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Showing 61 to 80 of 1594 Records
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2022 (9) TMI 1535 - GUJARAT HIGH COURT
Levy of penalty under section 112(a) of CA - appellant was not involved in either import or export of the goods in dispute - appellant has not aided or abetted or omitted to do any act for which the goods in disputes were liable for confiscation - HELD THAT:- When against the very order impugned, the appeal by one of the respondents came to be decided, the present appeal shall be governed by the said decision. The reasons supplied by the Division Bench in M/S. ADANI ENTERPRISES LTD FORMERLY KNOWN AS ADANI EXPORT VERSUS COMMISSIONER OF CUSTOMS KANDLA [2022 (7) TMI 105 - GUJARAT HIGH COURT] shall form part of the reasoning of this order - In the said decision dated 9.6.2022, the show cause notice are held to be without authority of law and the questions of law are kept open.
Tax appeal disposed off.
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2022 (9) TMI 1534 - SC ORDER
Business loss claim on account of permanent diminution in the value of the investment made in the equity shares in one of the subsidiaries of the assessee in USA - According to AO this loss was not allowable u/s 37 since the expenditure could not have been considered as a revenue expenditure.
HELD THAT:- Issue notice with respect to question no.2 before the High Court, reproduced in para 3 of the impugned judgment and order passed by the High Court only, making it returnable on 14.11.2022.
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2022 (9) TMI 1533 - SUPREME COURT
Suit for specific performance - money lending transaction or not - denial of execution of the sale deed - HELD THAT:- The plaintiff himself has admitted in the plaint that the suit property is jointly owned by the defendant, his wife and three sons. A specific objection was also taken by the defendant in his written statement with regard to nonjoinder of necessary parties. Since the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant’s wife and three sons without impleading them.
It can thus be seen that what has been held by this Court is that for being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party.
In view of the plaintiff’s own admission that the suit property was jointly owned by the defendant, his wife and three sons, no effective decree could have been passed in their absence.
Thus, no error can be noticed in the judgment of the High Court. The appeals are therefore liable to be dismissed.
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2022 (9) TMI 1532 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - Respondent had not passed on the benefit of reduction in the rate of tax to the customers by way of commensurate reduction in the price of the product sold by him - contravention of provisions of section 171 (1) of the CGST Act, 2017 - HELD THAT:- There is no dispute with regard to the reduction of the tax in respect of subject products supplied by the Respondent with effect from 15-11-2017. The Government by Notification No. 41/2017-CT (Rate), dated 14-11-2017 has reduced rates on subject products. In view of the above said facts and the records, the Authority has observed that the Respondent, M/s. Raj & Company was a distributor of M/s. L Oreal India Pvt. Ltd. The Authority finds that M/s. L Oreal India Pvt. Ltd. was investigated by the DGAP for allegations of profiteering and not passed on the benefit of reduction of GST rate after the said Notification dated 14-11-2017 and the Authority has found them violating the provisions of section 171 of the CGST Act, 2017 for the products sold by them for the period from 1-4-2018 to 31-12-2018, and, this Authority vide Order No. 26/2022 dated 23-6-2022, has also confirmed profiteering to the tune of Rs. 186,39,57,058/- against M/s. L Oreal India Pvt. Ltd. for the period from 15-11-2017 to 31-12-2018.
This Authority is of the opinion that the amount of profiteering calculated against the Respondent might have been already calculated and confirmed against M/s. L Oreal India Pvt. Ltd. as the period of investigation in the present case is already covered in the period of investigation in case of M/s. L Oreal India Pvt. Ltd. and the products on which profiteering has been calculated in the present case, have been included in the case of M/s. L Oreal India Pvt. Ltd. - considering the above facts on record and to avoid the duplication and doubling of confirming of profiteered amount, this Authority directs the DGAP to re-investigate/re-examine the matter and make sure whether the amount of profiteering calculated in the present case has already been considered in the case of M/s. L Oreal India Pvt. Ltd. or not, under rule 133(4) of the CGST Rules, 2017.
Application disposed off.
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2022 (9) TMI 1531 - CALCUTTA HIGH COURT
Section u/s 80IA - insolvency proceedings - Assessee submitted that the application filed by the financial creditor under Section 7 of the Insolvency & Bankruptcy Code 2016 (IBC) before NCLT, Kolkata was admitted for initiating the corporate resolution process in respect of assessee company and the NCLT by order dated March 13, 2019 declared moratorium for the purposes of referring to in section 14 of the IBC.
NCLT has approved the resolution plan submitted by the company on 24th February, 2020. Since the resolution plan has already been approved, the instant appeal has become infructuous and accordingly stands dismissed without any order as to costs.
Further in the assessee’s own case appeal filed by the revenue for the other assessment years were also dismissed on similar grounds.
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2022 (9) TMI 1530 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Flat - non-adherence of period of six months provided in rule 133 of the CGST Rules, 2017 - contravention of section 171 of CGST Act - HELD THAT:- Without going into the merits and the other submissions made by the Respondent and the Applicants at this stage, this Authority finds this case must be reinvestigated by the DGAP based on the above directions of this Authority. Thus, the DGAP is directed to reinvestigate the matter as per the provisions of rule 133(4) of the CGST Rules, 2017 and submit his report before this Authority.
The Hon'ble High Court of Delhi, vide its Order in the case of Nestle India Ltd. v. Union of India [2020 (2) TMI 671 - DELHI HIGH COURT] has held that the limitation of period of six months provided in rule 133 of the CGST Rules, 2017 within which the authority should make its order from the date of receipt of the report of the Directorate General of Anti Profiteering, appears to be directory inasmuch as no consequence of non-adherence of the said period of six months is prescribed either in the CGST Act or the rules framed thereunder.
Matter on remand.
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2022 (9) TMI 1529 - ITAT AHMEDABAD
Rectification of mistake - as calculating disallowance in respect of operating revenue of manufacturing segment @ 1.5%, the Bench has wrongly applied 2% of the same - HELD THAT:- The paragraph 7 of order categorically deals with the percentage of operating revenue on the identical facts in case of the assessee in different years and finally applied 2% of the operating revenue of manufacturing segment, which was worked out at Rs.2,20,88,379/- and therefore disallowance was made Rs.10,47,454/- against the assessee in respect of the operating revenue of manufacturing segment.
We do not find any error apparent on the face of the record which could at all be prayed for rectification. Hence MA filed by the Revenue is dismissed.
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2022 (9) TMI 1528 - ITAT DELHI
Disallowance u/s 14A r.w.r. 8D - CIT (A) deleted the disallowance as the assessee did not receive any exempt income during the assessment year under consideration - scope of amendment made by the Finance Act, 2022 to Section 14A - HELD THAT:- CIT (Appeals) followed the decision of Cheminvest Limited [2015 (9) TMI 238 - DELHI HIGH COURT].
Also recently in the case of M/S. ERA INFRASTRUCTURE (INDIA) LTD. [2022 (7) TMI 1093 - DELHI HIGH COURT] and Sedco Forex International Drill. Inc [2005 (11) TMI 25 - SUPREME COURT] and M.M. Aqua Technologies Ltd. [2021 (8) TMI 520 - SUPREME COURT] held that the Amendment to section 14A of the Act w/o for removal of doubts cannot be presumed to be retrospective. No infirmity in the order passed by the ld. CIT (Appeals) in deleting the disallowance made under section 14A read with Rule 8D - Decided against revenue.
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2022 (9) TMI 1527 - PUNJAB AND HARYANA HIGH COURT
Grant of bail - Money Laundering - siphoning off of funds to purchase properties in the name of his wife Nisha, and subsequently she gifted a few properties to their daughter - HELD THAT:- There is prima facie evidence which points out embezzlement and laundering of massive sum of money and there is clear cut evidence of the gift amount of around Rs.26.42 crores. The statement made in the reply mentioned above corroborated by the digital and documentary evidence - The frauds of crime are approximately Rs.155.21 crores.
Given the fact that there is prima facie sufficient evidence connecting the petitioner with the aforesaid amount and also considering the massive amount involved, the petitioner is not entitled to bail - the petition is dismissed.
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2022 (9) TMI 1526 - ITAT CHENNAI
Deduction u/s. 80P(2)(d) - interest income from investment in Co-operative bank - HELD THAT:- An identical issue had been considered in the case of Varathappam Palayam Primary Agricultural Co-op. Credit Society [2022 (7) TMI 113 - ITAT CHENNAI] and by following decision of The Salem Agricultural Producers Co-operative Marketing Society Ltd [2016 (9) TMI 699 - MADRAS HIGH COURT] held that interest earned on deposits with District Central Cooperative Banks is assessable under the head ‘business income’ of the co-operative society and consequently, for said interest benefit of section 80P(2)(d) is available.
Thus assessee is entitled for deduction towards interest earned from Coimbatore District Central Co-operative Bank u/s. 80P(2)(d) - Decided in favour of assessee.
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2022 (9) TMI 1525 - ITAT CUTTACK
Revision u/s 263 - Inadequate or no enquiry - Assessment of trust - taxable income in terms of section 11(1) - as per CIT-E amount collected as development fees from its students had been directly carried to the balance sheet under the nomenclature “Development fund” instead of routed through the income and expenditure account - HELD THAT:- In this case, the assessee has complied by producing all the evidences as called for insofar as the compliance report which is a system generated report shows that the compliance is in full. Thus, this cannot be said that there is “lack of enquiry” by the AO much less “inadequate enquiry” and far less “no enquiry”.
In this case, the assessee has complied by producing all the evidences as called for insofar as the compliance report which is a system generated report shows that the compliance is in full. Thus, this cannot be said that there is “lack of enquiry” by the AO much less “inadequate enquiry” and far less “no enquiry”.
A perusal of the order passed u/s.263 of the Act shows that the ld. CIT(E) has taken the total revenue earned and amount is inclusive as development fees collected by the assessee from the students. When doing the computation, the ld. CIT(E) has granted 15% accumulation u/s.11(1) of the Act, he has not taken into consideration the capital expenditure which is an application.
If this capital expenditure, which is application of income of Rs. 258 crores, is taken into consideration, the taxable income as computed by the ld. CIT(E) would automatically go into a loss.
A perusal of the order of the ld. CIT(E) shows that after receiving this reply of the assessee no further verification much less an enquiry has been done by the CIT(E) to even make an attempt to show that the calculation as shown by the assessee is erroneous in any manner whatsoever. This is a minimum expectation.
After the receipt of the reply of the assessee, the order has been passed after more than two months and there is nothing shown to show that the calculation as done by the assessee is erroneous. It is also not being rejected by the ld. CIT(E) but has just proceeded to hold that the assessment order is erroneous and prejudicial to the interest of revenue and set aside the same. This is not permissible.
In the present case, clearly no enquiry has been done by the ld. CIT(E). The Hon’ble Jurisdictional High Court of Orissa []2022 (4) TMI 1395 - ORISSA HIGH COURT further goes on to hold that “the purpose of such an enquiry would be to arrive at a subjective view that the order of the AO was erroneous insofar as it is prejudicial to the interest of Revenue”. Here, the ld. CIT(E) has done nothing to arrive at the subjective view that the order of the AO was erroneous insofar as it is prejudicial to the interest of revenue. In fact, this is a case where there is “no enquiry” by the ld. CIT(E).
Also the fact that the ld. CIT(E) has also made a calculation which attempts to show escapement of income u/s.11 of the Act which is taxable, by excluding the application of income which is permissible u/s.11(1) of the Act, is nothing but a jugglery in arithmetic. This is not a case where there is incorrect application of law. This being so, we are of the view that the principle of law laid down in the case of Orissa State Police Housing & Welfare Corporation Ltd. [2022 (4) TMI 1395 - ORISSA HIGH COURT] is squarely applicable in the case of present assessee, insofar as there is no enquiry done by the ld. CIT(E) after receipt of the reply filed by the assessee.
This view of ours also support by the decision of the coordinate bench of the Tribunal in the case of Saroj Kumar Mishra [2022 (8) TMI 1456 - ITAT CUTTACK] - order passed by the ld. CIT(E) is unsustainable and consequently, the same stands quashed. Decided in favour of assessee.
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2022 (9) TMI 1524 - ITAT DELHI
Rectification of mistake - Non-adjudication of ground vis-à-vis exclusion of Eclerx Services Limited (Eclerx) from the set of comparable companies - HELD THAT:- Tribunal while passing the order [2018 (3) TMI 2013 - ITAT DELHI] inadvertently omitted to adjudicate one of the comparable companies, namely, Eclerx Services Limited.
Non-adjudication of ground No. 3.5 vis-à-vis Eclerx Services Limited while passing the order by the Tribunal is a mistake apparent from record. Thus, we recall the order of the Tribunal for the limited purpose of adjudicating one of the comparables, namely, Eclerx Services Limited, which is part of ground No. 3.5 for adjudication by the Tribunal.
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2022 (9) TMI 1523 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Dismissal of application invoking Section 70 of the Insolvency and Bankruptcy Code, 2016 - dismissed only on the ground that the Tribunal lacks jurisdiction to entertain such an application - HELD THAT:- Reliance placed in the matter of 'Vivek Prakash (Suspended Director & MD) vs. Dinesh Kr. Gupta, Liquidator of M/s. Jarvis Infratech Pvt. Ltd. & Anr.' [2022 (2) TMI 906 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] in which it has been held that the RP is not empowered to initiate the prosecution but at the same time, it has been held that in order to initiate prosecution under Section 70 the complaint has to be filed by the Insolvency and Bankruptcy Board of India (IBBI) or Central Government or person authorized by the Central Government.
There are no error in the order of the Ld. Tribunal, therefore, the present Appeal is hereby dismissed.
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2022 (9) TMI 1522 - SC ORDER
Grant of extension of interim bail to the respondent for a period of six weeks - HELD THAT:- Issue notice, returnable on 10.10.2022. Till then, the interim protection granted by the High Court shall continue.
It is made clear that the pendency of the present special leave petition or impugned order of the High Court would not come in the way of considering the application of the petitioner for grant of regular bail.
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2022 (9) TMI 1521 - DELHI HIGH COURT
Grant of extension of interim bail to the respondent for a period of six weeks - interim bail sought on medical grounds - HELD THAT:- A bare perusal of the medical report reveals that the medical ailments suffered by the respondent duly stand noticed by the Medical Board. After noticing the details of the ailments suffered by the respondent, it has been categorically observed: “examination of the patient revealed stable vital parameters (BP-140/80 mmHg: Pulse rate 78/min: SpO 2-96% in room air) and physical examination of cardiovascular and respiratory systems were unremarkable. The Board members are of the opinion that at the given moment, patient’s vitals are stable and he is doing well with the current treatment being given to him.”
As on 22.08.2022, it could not have been said that the treatment of the respondent was not feasible in any Government Hospital, in custody. Neither the condition of the respondent required immediate hospitalization. As such, the observations made by the learned Trial Court in the impugned order do not appear to be in the correct perspective - However, since it has now been informed by the learned senior counsel for the respondent that the respondent has again been hospitalized on 26.09.2022, it may not be appropriate to deprive the respondent of the benefit of interim bail till 30.09.2022 which has been granted by the learned Trial Court.
The respondent is directed to surrender before the Superintendent Jail on the date of expiry of interim bail granted by the learned Trial Court. However, in case it is assessed that the respondent cannot be discharged due to his admission in the hospital on account of any aggravated medical condition or if the circumstances so require, the respondent shall continue to be admitted in the hospital in judicial custody till the time his condition improves. The same shall be further subject to evaluation of the medical condition of the respondent by the same Medical Board from Dr.RML Hospital within a period of one week from 30.09.2022 - List on 07.10.2022.
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2022 (9) TMI 1520 - DELHI HIGH COURT
Reduction of the equity shareholding of the Respondent no. 2 - Embezzling, siphoning-off and mis-appropriation of loan amount - non-payment of salaries - falsification of accounts - HELD THAT:- The parties are present in Court agree to abide by the terms and conditions set forth in the affidavit as also the Settlement dated 06.07.2022, reduced in writing between the parties, though not filed before this Court, because of confidentiality.
There is no impediment in quashing of the FIR as it would never entail in conviction of petitioners.
The petition is allowed subject to providing the original Resolution as aforesaid to respondent No.2.
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2022 (9) TMI 1519 - ITAT DELHI
TDS u/s 194H - disallowances u/s. 40 (a) (ia) - 15% discount given by the assessee to its advertising agencies - Non deduction of TDS - HELD THAT:- What is to be seen at the time of evaluation of applicability of section 194H is the relation of payer and payee and the character or nature business of assessee does not create any distinction in this regard.
As in the case of Jagran Prakashan [2012 (5) TMI 488 - ALLAHABAD HIGH COURT] categorically held that when there is no agreement between the payer and payee advertising agencies and the advertising agency has never been appointed as an agent of payer assessee then the commission paid to the advertising agencies cannot be characterize as an payment from principal to principal basis and in such a situation the provisions of section 194H of the Act are not applicable to the such discount / commission and the assessee is not under obligation deduct TDS thereon.
CIT (A) was right in relying on CBDT Circular No.06.2016 - Undisputedly the AO never made any disallowance or addition on this issue of payment commissioner/ discount to the advertising agencies neither from earlier other nor from subsequent assessment year and only made disallowance in A.Y.2009-10.
Principal of consistency always followed by the tax authorities, in the identical and similar facts and circumstances. AO has not mentioned any reason as to why he proceeded to take a deviated view from preceding assessment years contrary to rule of consistency, in this particular A.Y.2009-10 under identical facts and circumstances. Decided in favour of assessee.
Disallowance u/s 14A r.w.r. 8D - CIT(A) restricted addition - HELD THAT:- AO has invoked provisions of section 14A of the Act r.w.r 8D (iii) of the Rules by taking 0.5% of average of investments of assessee in the opening and closing of the year which has been reduced by the CIT(A) to the extent of average of investment out of which the assessee has earned exempt income during the relevant financial period. This conclusion of Ld. First appellate authority is in accordance with the order of ACIT Vs. Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI]
No valid reason or any other factual dissimilarity or legal position, which may lead us to take a different view. Therefore, findings of Ld. CIT(A) on this issue are also confirmed. Decided against revenue.
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2022 (9) TMI 1518 - CALCUTTA HIGH COURT
Assessment proceedings u/s 153C(1) - determining the six assessment years - jurisdiction of the searched group and the seized materials were with the AO and the assessee’s jurisdiction has been transferred in to the AO’s jurisdiction vide order u/s 127 - Tribunal has noted that the AO received the materials from the AO of the searched person on 2nd August, 2016 - HELD THAT:- Tribunal held that the assessments for the years 2009-10 and 2010- 11 could not have been subjected to assessment proceedings under Section 153C(1) of the Act with regard to as to how this year period should be calculated. Learned Tribunal rightly took note of the decision in the case of SSP Aviation Ltd.[2012 (4) TMI 335 - DELHI HIGH COURT] wherein held in the case of the other person, which in the present case is the petitioner herein, such date will be the date of receiving the books of account or documents or assets seized or requisition by the Assessing Officer having jurisdiction over such other person. In the case of the other person, the question of pendency and abatement of the proceedings of assessment or reassessment to the six assessment years will be examined with reference to such date.
The jurisdictional issue has been decided by the Tribunal taking note of the admitted factual position that the assessee’s Assessing Officer received the materials from the Assessing Officer of searched person only on 2nd August, 2016. If that be the case, the assessment for the year 2010-11 could not have been subjected to proceedings under Section 153C(1) of the Act.
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2022 (9) TMI 1517 - BOMBAY HIGH COURT
Reopening of Re-assessment - notice issued to a dead person - HELD THAT:- AO as proceeded to pass the order of assessment against the deceased assessee. The said order is unsustainable as the entire reassessment proceedings were initiated and the order impugned passed against a dead person, which makes the order invalid and non est in the eyes of law.
This court in the case of Dipak Tanna [2022 (6) TMI 1435 - BOMBAY HIGH COURT] has held that the notice issued to a dead person is not valid. Reliance in this regard can also be placed in the case of ITO v. Durlabhbhai Kanubhai Rajpara [2019 (10) TMI 933 - SC ORDER] as held that a notice issued under section 148 of the Act against a dead person would be invalid, unless the legal representatives submit to the jurisdiction of the Assessing Officer without raising any objection. Consequently, where the legal representatives do not waive their right to a notice under section 148 of the Act, it cannot be said that the notice issued against the dead person is in conformity with and with intent and purpose of the Act
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2022 (9) TMI 1516 - ITAT CHENNAI
Disallowance of deduction of ESI and PF claimed u/s. 36(1)(va) - HELD THAT:- Admittedly, the assessee has made these payments before the due date of filing of return of income u/s. 139(1) of the Act, but after the due date as prescribed under the respective acts of Provident Fund and ESI Act. Once this is a factual position, the issue is covered by the decision of Checkmate Services P. Ltd.[2022 (10) TMI 617 - SUPREME COURT] wherein it was held that the employees contribution of ESI and PF has to be remitted on or before the due date as prescribed under the respective statutes and not after that for making a claim. We dismiss the claim of the assessee.
Disallowing the inconsistency in total amount claimed u/s. 37 - difference in reporting in ITR and claimed in Form No.3CD - HELD THAT:- The assessee has made a disallowance under the provisions of s. 37 of the Act, because there is no specific clause in tax audit report to report the amount to be considered for disallowance u/s. 40(a)(ii) of the Act. We find that there is some problem in the tax audit form or in the processing of return through CPC. But, in any case from the facts it is clear that these amounts are already disallowed by the assessee and nothing more is to be disallowed, because total disallowance practically comes to Rs. 21,02,846/- and for that purpose no separate disallowance u/s. 143(1) of the Act can be made for an amount of Rs. 8,24,846/-. We direct the A.O to allow the same. This issue of assessee’s appeal is allowed.
Difference pertaining to payment made for gratuity to the employees which is of allowable expenditure as per Explanation 2 to s. 40A(7) - HELD THAT:- We are of the view that the deduction of gratuity is available in substantive law and it cannot be disallowed merely by the reference of inconsistent entries in explanation of s. 143(1)(a) of the Act being a procedural provisions, it shall not take away the right confirmed in s. 37 r/w s. 40A(7) and s. 36(1)(v) of the Act. We direct the A.O to delete this disallowance. This issue of assessee’s appeal is allowed.
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