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Income Tax Appellate Tribunal, ‘B’ BENCH : BANGALORE
Before: SHRI CHANDRA POOJARI & SHRI GEORGE GEORGE K
Per Chandra Poojari, Accountant Member These are cross appeals directed against the order of the CIT(A) dated 30/8/2017 for the assessment year 2013-14 to 2015-16.
The assessee has raised following grounds of appeal:- “1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.
The order of assessment passed u/s. 143[3] r.w.s 153A of the Act is bad in law and void-ab-initio in as much there was no valid search conducted in the premises of the appellant and consequently, the provisions of section 153A of the Act, have no application and therefore, the impugned order passed deserves to be cancelled.
2.1 Without prejudice to the above, there is no justification to issue the warrant to search the premises of the appellant as the conditions specified in terms of Sec. 132[1] of the Act did not exist and therefore the search action illegal and consequently the impugned assessment order founded thereon deserves to be cancelled.
Without prejudice to the above, the learned CIT[A] is not justified in sustaining the addition of Rs.1,01,34,000/- b~~ "n the alleged unexplained expenditure u/s. 69B of the Act, incurred by the appellant in respect of the lands purchased from Smt.Rekha Venugopal and Shri G.N.Venugopal, without appreciating that the appellant had explained the circumstances under which the seized sale agreement
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showing a higher consideration payable for the purchase of land was shown in the seized sale agreement, which has been unreasonably disbelieved and rejected under the facts and in the circumstances of the appellant's case.
3.1 The learned CIT[A] ought to have appreciated that factually there w4) no such payments made by the appellant as per the seized sale agreement and— in excess of the sale consideration as per the registered sale deeds executed by Smt. Rekha Venugopal and Shri. G.N.Venugopal, which has also been established by the appellant by filing an affidavit from the aforesaid vendors and therefore, the addition, ought not to have been sustained.
3.2 The learned CIT[A] ought to have further appreciated that the addition made by the learned A.O. was in gross violation of the principles of natural justice since the learned A.O. had relied upon certain alleged facts stated in the assessment order with regard to the sale of lands by Smt. Rekha Venugopat and Shri. G.N.Venugopal to certain other parties, which in any case was not relevant and hence, the reliance placed thereon to make an addition in the hands of the appellant, was misplaced.
3.3 Without prejudice to the above, the learned CIT[A] ought to have appreciated that the addition made was highly excessive and unreasonable especially since the A.O. has initially proposed to make an addition of Rs. 52,33,500/- as per the show cause notice issued to the appellant and ultimately has made an addition of Rs. 1,01,34,000/- and hence, the addition sustained by the learned CIT[A] ought to have been reduced substantially. 4. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies itself liable to be charged to interest u/s 234-B of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled.
For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays
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that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. “
The Revenue has raised the following grounds of appeal:-
“1. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) was right in deleting addition of Rs.20,27,43,299/- on the issue of depreciation on solar power plant while holding that the solar power plant was put to use in F.Y. relevant to A.Y. 2013-14?
Whether on the facts and in the circumstances of the case, the Ld. CIT(A) failed to appreciate the evidences relied upon by the Assessing Officer which clearly establishes that the asset was not put to use before 31.03.2013?
Whether on the facts and in the circumstances of the case, the Ld. CIT(A) erred in relying on the letter of Superintendent Engineer, Operations, APSPDCL, Ananthpur, who is no way connected with the transaction of supply of power to worker's colony as the supply was not passed through Electricity grid?
Whether on the facts and in the circumstances of the case, the Ld. CJT(A) also failed to appreciate the fact that M/s EMMVEE Photovoltaic Pvt. Ltd. to whom the assessee claims to have supplied power from 30.03.20 13 to 22.04.20 13 is also its own contractor who erected the solar plant and fact that the bills are raised for F.Y. 2012- 13 only and not for F.Y. 2013-14 itself proves that the invoices raised are self serving documents which cannot be held to be evidence of having asset put to use before31.03.2013.”
ITA No.2070/Bang/2017 (Assessee’s appeal)
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In assessee’s appeal, ground No.1 is general in nature which does not require any adjudication.
The assessee has not pressed ground Nos.2 and 2.1 before us and accordingly dismissed as not pressed.
Ground Nos.3 to 3.3 is with regard to sustaining of addition of Rs.1,01,34,000/- as unexplained expenditure. The assessee entered into agreement on 29/11/2012 with Smt. Rekha Venugopal for purchase of Rs.5 lakhs per acre. However, these lands were purchased for the value of Rs.50,000/- per acre vide sale deed dated 17/1/2013. On enquiry, it was submitted by the assessee that higher value has been shown in the agreement for the purpose of availing higher amount of loan from the Bank. The AO has not agreed with the contention of the assessee and he computed the difference between the sale value mentioned in the agreement and actual sale deed value contained at Rs.1,01,34,000/- as unexplained investment in land as follows:-
Addition on account of purchase of Land from Smt. Rekha Venugopal and Shri G.N.Venugopal - Rs. 1,01,34,000/- :-
- Regarding this issue, it is submitted that the assessee has purchased certain lands from the aforesaid Smt. Rekha Venugopal and Sri.G.N.Venugopal for the setting up of the Solar Power Plant. An agreement to sell dated 29/11/2012 was found and seized in course of search, which revealed that the assessee
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had agreed to purchase lands from the aforesaid 2 persons at the rate of Rs. 5,00,000/- per acre. However, under the sale deed dated 17/12/2012, the assessee purchased the lands at the rate of Rs. 50,000/- per acre.
- In course of the proceedings, the A.O. called upon the assessee to state as to why the unexplained investment of the assessee should not be computed on the basis of the sale agreement dated 29/11/2012. The assessee furnished his objections vide letter dated 24/11/2016 contending that the higher amounts were mentioned in the seized agreement to sell only with a view to raise a higher bank finance. Infact, this was the explanation that was tendered by the assessee even at the time of search itself. The assessee also furnished instances of lands sold by one Sri Nanjappa and others vide sale deed dated 27/01/2011 in the same vicinity showing that the market value of the land was only Rs.50,000 per acre. The assessee also furnished an affidavit from Smt. Rekha Venugopal, stating that the real sale consideration was only Rs.50,000 per acre. Thus, the assessee submitted that the seized sale agreement dated 29/11/2012 was not acted upon and that there was no justification to make any addition on this score presuming that the assessee has paid consideration on the basis of the aforesaid seized sale agreement. - The A.O. has rejected the aforesaid contentions advanced by the assessee on the ground that the sale instances furnished by the assessee was more than one and half years prior to the
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date on which the appellant acquired lands and hence, the same was not comparable. Furthermore, the A.O. has also observed that the Vendors Sri G.N.Venugopal and Smt.Rekha Venugopal, were also subject to search and seizure action and were assessed by her. In course of the assessment proceedings of Sri G.N.Venugopal, it was found that he had sold lands to M/s. Emmvee Energy Ltd., at the rate of Rs.5,00,000 per acre. Hence, the A.O. held that it was difficult to believe that the assessee purchased the said lands at Rs.50,000 per acre from the said vendors. In this view of the matter, the A.O. proceeded to make the impugned addition based on the extent of land of 22.52 Acres purchased by the assessee from the aforesaid persons by taking the sale value at Rs. 5,00,000/- per acre and deducting therefrom the sale consideration paid by the assessee in the sale deed executed by the Vendors.
- It is submitted that the impugned addition made is opposed to law and facts of the appellant's case on several counts. Firstly, it is submitted that there is absolutely no material found during the course of search to show that the appellant had made any payments to the aforesaid Smt. Rekha Venugopal and Sri G.N.Venugopal, in excess of the sale consideration as mentioned in the registered sale deeds. The assessee has explained the circumstances under which the seized agreement to sell was entered into setting out the purpose behind the execution of the same. The assessee has also filed evidence in the shape of an affidavit from Smt. Rekha Venugopal stating that
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she had sold lands to the assessee at the rate of Rs.50,000 per acre. It has been categorically mentioned by the aforesaid Vendor that she did not receive any consideration in excess of the aforesaid sum of Rs. 50,000/- per acre. The aforesaid affidavit of Smt. Rekha Venugopal, has not even been adverted to by the A.O. in the impugned order. Thus, the addition has been made in gross disregard of the evidence adduced by the assessee and by presuming that the assessee had made certain payments in terms of the seized sale agreement. It is prayed that the addition made is therefore purely on suspicion and surmise, assumption and presumption and hence, the same needs to be deleted. - The second submission of the assessee is that the aforesaid addition has been made in gross violation of the principles of natural justice. This is because, the ld. A.O. has not put to the assessee in course of the assessment proceedings the details of the lands sold by Sri G.N.Venugopal to M/s. Emrnvee Energy Pvt. Ltd. Thus, the assessee was not in a position to make any submissions on this issue in course of the assessment proceedings. It is submitted that an addition made in violation of the principles of natural justice is a nullity and the same cannot be upheld having regard to the ratio of the following decisions and hence, the same requires to be deleted: [1] ANDAMAN TIMBER INDUSTRIES reported in 127 DTR 241 [SC] [2] KISHINCHAND CHELLARAM reported in 125 ITR 713 [SC] [3] Colonisers reported in 41 lTD 57 [Hyd] [SB] [4] H.R.MEHTA reported in 138 DTR 217 [Born]
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On appeal, the CIT(A) observed that the Affidavit filed by Smt. Rekha Venugopal before the AO cannot be relied on, wherein it was mentioned that sale value mentioned in the sale agreement dated 29/11/2012 was not real consideration. Further, it was observed that Shri Rekha Venugopal and Shri G.N Venugopal are land lords holding more than 100 acres of land and they sold similar lands to M/s Emmevee Energy Ltd., during the year under consideration for Rs.5 lakh per acre. Considering the comparable cases, the AO was justified in referring the value mentioned in sale agreement at Rs.5 lakh per acre and brining the difference mentioned in sale agreement and sale deed as unexplained investment and sustained the addition. Against this, the assessee is in appeal before us. Before us, the ld.AR submitted that in the course of search, an agreement to sell dated 29/11/2012 entered into by the assessee with the aforesaid Smt. Rekha Venugopal was found and seized. As per this seized agreement to sell, the assessee had agreed to purchase agricultural lands at the rate of Rs. 5,00,000/- per acre under the circumstances that have already been explained. The assessee had purchased 11 Acres 63 cents of agricultural lands from the aforesaid Smt. Rekha Venugopal under the sale deed dated 17/12/2012. It is submitted that the correct sale consideration for the purchase of agricultural lands was mentioned in the registered sale deeds, which was at the rate of Rs. 50,000/- per acre.
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In course of the assessment proceedings, the A.O. vide letter dated 15/11/2016 called upon the assessee to state as to why the unexplained investment of the assessee should not be computed on the basis of the sale agreement dated 29/11/2012 at Rs.52,33,500/-, which is as follows :
Land Purchased as per absolute sale deed Dated 17.12.2012 is 11.63 Acres
Cost of land of 11.63 acres is 11.63 * 5,00,000 Rs. 58,15,000/-
Cost of land paid as per absolute Sale deed Dated 17.12.2012 Rs. 5,81,500/- ------------------ Difference Rs. 52,33,500/- -------------------
The assessee furnished his objections vide letter dated 24/11/2016 contending that the higher amounts were mentioned in the seized agreement to sell only with a view to raise a higher bank finance. In fact, the explanation tendered by the assessee even at the time of search itself. The assessee also furnished instances of lands sold by one Sri Nanjappa and others vide sale deed dated 27/01/2011 and by Smt. Bharathi vide sale deed dated 17/02/2011 in the same vicinity showing that the market value of the land was only Rs.50,000 per acre.
The ld.AR submitted that the assessee had also furnished the sale deed dated 17/12/2012 under which he had purchased 5 Acres 89 cents of land from Sri G.N.Venugopal for the Solar Plant and another
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sale deed dated 02/03/2013 from Smt. Rekha Venugopal for purchase of 5 Acres of land in which also, the market value of the property was Rs.50,000 per acre.
The ld.AR further submitted that the assessee also furnished an affidavit dated 24/11/2016 from Smt.Rekha Venugopal, stating that the real sale consideration for the sale of the agricultural lands was only Rs.50,000 per acre. In the said affidavit dated 24/11/2016 duly sworn on oath before the Notary public Smt. Rekha Venugopal, who had executed the agreement to sell dated 29/11/2012 stated that the agreement was entered into to solely to assist the appellant to obtain a higher bank loan.
Thus, the ld.AR reiterated that the seized sale agreement dated 29/11/2012 was not acted upon and that there was no justification to make any addition on this score presuming that the assessee has paid consideration on the basis of the aforesaid seized sale agreement.
The A.O. has rejected the aforesaid contentions on the ground that the sale instances furnished by the assessee was more than one and half years prior to the date on which the assessee acquired lands and hence, the same was not comparable. Furthermore, the A.O. has also observed that the Vendors Sri G.N.Venugopal and Smt.Rekha Venugopal, were also subject to search and seizure action and were assessed by her. In course of the assessment proceedings of Sri G.N.Venugopal, it was found that he had sold lands to M/s. Emmvee
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Energy Ltd., at the rate of Rs.5,00,000 per acre. Hence, the learned A.O. held that it was difficult to believe that the assessee purchased the said lands at Rs.50,000 per acre from the said vendors. In this view of the matter, the A.O. proceeded to make the impugned addition based on the extent of land of 22.52 Acres purchased by the assessee from the aforesaid persons by taking the sale value at Rs. 5,00,000/- per acre and deducting therefrom the sale consideration paid by the assessee in the sale deed executed by the Vendors. However, the A.O. has not brought to the notice of the assessee any of these facts rebuttal.
The ld.AR submitted that the impugned addition made is opposed to law and facts of the assessee’s case on several counts. Firstly, it is submitted that there is absolutely no material found during the course of search to show that the assessee had made any payments to the aforesaid Smt. Rekha Venugopal and Sri G.N.Venugopal, in excess of the sale consideration as mentioned in the registered sale deeds. The assessee has explained the circumstances under which the seized agreement to sell was entered into setting out the purpose behind the execution of the same. The assessee has also filed evidence in the shape of an affidavit from Smt. Rekha Venugopal stating that she had sold lands to the assessee at the rate of Rs.50,000 per acre. It has been categorically mentioned by the aforesaid Vendor that she did not receive any consideration in excess of the aforesaid sum of Rs. 50,000/- per acre. The aforesaid affidavit of Smt. Rekha Venugopal, has not even been adverted to by the A.O. in the impugned order. Thus, the addition has been made in gross disregard of the
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evidence adduced by the assessee and by presuming that the assessee had made certain payments in terms of the seized sale agreement. The ld.AR prayed that the addition made is therefore purely on suspicion and surmise, assumption and presumption and hence, the same needs to be deleted.
The ld.AR is reiterated related to the second submission of the assessee that the aforesaid addition has been made in gross violation of the principles of natural justice because, the A.O. has not put to the assessee in course of the assessment proceedings the details of the lands sold by Sri G.N.Venugopal to M/s. Emmvee Energy Pvt. Ltd. Thus, the assessee was not in a position to make any submissions on this issue in course of the assessment proceedings. It is submitted that an addition made in violation of the principles of natural justice is a nullity and the same cannot be upheld having regard to the ratio of the following decisions and it is also prayed that the same needs to be deleted:
[1] ANDAMAN TIMBER INDUSTRIES reported in 127 DTR 241 [SC] [2] KISHINCHAND CHELLARAM reported in 125 ITR 713 [SC] [3] Colonisers reported in 41 ITD 57 [Hyd] [SB] [4] H.R.MEHTA reported in 138 DTR 217 [Bom]
The ld.AR mentioned that without prejudice to the above, it is submitted that the assessee is unable to state whether the lands sold by the aforesaid Sri G.N.Venugopal are comparable and whether the lands are located in the same vicinity as well. It is submitted that
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there is always a difference in the transaction costs between corporate and individuals and merely because the lands were sold to the aforesaid company at Rs. 5,00,000/- per acre does not warrant the presumption that the assessee also acquired the lands at that rate.
In this view of the matter also, it is submitted that the impugned addition made is opposed to law and facts of the assessee’s case and consequently, the ld.AR urged that the asssessee’s case may please be considered for favorably.
On the other hand, ld.DR relied on the order of the CIT(A).
We have heard both the parties and perused the materials on record. In this case, the assessee entered into sale agreement with Smt. Rekha Venugopal for purchase of land at Rs.5 lakhs per acre. However, the sale deed shows the sale value of Rs.50,000/- per acre. The explanation given by the assessee is that sale value shown in the sale agreement is at Rs.5 lakhs is only for the purpose of availing higher amount of loan. However, we find that adjacent land situated to the land sold by Smt. Rekha Venugopal to M/s Emmvee Energy Ltd., is for Rs.5 lakhs per acre. This was brought on record by the AO by referring the sale deed of M/s Emmvee Energy Ltd., executed by the same owner to the assessee. On this, the assessee was unable to give any convincing reply to show that how she sold the adjacent land for Rs. 5 lakh per acre. Being so, it cannot be said that the assessee has purchased a land at Rs.50,000/- per acre from Smt.
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Rekha Venugopal and Shri G.N Venugopal, the property situated next to the property of M/s Emmvee Energy Ltd., Being so, in our opinion, the explanation offered by the assessee is not having any basis. Hence, the lower authorities are justified in confirming the addition made by the AO on this count. Accordingly, this ground of appeal of the assessee is rejected and dismissed.
The next ground of appeal of the assessee is with respect to levy of interest u/s 234B, which is consequential and mandatory in nature and does not require any adjudication.
In the result, the appeal of assessee is dismissed.
ITA No.2104/Bang/2017 (Revenue’s appeal)
The crux of the ground with regard to allowing of depreciation on solar plant, the facts of the case are that the assessee claimed depreciation on installation of solar plant on the reason that it was put to use. This was denied by the AO on the reason that solar plant was ready but it was not actually put to use. Accordingly, depreciation on solar plant was denied. The ld.AR submitted before the CIT(A) that the synchronized of the solar plant with grid with regard to the date on which the solar plant has been put to use. The contention of the ld.AR is that the solar plant was erected and approved for energisation of electrical equipment by the Chief Electrical Inspector, Government of Andhra Pradesh on 30/3/2013.
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Disallowance of depreciation - Rs.20,27,43,229/- 23. The assessee had claimed depreciation on the Solar Plant that was installed during the year. The A.O. has denied the depreciation so claimed by the assessee taking the view that the aforesaid asset was not put to use during the year under appeal. The following table shows chronology of events is relevant for appreciation of the contentions of the assessee :- --- space left intentionally ---
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During the course of asst. proccedings, the aforesaid chronology of events was not properly appreciated by the A.O. The A.O. proceeded to hold that the assessee has put the Solar Plant to use only on the date of synchronization of the Solar Plant with the grid on 22/04/2013. In coming to the aforesaid conclusion, the A.O. has considered both the letters of the Superintending Engineer, Operations, dated 19/03/2013 and 27/04/2013 referred to above. According to the A.O., the assessee had complied with the IREDA guidelines and connected the Solar Plant to the grid on 22/04/2013 and this means that
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the Solar Plant was put to use by the assessee only on 22/04/2013.
It is relevant at this stage to set out the meaning of the term "synchronization", as has been clarified in the letter of the Superintending Engineer, Operations, dated 27/04/2015. The aforesaid term means to operate with exact co-incidence with time or rate. The term "commissioning" is also defined in the said letter of being in good working order and ready for operation. Thus, "synchronization" of the Solar Plant with the grid results in the production of the power being evacuated to the grid and the grid is able to receive the power. However, the fact that the Solar Plant is not yet connected to the grid does not mean that the aforesaid asset has not been put to use by the appellant as it is not necessary that the appellant must necessarily connect to the grid as there can be captive consumption of the Solar Plant in which case there will be no question of synchronization at all.
It is submitted that the A.O. took the view that the Solar plant can be said to have been put to use only when it gets synchronized with the grid and not earlier. The A.O. rejected the contentions of the assessee that the solar plant was completed as early as 29/03/2013 and was generating power right from 20/03/2013 itself. The A.O. rejected the bills raised by the appellant for supply of power dated 30/03/2013 and 31/03/2013 as self-serving documents.
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It is submitted that the assessee is entitled to depreciation for the year under consideration in as much as, the appellant has completed the works of installation and commissioning of the said solar plant. Infact, the Chief Electrical Inspector to the Government of Andhra Pradesh has categorically certified that the solar plant of the assessee could be energized on 30/03/2013 itself after inspection of the facilities. Thus, the fact that the plant is ready and energized and was generating power cannot be doubted at all. Infact, with a view to remove all manner of doubt, the assessee also furnished a certificate from the Director of Electrical Safety dated 28/11/2016 stating that the work was completed and the installation was inspected on 30/03/2013 and statutory approval was issued by the Chief Electrical Inspector to the Governemnt of Andhra Pradesh. This letter of the Director of Electrical Safety dated 28/11/2016 has totally been ignored by the AO in the impugned order.
Against this, Revenue is in appeal before us.
We have heard both the parties and perused the materials on record. In our opinion, the CIT(A) has taken a concrete view which is based on the facts of the case and in the present asst. year under consideration, the assessee generated solar power and sold the same to M/s EMMVEE Photovoltaic Power Pvt. Ltd., at Rs.18,276/- and thus, the amount has been offered for taxation by entering it in the profits and loss account. The assesse has also produced invoices for sale of power to M/s EMMVEE
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Photovoltaic Pvt. Ltd., and the usage of solar plant was established. The decision of Hon’ble Karnataka High Court in the case of CIT Vs. Chamundeshwari Sugar Ltd., 309 ITR 326 (Kar) is squarely applicable, wherein it was distinguished the earlier judgment in the case of DCIT Vs. Yellamma Dasappa Hospital 290 ITR 353 and observed that hospital has brought certain machinery and no evidence was placed to prove its use during the asst. year but claimed depreciation. However, in the present case solar plant was put to use and power was generated. In our opinion, solar plant was used for generation of electricity. Thus the date on which the asset has been put to use is the date on which power was produced and not when it supplied electricity to the grid. Once the electricity was generated and it was sold, the depreciation of such solar plant cannot be denied. Accordingly, we do not find any infirmity in the order of the CIT(A). The same is confirmed. The appeal of the Revenue is dismissed.
In the result, the appeal of the Revenue is dismissed.
In the combined result, the both the appeals of the assessee and of the Revenue are dismissed
Order pronounced in the open court on 27th January, 2022. Sd/- Sd/- (GEORGE GEORGE K) ( CHANDRA POOJARI) Judicial Member Accountant Member Bangalore, Dated, 27th January, 2022
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/ vms /
Copy to:
The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order
Asst. Registrar, ITAT, Bangalore.
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Date of Dictation ……………………………………… 2. Date on which the typed draft is placed before the dictating Member ……………………….. 3. Date on which the approved draft comes to Sr.Ps .……………………………. 4. Date on which the fair order is placed before the dictating Member …………………………. 5. Date on which the fair order comes back to the Sr. P.S. ………………….. 6. Date of uploading the order on website…………………………….. 7. If not uploaded, furnish the reason for doing so ………………………….. 8. Date on which the file goes to the Bench Clerk ………………….. 9. Date on which order goes for Xerox & endorsement…………………………………… 10. Date on which the file goes to the Head Clerk ……………………. 11. The date on which the file goes to the Assistant Registrar for signature on the order ………………………………. 12. The date on which the file goes to dispatch section for dispatch of the Tribunal Order …………………………. 13. Date of Despatch of Order …………………………..