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Showing 41 to 60 of 2062 Records
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2019 (1) TMI 2026
Cancellation/withdrawal of permission granted to the Appellant (for operating as Multi System Operator (MSO) in the Digital Addressable System (DAS) notified areas) - HELD THAT:- The impugned order of cancellation was passed in conformity with the requirements of Rule 11C of the Rules and hence it was rightly upheld by the High Court in impugned order.
It is clear from mere reading of the Rule 11C(1) that grant of permission is subject to issue of security clearance from the Central Government to the applicant (Appellant in this case) - In this case, admittedly the Appellant failed to obtain the security clearance as provided Under Rule 11C of the Rules. It was a mandatory requirement as provided Under Rule 11C of the Rules. Since the grant of permission was subject to obtaining of the security clearance from the concerned Ministry, the competent authority was justified in cancelling the conditional permission for want of security clearance.
Having perused the note filed by the Union of India, which resulted in cancellation of permission, it is opined that in the facts of this case, the Appellant was not entitled to claim any prior notice before passing of the cancellation order in question.
The principles of natural justice were not violated in this case in the light of the law laid down by this Court in the case of Ex-Armymen's Protection Services Private Limited [2014 (2) TMI 1422 - SUPREME COURT] inasmuch as the Appellant was not entitled to claim any prior notice before cancellation of permission.
The appeal is found to be devoid of any merit. It is accordingly dismissed.
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2019 (1) TMI 2025
Non prosecution of appeal - MA for recall of the order for erler AY dismissing the appeal of the Assessee owing to non prosecution - AR submitted that the arguing counsel had planned to travel to Chandigarh from Delhi to appear and argue the appeals before the Hon'ble ITAT but in the early morning he was suffering from mild fever and hence he could not travel to Chandigarh and due to paucity of time he could not instruct any of his junior at his Delhi office to travel to Chandigarh and seek adjournment - HELD THAT:- Having gone through the facts of the case, since a reasonable cause could be brought out by the Ld.AR, we here by recall the order fixing the regular hearing on 17/01/2019. It is here by clarified in the court that no separate notice of hearing would be issued.Misc. Applications are allowed.
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2019 (1) TMI 2024
Valuation of goods - inclusion of cost of bought out nuts and bolts supplied directly to the site of erection installation of transmission line towers in the assessable value or not - HELD THAT:- The identical issue in the appellant’s own case for a different period has been decided by this Tribunal in EMCO LTD VERSUS C.C.E. & S.T. VADODARA-II [2018 (7) TMI 1712 - CESTAT AHMEDABAD] where it was held that The nuts and bolts supplied directly to the supply of the supplier being out of the part of manufacturing of appellant is not liable for duty.
Appeal allowed.
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2019 (1) TMI 2023
Exemption u/s 11 & 12 - assessee activities are not within the purview of the section 2(15) - activity of charging fee against the barcode technology to the customers is purely in the nature of commercial and business activity - assessee has been granted registration under section 12AA(1) as well as approved under section 10(23C)(vi) - HELD THAT:- As decided in assessee own case [2017 (11) TMI 1049 - ITAT DELHI] activities of the assessee are covered u/s 2(15) of the Act under the sixth limb and that the assessee is eligible for exemption u/s 11(1) of the Act. There is no change of circumstances since the date of the order of the Hon' High Court and also from the facts relevant to the assessment years 2009-10 and 2010-11.
Allowing depreciation despite claiming benefit of application of the purchase of the assets Tribunal [2018 (6) TMI 443 - ITAT DELHI] following the decision of the Hon’ble Supreme Court in the case of CIT Vs. Rajasthan and Gujarat Charitable Foundation Poona [2017 (12) TMI 1067 - SUPREME COURT] allowed the claim of the assessee.
Claim of the accumulated funds was also allowed by the Tribunal as upheld that the activity of the assessee are charitable in nature and, thus, the claim of the assessee for carry forward under section 11(2) has been rightly allowed by the Ld. CIT(A) - Decided against revenue.
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2019 (1) TMI 2022
Use of joint nucleus funds for the purchase of the suit property - exclusive right over family property - partition of the suit property that was in the name of one brother, the sole defendant in the suit - trial Court on appreciating the evidence, has found that the deceased sole defendant could not have possessed necessary resources to purchase the property in 1956, and accordingly it held that the property is partible and passed a preliminary decree for partition.
Allegation in the plaint was suit property was purchased by a certain Maruthumuthu, the father of the parties herein in the name of the first defendant. Maruthumuthu had four sons, of whom, the second plaintiff is his second son and the defendant is his youngest son. His other two sons are Ramasamy and Gurusamy, who died and their legal heirs are the first, third and fourth plaintiffs. The entire consideration for the purchase of the property proceeded from their father Maruthamuthu, and all along it was treated only as a family property.
HELD THAT:- As with the advent of the prohibition of Benami Property Transactions Act, 1988, it is no more permissible for anyone to plead benami either in the plaint or in the written statement, unless the case falls within the exceptions provided under Section 4 of the said Act. However, if any of the parties to the litigation claims to fall under the exception, to Section 4 of the said Act, then it must be specifically pleaded. This has not been done, and the entire case proceeds along the lines of projecting the case of benami, this is clearly impermissible.
The appellants/plaintiffs necessarily have to be non-suited under Section 4 of the prohibition of Benami Property Transactions Act, 1988. This appeal is therefore dismissed and judgment and decree dated made on the file of the Additional District Judge's (Fast Track) Court, Ariyalur, is confirmed
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2019 (1) TMI 2021
Undervaluation of Waste Pickle Liquor (WPL) - pickling process i.e. process of removing impurities & rust on the Wires manufactured by the Appellant - HELD THAT:- This process of application of hydrochloric acid on the coil is called pickling process. After undertaking the pickling process the mixture of hydrochloric acid and the impurities and rust, is termed as WPL. Such WPL is nothing but waste which is not emerging by the process which amounts to manufacture. Therefore, WPL is not a manufactured good and hence not excisable good at all. Hence, no duty is liable to be paid for WPL.
It is evident that WPL is not an excisable good and is only a waste generated during the manufacture of another product. In the instant matter also WPL emerges during the pickling process whereby hot rolled coils are passed through the hydrochloric acid bath/tank to remove the scales formed on the surface of such hot rolled coils. The Revenue sought to recover the amount of Rs.1,215/- from the Appellants since according to them 50% of sale proceeds received by the appellant from Indrox by way of credit note is the additional consideration received in terms of Rule 6 of Valuation Rules, 2000. After going through Rule 6 ibid, for the purpose of its application the goods have to be excisable goods.
Since it has already been held by the Tribunal in the matter of Indian Tube Co. Ltd. [1988 (8) TMI 197 - CEGAT, NEW DELHI] that WPL is not an excisable good, which was later on affirmed by the Hon’ble Supreme Court, therefore Valuation Rules, 2000 has no application on the facts of this case. That being so, the question of undervaluation or otherwise of WPL does not arise and as a result the demand raised in the show cause notice dated 30.10.2009 cannot be sustained.
Appeal allowed.
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2019 (1) TMI 2020
Exemption from payment of SAD on All pre-packaged goods intended for retail sale in relation to which it is required - Revenue was of the view that “Exercise Equipments” are not displayed in sales outlets or sold from the sales outlets in a pre-packaged condition - applicability of provision of Chapter II of Standards of Weight and Measure (pre-packaged commodity) Rules, 1977 - HELD THAT:- The appellant had not placed any material to substantiate that the imported goods were intended for retail sale.
The Tribunal in the case of POOJA HARDWARE VERSUS COMMISSIONER OF CUSTOMS (IMPORT), NHAVA SHEVA [2014 (12) TMI 23 - CESTAT MUMBAI] has denied the benefit of exemption Notification No. 29/2010, Cus., (supra). In that case, the aluminum profiles, hardware for furniture fittings though imported in pre-packed form, but since the same were not meant for retail sale under the provisions of Legal Metrology Act, 2019 and rules framed there under, the exemption benefit was denied - In the present case, it is already observed that the appellant had not produced any evidence to show that the imported goods are intended for retail sale and thus, the benefit of exemption is not available.
There are no reason to interfere with the impugned order - appeal dismissed.
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2019 (1) TMI 2019
Recovery of dues by auction of assets - petitioners submits that data relevant for finding out how valuation of properties has been arrived at is not furnished and therefore he is not in position to effectively advance the case of his clients - HELD THAT:- Papers show that there have been 8 rounds of auction on various dates starting from 18/10/2017 till 18/9/2018. Respondent No.2 submits that in first round of auction the price disclosed by respondent No.3 company was itself accepted and accordingly 90% of it was worked out as reserve price. He also has explained how that price is required to be scaled down thereafter.
53 properties are still to be auctioned, we direct Respondent No.1 and 2 to permit representative of petitioners along with their advocate to inspect the valuation papers in relation to those properties - As 15 auctions have already been completed, we permit successful auction purchasers to complete the transaction and to take possession. However, same shall be subject to further orders of this Court in the matter.
In relation to remaining 53 properties though respondent Nos.1 and 2 may take necessary preparatory steps, actual auction shall not be conducted until further orders - List the matter for further consideration on 29/1/2019.
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2019 (1) TMI 2018
TP Adjustment - payment of corporate management charges - HELD THAT:- We find that the TPO has verbatim lifted the findings given in A.Y 2009-10 in so far as this issue is concerned and nowhere has he whispered about any distinguishing fact. Therefore, we do not find any force in the contention of the ld. DR. We find that the Tribunal in assessee’s own case on identical issue held that what the TPO has done in the present case is to hold that the assessee ought not to have entered into the agreement to pay royalty/ brand fee, because it has been suffering losses continuously. So long as the expenditure or payment has been demonstrated to have been incurred or laid out for the purposes of business, it is no concern of the TPO to disallow the same on any extraneous reasoning. As provided in the OECD guidelines, he is expected to examine the international transaction as he actually finds the same and then make suitable adjustment but a wholesale disallowance of the expenditure, particularly on the grounds which have been given by the TPO is not contemplated or authorised - Thus we are of the considered opinion that corporate management charges should be allowed as such - we direct the AO to delete the adjustment.
Adjustment made in business support segment - Comparable selection - HELD THAT:- Rejection of companies as functionally different from the assessee business.
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2019 (1) TMI 2017
Deduction u/s 80IA - HELD THAT:- The first substantial question of law is covered by the earlier orders of this Court in the assessees' own case [2012 (8) TMI 809 - MADRAS HIGH COURT].
Deduction of Bad debts - claim was disallowed on the ground that the debts have been taken over from the sister concerns voluntarily only as a measure of support to it and knowing fully well that the same was irrecoverable - HELD THAT:- We find, as a matter of fact, that the Tribunal has taken note of the position that the Memorandum and Articles of Association permitted the assessee to carry on the business of money lending and the transactions in question have been held to be in the realm of business activity.
There is no dispute raised before us on this factual position. In the light of the same, the second substantial question of law is also answered in favour of the assessee and against the Revenue.
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2019 (1) TMI 2016
Payment of interest (on refund claim) under Section 35FF of Central Excise Act, 1944 as made applicable to UT, Chandigarh - HELD THAT:- Learned counsel for the respondents prays for time to seek instructions.
Adjourned to 26.02.2019.
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2019 (1) TMI 2015
Seeking direction to respondent not to interfere with the functioning of the club and not to make any frequent raid or book cases for playing rummy in the club of the petitioner - contention raised is that the petitioner and the members of the club are entitled to carry on lawful activities within their premises and there should not be any interference or harassment from the Police Authorities as long as their activities are not in violation of Sections 7 and 8 of the Kerala Act - game of rummy is a game of skill or chance or not.
Whether the game of rummy, which depends to a substantial degree upon the exercise of skill, comes within the stigma of Sections 7 and 8 of Kerala Act?
HELD THAT:- The judgments of the Apex Court (Constitution Bench) in STATE OF BOMBAY VERSUS RMD. CHAMARBAUGWALA & ANR. ADVOCATE-GENERAL OF MYSORE [1957 (4) TMI 55 - SUPREME COURT] and RMD. CHAMARBAUGWALLA VERSUS THE UNION OF INDIA [1957 (4) TMI 56 - SUPREME COURT] had held that gambling is not a trade and as such, is not protected under Article 19(1)(g) of the Constitution of India. It was further held that the competitions, which involve, substantial skill are not gambling activities. Such competitions are business activities, the protection of which is guaranteed by Art.19(1)(g) of the Constitution.
Sections 7 and 8 of the Kerala Act is not exactly similar to Sections 3 and 4 of the Hyderabad Gambling Act referred to in Satyanarayana's case [1967 (11) TMI 109 - SUPREME COURT]. In para 8 of the judgment, it is explicitly made clear that the Apex Court concurred with the views of the High Court that the prosecution failed to prove in the said case that the club was used as a common gambling house and the presumption arising under Section 7 of the Hyderabad Gambling Act was successfully repelled by the evidence which has been led even on the side of the prosecution. The corresponding provision to Section 7 of the Hyderabad Gambling Act is Section 6 of the Kerala Act - In Sugathan v. State of Kerala and another [2018 (1) TMI 1713 - KERALA HIGH COURT]], a Division Bench of this Court held that two preconditions are required in order to conduct a proper search by a detecting officer within the meaning of Section 5 of the Act- firstly, his reason to believe that the said place is used as a 'common gaming house', and; secondly, he has to record his reasons to entertain such a belief.
Thus, the club is used as a gaming house for the purpose of playing rummy for stakes and all the persons physically present there are found playing rummy, then they are certainly accused in the eye of law provided the detecting officer has complied with Section 5 of the Kerala Act before making such raid or inspection in the club.
Coming to the offences stipulated under Sections 7 and 8 of the Kerala Act, the learned Amicus Curiae pointed out that under Section 14A of the Kerala Act, the Government may, if they are satisfied that in any game the element of skill is more predominant than the element of chance, by Notification in the Gazette, exempt such game from all or any of the provisions of this Act, subject to such restrictions and conditions as may be specified in the notification. Admittedly, no notification was issued by the Government, exempting the game of rummy for stakes - so far as the activity of the club is within the framework of law, the same shall not be interdicted by the Police on flimsy grounds. However, this shall not be a bar for the Police to take appropriate action to ensure that no illegal activities involving money transactions are being pursued in the club and its premises under the cover of playing rummy or “pullyvally” or “pannimalathu” etc.
Petition disposed off.
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2019 (1) TMI 2014
Valuation of imported goods - wet dates - rejection of declared value as being unfit for human consumption - required parameters as per Food Safety and Standards Authority of India Act, 2006 (FSSAI); Rules and Regulations, 2011 not met - Confiscation - redemption fine - penalty - HELD THAT:- The appellant is a hapless importer of wet dates and before he could enjoy the fruit the same was ordered to be re-exported. It is not the case of the Revenue that the item sought to be imported is covered by Section 111 of the Customs Act, 1962, nor it is found that the Revenue is justifying in terming the same as improper import. The exporter sitting outside the taxable territory of India has sent the items packed in such a manner which was without the knowledge or information to the assessee and only upon landing did the authority as well as the appellant come to know that the impugned goods though not prohibited was still hit by FSSAI.
There was no prohibition in the first place to import wet dates but the additives/preservatives used perhaps made it improper under Section 25 of FSSAI. In view of the above, it will only add insult to the injury if the quantity of redemption fine and the penalty imposed is sustained and consequently the same are further reduced as a restraint, to Rs. 2,00,000/- and Rs. 1,00,000/- respectively.
Appeal is therefore partially allowed.
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2019 (1) TMI 2013
Furnishing of Bank Guarantee - whether it is possible for the appellant to condone the initial bank guarantee being given for an admittedly incorrect period of 6 months? - HELD THAT:- Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court.
It did not advert to the main point in question, but instead focused on supposed contradictions made in an affidavit filed by the appellant in the High Court. Having gone through the affidavit, there are no such contradiction. It is also necessary to advert to the final relief given by the High Court. If, for the reason given by the High Court, the bid of the Respondent No. 2 had to be rejected, it cannot be understood as to how Respondent No. 2 can be brought back in the event that Respondent No. 1 does not agree to carry out the work for the lower bid amount of Respondent No. 2.
Appeal disposed off.
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2019 (1) TMI 2012
Settlement of dues - HELD THAT:- The parties have entered into a Settlement Agreement dated 29.01.2019 before the Delhi High Court Mediation and Conciliation Centre thereby settling all their disputes.
Binding the parties to the terms of the settlement, the present petition is disposed of.
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2019 (1) TMI 2011
Recovery of demand by Customs Authorities - petitioner’s grievance inter alia is that the respondents have till date not passed any final orders in the four appeals pending before the Commissioner of Customs (Appeals) against the four Orders-in-Original - HELD THAT:- Having regard to the fact that the appeals have been pending for the the last four years, the Commissioner of Customs (Appeals) is hereby directed to finalise the hearing and pass final order within eight weeks. Till making a final order, the Customs authorities shall not enforce the demand.
Petition allowed.
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2019 (1) TMI 2010
Revision u/s 263 - As per CIT assessee was allowed deduction u/s 35AD by the AO without proper verification whether orders passed u/s 143(3) are erroneous in so far as it is prejudicial to the interest of the Revenue? - HELD THAT:- It is settled law that to revise an assessment order, the CIT should be satisfied that the order of the A.O. is erroneous in so far as it is prejudicial to the interest of the Revenue. We find that during the proceedings u/s 263 of the Act, the assessee has filed all the details before the CIT, but he has failed to consider the same. Without bringing on record as to how the non-consideration of the claim u/s 35AD has caused prejudice to the interest of revenue, he has remitted the matter to the file of the A.O with a direction to re-do the assessment after examining the claim u/s 35AD in detail. Therefore, according to us, the CIT has failed to fulfil the twin conditions u/s 263 of the Act for making the revision.
The Hon’ble Madras High Court in the case of CIT vs. G.R. Tangamaligai [2002 (10) TMI 73 - MADRAS HIGH COURT] has held that in the absence of any finding that there is loss of revenue, interference u/s 263 is not justified.
Hon’ble Delhi High Court in the case of ITO vs. D.G. Housing Projects Ltd [2012 (3) TMI 227 - DELHI HIGH COURT] has held that the Commissioner cannot remand the matter to the Assessing Officer to decide whether the finding recorded are erroneous without a finding that the order is erroneous and how that is so.
Commissioner has not examined and decided as to how the order is prejudicial to the interest of revenue but has directed the Assessing Officer to decide the aspect, which is not permissible. Decided in favour of assessee.
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2019 (1) TMI 2009
Seeking decree of possession of flat - seeking temporary order and injunction against the defendant no.1, their servants and agent from creating any third party rights for redevelopment or otherwise in respect of the suit flat - section 9A of the Code of Civil Procedure, 1908 - HELD THAT:- A perusal of the record ex-facie indicates that a plea of jurisdiction raised by the defendant in the written statement and in the affidavit in reply on the premise that the defendant claims to be a tenant / gratuitous licensee and thus the said issue cannot be decided by this Court is not a bonafide plea but is a dishonest plea. No such plea was ever raised by the defendant even in the earlier round of litigation. The Cooperative Court has passed an order directing the society to hand over possession of the flat to the plaintiff if the plaintiff would have given an indemnity to occupy the suit flat himself. That part of the order passed by the Co-operative Court was admittedly not set aside by the Maharashtra State Co-operative Appellate Court.
The Hon'ble Supreme Court in case of RAVEESH CHAND JAIN VERSUS RAJ RANI JAIN [2015 (2) TMI 1386 - SUPREME COURT] has after construing Order XII Rule 6 of the Code of Civil Procedure, 1908 has held that a bare perusal of the said provision makes it clear that it confers wide discretion on the Court to pass a judgment at any stage of the suit on the basis of admission of facts made in the pleading or otherwise without waiting for the determination of any other question which arose between the parties - It is held that since the said provision permits the passing of judgment at any stage without waiting for determination of other questions, it follows that there can be more than one decree that may be passed at different stages of the same suit. The principle behind Order XII Rule 6 is to give the plaintiff a right to speedy judgment so that either party may get rid of the rival claims which are not in controversy.
The Maharashtra State Co-operative Appellate Court held that the appeal thus filed by the society was not tenable. The Cooperative Appellate Court accordingly directed the society to consider the claim of the plaintiff herein on merits. In the operative part of the said order, the Maharashtra State Co-operative Appellate Court dismissed the Appeal No.41 of 1983 filed by Mr.A.Rajam and also the Appeal No.208 of 1983 filed by the society - The rights in the flat and the share certificate in the suit flat vests in the plaintiff and thus the defendant society cannot claim any right, title contrary to the order passed by the Co-operative Court, Maharashtra State Co-operative Appellate Court and this court in respect of the suit flat. The plaintiff has thus made out a case for grant of relief insofar as possession of the suit flat is concerned in this notice of motion under Order 12 Rule 6 of the Code of Civil Procedure, 1908 on the basis of various admissions in the pleadings and various orders binding on parties insofar as judgment for recovery of possession.
The defendant society is directed to handover the vacant and peaceful possession of the flat to the plaintiff within four weeks from today and shall comply with this order within the same period - Application disposed off.
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2019 (1) TMI 2008
Assessment of trust - Exemption u/s 11 - non deduction of tds - Tribunal held that 40% of professional charges paid to doctors through bearer cheques (60% paid by A/c. payee cheques) without deducting TDS cannot be disallowed u/s. 40(a)(ia) of the Act as the provisions of Section 11 of the Act was applicable to the assessee - HELD THAT:-. Section 40(a)(ia) of the Income Tax Act would be applicable to the amount chargeable under the head “Profit and gain of the business or profession”. Section 11 is with regard to the income from property held for charitable or religious purpose.
Subsequently, an explanation was inserted which would come into effect from 01.04.2019 by the Finance Act, 2018 which would clearly indicate that the application under Clause(a) or Clause(b), the provisions of sub-clause(ia) of clause (a) of Section 40 and sub-sections (3) and (3A) of Section 40A, shall, mutatis mutandis, apply as they apply in computing the income chargeable under the head “Profits and gains of business or profession”. Therefore it clearly indicates that the same would stand applicable only from 01.04.2019. Therefore, the contention of the Revenue cannot be accepted. Hence, we hold that the Tribunal was justified in holding the said issue in favour of the Assessee and against the revenue.
Whether the Tribunal was correct in holding that professional fee paid to Apollo Hospital for managing and running BGS Medical Foundation would not attract Section 194J and Section 40(a)(ia) of the Act as the provisions of Section 11 of the Act was applicable to the assessee? - On the same analogy, with reference to the amendment in Section 11(6) of the Act amended by Finance Act No.2 of 2014, the amendment was made and deducted from the assessment year 2015-16. In the instant case, the assessment would be with effect from 1st April 2019. Therefore, on this ground also, we do not find any material to interfere in the Order passed by the Tribunal. Consequently, the second substantial question of law is answered in favour of the Assessee and against the Revenue.
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2019 (1) TMI 2007
Offence under Prevention of Money Laundering Act - bail application - applicant did not surrender before the court - HELD THAT:- Application seeking exemption from filing certified copies of the impugned orders is allowed.
Issue notice.
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