld. Commissioner of Income Tax (Appeals), thus, appeal of the Revenue is dismissed.
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2015 (7) TMI 1298 - ITAT NAGPUR
Assessment u/s 153A - disallowance of sales tax incentive - capital receipt or revenue receipt - Held that:- Assessee was justified in its claim that the sales-tax incentives received in terms of the Government scheme constituted the “capital receipt” and therefore, not to be taken into account in computation of total income. Since a view has been taken in respect of this very scheme by the respected Special Bench then we have no reason to take any other view but to follow the view already expressed in this precedent.
In respect of subsidy in the shape of entertainment duty in the case of Chaphalkar Brothers [2013 (6) TMI 73 - BOMBAY HIGH COURT] has opined that the object of the subsidy was to promote construction of multiplex theatre complexes. Such receipt of subsidy was held on “capital account”. If object of subsidy scheme was to enable the assessee to run business more profitability, then receipt was to be considered as on “revenue account”. But if object of assistance under subsidy scheme was to enable the assessee to set up new unit, then receipt of subsidy is to be considered on “capital account”. In the said case it was found by the Hon’ble Bombay High Court that under the incentive package offered by the State Government was for the purpose of setting up a new industry in the State. The assessee had applied for such special capital incentive from SICOM.
We are of the view that considering the scheme of the State Government, the assessee is entitled for the exemption of the sales-tax incentive being a capital receipt in the hands of the assessee and that the claim being lawful in nature ought to have been entertained by the Assessing Officer while completing the assessment under section 153A of I.T. Act. - Decided in favour of the assessee.
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2015 (7) TMI 1297 - ALLAHABAD HIGH COURT
Whether under the facts and in the circumstances of the case, the Commercial Tax Tribunal was legally justified in deleting, the levy of penalty u/s 34(8) of the Act by the assessing authority?
Held that:- The Tribunal has examined the matter at length and has recorded finding that the entire tax which was payable was deposited by the assessee along with interest and no prejudice has been caused to the department. Therefore, the penalty imposed under Section 34(8) of the Act has been deleted.
Revision dismissed.
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2015 (7) TMI 1296 - ITAT PUNE
Validity of notice issued u/s.158BD - block assessment - requisite conditions for such notice were not satisfied - addition u/s 68 and 69C - Held that:- There is no proof with the Department that money was given by the assessee to M/s. Maheshwari Financiers for obtaining the cheques or that after the loans were obtained cash was withdrawn and given to M/s. Maheswari Financiers. Merely on the basis of statement of the Accountant and without any corroborative evidence the addition made by the AO in a block assessment passed u/s.158BD r.w.s. 158BC which has been upheld by the CIT(A), in our opinion, is not correct and proper.
Also the block assessment order passed in the case of the searched person has been set aside by the CIT u/s.263 on 23-03-2006. Subsequent to the order passed u/s.263 the AO completed the assessment of the searched persons on 29-12-2006 by making addition u/s.69A amounting to ₹ 1,63,77,713/- as money lent to third parties, a statement made by the Ld. Counsel for the assessee at the bar and not controverted by the Ld. Departmental Representative. Therefore, we find merit in the submission of the Ld. Counsel for the assessee that when the order passed u/s.263 is in force in case of the searched person, there was no question of making addition in the hands of the assessee
Since in the instant case the block assessment of the searched persons were completed on 24-12-2003 and since the notice u/s.158BD was issued on 10-02-2006, i.e. after a gap of 26 months, therefore, in view of the decision of the Hon’ble Delhi High Court in the case of Bharat Bhushan Jain [2015 (1) TMI 705 - DELHI HIGH COURT]) the notices issued u/s.158BD are not in conformity with the requirements of section 158BD which were unduly delayed. Therefore, the notice issued u/s.158BD has to be held as invalid and void. - Decided in favour of assessee.
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