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Showing 101 to 120 of 1829 Records
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2017 (1) TMI 1732 - ITAT CHANDIGARH
Reopening of assessment u/s 147 - no return was being filed by the assessee - HELD THAT:- Material on record showed that the assessee filed original return of income for assessment year under appeal in October 2008, and is also not disputed by the Ld. DR. AO, therefore, recorded incorrect, irrelevant and non- existing reasons u/s 148 .
The reasons, therefore, are vitiated and liable to be quashed as would not showed even prima facie case that the Assessing officer has any reason to believe that income escaped assessment. It is not discernable as to whether Assessing officer has applied his mind to the report of the DIT (Inv.) New Delhi which is sole basis of recording of reasons for reopening of the assessment and independently arrived at a belief that income has escaped assessment, therefore, Assessing officer did not get jurisdiction to make re-assessment. No material or evidence that prima facie showed or established nexus or link which disclosed escapement of income. The re-assessment proceeding were invalid and are liable to be quashed. - Decided in favour of assessee.
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2017 (1) TMI 1731 - ITAT MUMBAI
Sum received at the time of retirement from the said firm - assessee partner has received a sum being transferred / relinquishment of right by the assessee in the firm M/s Deccan Enterprises, Bangalore - alternative submission to treat the alleged addition received at the time of retirement as the income of the firm - addition u/s 68 as assessee has not maintained books of accounts - HELD THAT:- This is a clear cut case of assessee receiving a sum of money on retirement from the firm.Admittedly, in the present case the assessee has not taken any property while relinquishing her share in the partnership firm rather she has taken equllant amount on retirement. The assets and firm is retained by the surviving partners. In such situation, respectfully following the judgment in the case of Prashant S. Joshi [2010 (2) TMI 271 - BOMBAY HIGH COURT] and Riyaz A. Sheikh [2010 (2) TMI 271 - BOMBAY HIGH COURT], we hold that the retirement funds received are not subject to tax and not in the nature of goodwill also. Accordingly, we reverse the orders of the lower authorities and allow the appeal of the assessee.
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2017 (1) TMI 1730 - CESTAT NEW DELHI
CENVAT Credit - input services - Air Travel Agent services - Maintenance and Repair service - Mandap Keeper service - Rent a cab service - Telephone services - allegation that credit has been availed on the basis of documents deposited by the ISD which were not input services for the respondent - HELD THAT:- Cenvat Credit is allowable in respect of the subject services - It is also a settled position of law that the Regional Import Officers / Head Office registered as ISD can distribute the credit availed on various services to all manufacturing units as per standard method devised by them.
The Commissioner (A) in the impugned order has also agreed and come to the conclusion that expenses on the subject services have been incurred and formed part of the goods included by the respondent unit in manufacturing and marketing of cement and cement clinkers. Accordingly, he has held that same are relatable to business activity and the Cenvat Credit on subject services has been rightly taken.
Credit allowed - appeal dismissed - decided against Revenue.
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2017 (1) TMI 1729 - ITAT CHENNAI
Non appearance by assessee - assessee is not interested in prosecuting the appeal - HELD THAT:- Despite noting of the hearing, when the appeal was taken up for hearing on 30.01.2017, none appeared on behalf of the assessee or any adjournment request has been filed by the assessee. Hence, it is inferred that the assessee is not interested in prosecuting the appeal.
Therefore, having regard to Rule 19(2) of ITAT Rules and following the decision in the case of Multiplan (India) Ltd. [1991 (5) TMI 120 - ITAT DELHI-D] and case of late Tukojirao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] the appeal of the assessee is dismissed for want of prosecution. - Decided against assessee.
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2017 (1) TMI 1728 - ITAT MUMBAI
Unexplained cash credit - enhancement of the income at the rate of 1.50% on total cash credit in the banks by the ld. CIT(A) as against the 1.00% applied by the AO - HELD THAT:- There are several cheque /RTGS entries of returned cheques/RTGS and interbank transfers in the assessee’s bank accounts which were also included in the total credits which according to us is not correct and need to be excluded for the reasons that there can not be any income on unpaid or returned cheques/RTGS/inter bank transfers in assessee’s banks.
Income of the assessee has to be calculated on the basis of correct amount of credits appearing in the bank accounts which required to be verified and ascertained at the level of AO.
All this has happened due non cooperation by the assessee during the assessment proceedings. - Restore the issue back to the file of the AO to make the assessment afresh as per law and facts after providing reasonable opportunity of hearing to the assessee to present his case. Assesssee is also to cooperate in the assessment proceedings and to file all the documents and information may be required by the AO to determine the income of the assessee. Appeal of the assessee is allowed for statistical purposes.
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2017 (1) TMI 1727 - CESTAT CHENNAI
Benefit of exemption N/N. 104/94-Cus., dated 16-3-1994 - “flexitanks” imported by the appellant was not re-exported by the same appellant with necessary processing thereto - HELD THAT:- Exemption is granted at the cost of the public. Any interpretation of the notification to the disadvantage of public interest shall result in breach of public trust. When the appellant executed bond to carry out certain obligations, non-fulfillment of such condition negates the claim to the notification benefit. Appellant is obligated under law to carry out the mandate thereof.
Benefit of the notification cannot be interpreted liberally unless the appellant first satisfies the basic condition of the notification - Appellant failed to do so and having gained the benefit of import duty at the time of import, it was duty bound under law to make export of the processed goods without passing on the goods to a third party, who was stranger to Revenue at the time of import.
Appeal dismissed.
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2017 (1) TMI 1726 - ITAT PUNE
Levy of penalty u/s. 271(1)(c) - Assessment u/s 153A - HELD THAT:- Explanation 3 is not attracted in the facts and circumstances of instant case. After search, the assessment and subsequent proceedings are carried out under special provisions of the Act. The Legislature in its wisdom has specifically mentioned about issuance of notices u/s. 142(1) or u/s. 148 in Explanation 3. There is no reference to notice u/s. 153A of the Act.
Where return of income is filed in pursuance to search action, provisions of Explanation 5 or 5A as the case may be are attracted, provided other conditions set out in the said explanations are fulfilled. Explanation 3 is attracted only where the assessment is made under regular provisions and not in case of search. Thus, we are of the considered view that the CIT (Appeals) has erred in invoking the provisions of Explanation 3 for confirming penalty u/s. 271(1)(c) of the Act in the present case. Therefore, no case for levy of penalty u/s. 271(1)(c) r.w. Explanation 3 is made out against the assessee. The Department is not in appeal against the order of Commissioner of Income Tax (Appeals). - Decided in favour of assessee.
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2017 (1) TMI 1725 - ITAT MUMBAI
Disallowance of depreciation on assets leased to GEB and Prakash Industries - HELD THAT:- CIT(A) while deciding this issue for the A.Y.1993-94 has been dealt by the Income Tax Appellate Tribunal, Ahmedabad Bench. CIT(Appeals) was not justified in rejecting the assessee’s claim of depreciation and holding that the transaction in question were in the nature of financing transactions simply by observing that facts and circumstances of the case was similar to the facts and circumstances of the case of ICICI Bank Ltd. because prior to amalgamation / taking over the affairs of M/s.Anagram Finance Ltd. by ICICI Bank Ltd., M/s.Anagram Finance Ltd. was an independent Limited Company (during the previous year relevant to Assessment Year 1993-94) and was carrying on independent business of leasing and financing.
Therefore, the nature of transaction carried on by M/s.Anagram Finance Ltd. should have been considered independently irrespective of the findings in the case of ICICI Bank Ltd. - Decided against revenue.
Disallowance of the depreciation on leased assets with Usha India Ltd., Sayaji Hotels and Shaan Packaging - letters were issued to the supplier which were returned unserved therefore the supplier were not in existence - HELD THAT:- The claim of the assessee was declined on the ground of that the letters were written to the supplier which were returned unserved and the supplier denied the supply or plant was not in existence. On appraisal of the above said evidence produced before us the finding of the AO as well CIT(A) does not seem reasonable. The evidence adduced by the assessee nowhere examined and discussed by the AO as well as CIT(A). Since the matter of controversy has not been decided by discussing the evidence adduced by the assessee, therefore finding of the CIT(A) is not liable to be sustainable in the eyes of law. We set aside the finding of the CIT(A) on this issue and direct the Assessing Officer to examine the issue afresh in the light of the evidence adduced by the assessee and decide the issue in accordance with law after giving an opportunity of being heard to the assessee. Accordingly, this issue is decided in favour of the assessee against the revenue.
Disallowance of depreciation on the transaction with GEB - Claim declined by the Assessing Officer on the ground of that the supplier sold the goods to the GEB and the GEB has not transfer the ownership to Anagram and the machinery was not supplied because only parts were supplied - HELD THAT:- AO as well as CIT(A) has declined the claim of the assessee on account of this facts that the supplier sold the goods to the GEB and the GEB did not transfer the ownership to Anagram and the machinery was not supplied because parts were supplied. The evidence adduced by the assessee nowhere examined and discussed by the AO as well CIT(A). Since the matter of controversy has not been decided by discussing the evidence adduced by the assessee, therefore in the said circumstances, we are of the view that the finding of the CIT(A) is not liable to be sustainable in the eyes of law. Therefore, we set aside the finding of the CIT(A) on these issues and direct the Assessing Officer to examine the issues afresh in the light of the evidence adduced by the assessee by giving an opportunity of being heard to the assessee.
Disallowance of depreciation in sale and lease back transaction - HELD THAT:- The present case is for the A.Y.1994-95 and the CIT(A) has declined the contention of the assessee on the ground of that the explanation 4A to the Section 43(1) of the Act was clarifactory in nature whereas the legal position is quite different which has been discussed above specifically in view of the law settled in Berlia Chemicals & Traders (P) Ltd. Vs. Assistant Commissioner of Income Tax 1999 (10) TMI 740 - ITAT MUMBAI and also Hon’ble Madras High Court in case titled as Om Sindhoori Capital Investments Ltd. Vs. Joint Commissioner of Income Tax 2004 (12) TMI 44 - MADRAS HIGH COURT Accordingly, we are of the view that the disallowance on depreciation on sale of lease back transaction is wrong against law - Decided against revenue.
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2017 (1) TMI 1724 - ITAT BANGALORE
Transfer Pricing adjustment u/s 92CA - management fee paid to the AE - HELD THAT:- When the assessee claims that the assessee has paid the management fee to the AE, no doubt the burden is on the assessee to prove that it has received services from its AE. But when the assessee has produced such material before any of the authorities below it is also the duty of the authorities to consider the same before coming to any conclusion on merits. Same, without verification of proper evidence, it not justified to come to the conclusion that payment of management fee of ₹ 1.55 crore is unwarranted. We set aside the order of the AO on this issue and remit the issue to the file of the AO/TPO for re-adjudication of the issue and re-determination of the arm’s length price in accordance with law. The assessee shall also be given an opportunity to produce all the relevant materials before the AO and the assessee shall co-operate with the AO for early determination of the arm’s length price by the AO/TPO.
Deduction u/s. 10A - HELD THAT:- Judgment of jurisdictional High Court in the case of CIT v Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] wherein it was held that the expenses reduced from the export turnover should also be reduced from the total turnover. Since the issue is covered by the judgment of jurisdictional High Court in the aforesaid case, we set aside the assessment order and direct the AO to recompute the deduction u/s. 10A in the light of judgment of jurisdictional High Court in the case of Tata Elxsi Ltd. Appeal of the assessee stands allowed for statistical purposes.
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2017 (1) TMI 1723 - ITAT CUTTACK
Reopening of assessment u/s.147 - deemed dividend addition - Concern in which the assessee is a member beneficiary, held more than 10% of the shares of the company, the loan to the extent of accumulated profits of the company is to be treated as deemed dividend in the hands of the assessee as per the provisions of section 2(22)(e) - HELD THAT:- From the recorded reasons of AO it will be seen that no new material had come to the knowledge of the Assessing Officer after processing of the return on 28.5.2008, the income chargeable to tax has escaped assessment.
On the basis of the return of income filed by the assessee, subsequently, the AO came to the conclusion that the loan/advance received by the assessee from of M/s. Sherawali Rice Mills Pvt Ltd., Boudh was assessable u/s.2(22)(e) of the Act as deemed dividend -Reopening of the assessment is bad in law as it is trite law that the reopening of assessment cannot be made on the very same set of facts, which were before the Assessing Officer at the time of processing of the return as it will amount to change of opinion. See M/S ATMA RAM PROPERTIES PRIVATE LIMITED. VERSUS DCIT [2011 (11) TMI 51 - DELHI HIGH COURT] - Decided in favour of assessee.
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2017 (1) TMI 1722 - ITAT CHENNAI
Reopening of assessment u/s 147 - loss on sale of shares - nature of loss - business loss or capital loss - as per AO Loss on sale of shares was not a business loss but only capital loss - HELD THAT:- Substantial part of loss claimed by the assessee was on account of loss in sale of shares which was debited in its profit and loss account as a specific item. It is not a case, where the ld. Assessing Officer was required to discover any material evidence with diligence. The entry was visibly available on the face of the record itself.
Thus, we cannot say that ld. Assessing Officer had determined the loss of the assessee without verifying the profit and loss account filed by it. In a case where reopening is attempted after four years from the end of an assessment year, first proviso to Sec. 147 would clearly apply. Nothing has been brought on record by the Revenue to show that assessee had failed to disclose fully and truly all material facts necessary for the assessment. Further, hon’ble Apex Court in the case of Kelvinator India Ltd [2010 (1) TMI 11 - SUPREME COURT] had held that in the absence of fresh tangible material, reopening could not be done where original assessment was completed u/s.143(3) of the Act. Reopening done for the impugned assessment year was bad in law. Ex-consequenti the assessment is set-aside. - Decided in favour of assessee.
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2017 (1) TMI 1721 - ITAT CHANDIGARH
Appeal filed by the assessee non-prosecuted - HELD THAT:- As on the date of hearing, none appeared on behalf of the assessee to argue the appeal. It, therefore, appears that assessee is no more interested in prosecuting the appeal and the appeal filed by the assessee is liable to be dismissed.
We get support from the decision of CIT v. B.N. Bhattachargee [1979 (5) TMI 4 - SUPREME COURT] wherein held that appeal does not mean merely filing of the appeal but effectively pursuing it. - We dismiss the appeal filed by the assessee for non-prosecution.
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2017 (1) TMI 1720 - CESTAT ALLAHABAD
Demand of Service Tax - remittance of royalty in their books of accounts towards payment to be made to their associates - service tax leviable for the past period, on reverse charge method - explanation to Rule 6 which came into effect from 10-5-2008 - HELD THAT:- In the amending Act in the Service Tax Rules, 1944, vide Notification No. 19/2008-S.T., dated 10-5-2008, it has been stated that the said amendment will have retrospective effect.
Prior to 10-5-2008 service tax was not demandable under Rule 6 of Service Tax Rules, 1994 on the basis of book entries made for Cenvat credit prior to the insertion explanation in Rule 6 with effect from 10-5-2008.
Extended period of limitation - HELD THAT:- The issue is wholly interpretational and it has been so held by the ld. Commissioner in the impugned order. Accordingly, the extended period of limitation is not invokable, in the facts and circumstances of the case.
Demand not sustainable - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1719 - ITAT MUMBAI
Undisclosed income - alleged suppression of receipts from Mr. Devendra Singh Tomar - HELD THAT:- \When the assessee explained the factual matrix supported by evidences like registered sale deed, supported by the affidavits, then it was the duty of the Assessing Officer either to contradict the same or to bring any evidence in support of the presumptive addition made by him. We are of the view that presumption cannot take the shape of the evidence, however strong it may be. Even otherwise, a single case cannot be the basis for making the addition in the cases of remaining buyers.
Rather, the situation is in favour of the assessee because in the cases of remaining buyers, the value/price mentioned in the registered documents has to be accepted in the case of one single buyer i.e. Mr. Devendra Singh Tomar, who negotiated with the assessee at the price, which was mentioned in the registered sale deed. The remaining buyers also made the payments as mentioned in the registered sale deeds. The earlier person, Mr. Milind Bhingare, who found the rate at the higher side, therefore, he cancelled the agreement. Thus, the onus cast upon the assessee was duly discharged. Rather, the onus cast upon the Assessing Officer was never discharged and he picked up one letter from 219 buyers and made proportionate addition in the hands of the assessee for the remaining buyers also. This type of approach cannot be said to be justified unless and until the same is substantiated with evidence. - Decided in favour of assessee.
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2017 (1) TMI 1718 - ITAT MUMBAI
Transfer pricing adjustment - alleged international transaction of provision of liasioning support services/ indenting services by Appellant to its associated enterprise without having regard to functions, assets and risk profile of the Appellant - HELD THAT:- Though, nature and character of the business of the assessee and its A.E. remained the same over the years, however, in no other assessment year any transfer pricing adjustment on account of provision of marketing support services to A.E. has been made. This is evident from the order passed by the TPO u/s 92CA for A.Y. 2012–13. Though, each assessment year is independent and principle of res judicata generally do not apply to income tax proceeding, however, rule of consistency cannot be ignored if there is no material difference in facts. There being no basis for concluding that the assessee has provided any marketing support services to A.E. or has received any commission from the A.E. for providing such marketing support services, the transfer pricing adjustment made is hereby deleted.
Disallowance being 50% of the expenditure incurred towards employees cost and administrative and selling of distribution expenses - HELD THAT:- There is no concrete evidence before the Departmental Authorities nor any material has been brought on record to establish the fact that the assessee has been providing marketing support services to its A.E. as far as sale of turbines by the A.E. is concerned. On the contrary, the information obtained u/s 133(6) from the parties in India to whom the A.E. had sold gas turbines clearly reveal that all these customers have unequivocally stated that they have directly negotiated with the A.E. as far as purchase of gas turbines are concerned and they have independently entered into contract with the assessee for installation, maintenance and supply of balance parts. Contention of the assessee that its turnover during the impugned assessment year has increased by 40% and the head count of employees have increased as well as payments of provident fund for the first time, payment of participation fee, travelling fee incurred for attending conference, training of employees, etc., have not been disproved by bringing cogent material on record. In the aforesaid view of the matter, the ad–hoc disallowance of 50% out of the expenditure claimed on protective basis,
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2017 (1) TMI 1717 - ITAT MUMBAI
Application of net profit rate - entire bank deposit managed by the agents - HELD THAT:- We direct the AO to apply 0.15% net profit rate on the bank deposits to arrive at the net profit of the assessee.
Penalty u/s 271(1)(c) - HELD THAT:- In the instant case also income has been assessed on estimated basis merely because a high percentage of income was assessed, the levy of penalty is not automatic as held in the case of Aero Traders Pvt. Ltd. [2010 (1) TMI 32 - DELHI HIGH COURT]. Respectfully following the above decision of the Tribunal in the group concerns, we delete the penalty so imposed.
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2017 (1) TMI 1716 - KERALA HIGH COURT
Compounding rate of tax - bar attached hotel of and below two star - section 7 of the Kerala General Sales Tax Act, 1963 - whether the assessee would be able to opt as between Clauses (a) and (b) of S. 7(1)(i)? - HELD THAT:- When Clause (b) of S. 7(1)(i) applies, the amount of tax is a pre-determined amount. That is dependent upon the turnover of the three previous consecutive years. Therefore, even when assessee proceeds to seek payment of tax at compounded rate under S. 7(1) for a particular year, he would be guided by books of accounts which are in that person's possession itself. Hence, no fresh assessment as known to law is required. There are no jurisdictional error in either the assessing authority having required the assessee to pay the differential in terms of S. 7 or the Accountant General's office or the squad of that office having prompted the assessing authority to proceed to make demand for the remaining amount.
Assessee, ultimately, argued that the assessee was essentially falling into a trap of misrepresentation by the assessing authority - HELD THAT:- This argument only to be rejected because there is no question of any misrepresentation of any nature, since the payment of tax consequent on an option exercised by the assessee does not depend upon any representation of the assessing authority or any other statutory authority under the Act. What we say now is in tandem with what we have already said as to the automatic flow of the consequences of option. Further, there is no question of the assessee opting either for a particular rate of tax or for opting as between Clauses (a) and (b) of S. 7(1)(i) of the Act adverse to the interest of the Revenue.
Revision dismissed.
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2017 (1) TMI 1715 - DELHI HIGH COURT
Settlement agreement - HELD THAT:- Along with this application which has been jointly filed by the parties, a settlement agreement dated 11th January 2017, entered into between them has been placed on record. It is taken on record.
It is prayed that the petition be disposed of in terms thereof. The application is allowed.
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2017 (1) TMI 1714 - ITAT CHENNAI
Calculation of capital gain - credit as a part of cost of acquisition/improvement for calculating capital gains - HELD THAT:- Regarding the issue of capital gains, it transpires that there is hardly any dispute that the assessee had availed the loan for purchasing the property in question. Since the assessee had shown the income under the head ‘house property’, he preferred to raise the claim of deduction u/s 24(b) which reads as under:
“(b) where the property has been acquired, constructed, repaired, renewed or reconstructed with borrowed capital, the amount of any interest payable on such capital”
There is no quarrel that since the assessee’s claim of deduction was under the statutory provisions; therefore, he succeeded in getting the same. After the property was sold, he also chose to include the interest amount while computing capital gains u/s 48.
Assessee is entitled to include interest in the capital cost while computing capital gains u/s. 48. Judicial discipline requires us to follow the order of a coordinate Bench unless it could be demonstrated that the view taken was contrary to a provision of law. CIT (Appeals) in the case before us had followed the decision of Coordinate Bench. We cannot therefore interfere with the order of the ld. CIT (Appeals). Appeal of the Revenue stands dismissed.
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2017 (1) TMI 1713 - MADHYA PRADESH HIGH COURT
Claim for refund of interest on the TDS - interest on the TDS deposited under section 201(1) and 201(1-A) of the Income Tax was not refunded and claiming refund of the interest which was deposited, once TDS has been refunded this writ petition has been file - HELD THAT:- Delay in deposit of TDS interest is liable to be paid in law which becomes non refundable. Be it as it may be the fact remains that the question of refund of interest to the petitioner in accordance to the law has to be decided and as respondent no.2, the competent authority has not taken any decision in this regard, we deem it appropriate to remand the matter back to respondent no.2 for considering the question of refund of the interest to the petitioner. Accordingly, we dispose of this petition in the following manner:
On the petitioner's filing a certified copy of this order alongwith detailed claim for refund of interest on the TDS paid by the petitioner and deposited with the revenue by the respondent no.3 alongwith interest, respondent no.2 shall consider the claim of the petitioner, if required, hear the petitioner and respondent no.3 and thereafter pass appropriate order with regard to the claim made for, refund of the interest in accordance with law . The aforesaid exercise be completed and a final decision taken in accordance with law after hearing all concerned preferably within a period of 60 days from the date of receipt of certified copy of this order.
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