SHRI DANDI SEWA ASHRAM,ONKARESHWAR vs. INCOME TAX OFFICER EXEMPTION , BHOPAL
Facts
The assessee, Shri Dandi Sewa Ashram, a charitable trust registered u/s 12A/12AA, filed its ITR for AY 2017-18 declaring NIL income but failed to file Form 10B/10BB. The CPC processed the return u/s 143(1) and raised a demand, which was upheld by the AO after rejecting the assessee's rectification application u/s 154, and subsequently by the CIT(A) who dismissed the first appeal due to the mandatory nature of Form 10B filing for exemption. The assessee filed the Form 10B belatedly on 07.06.2025, after the CIT(A)'s order, claiming the delay was due to a mistake by their CA.
Held
The Tribunal condoned the delay in filing the second appeal. It held that the assessee should not be penalized for the CA's mistake in belatedly filing Form 10B, especially since the audit was completed on time and the form was eventually filed. Therefore, the tribunal set aside the impugned order and remanded the matter back to the Assessing Officer for de novo consideration of the belatedly filed Form 10B, with a caution to the assessee to adhere to procedural timelines in the future.
Key Issues
Whether the exemption claimed by a charitable trust under sections 11 and 12 of the Income Tax Act can be denied solely due to the belated filing of Form 10B, especially when the audit report was prepared on time and the form was eventually submitted, and if the CIT(A) erred in dismissing the appeal without considering condonation of delay.
Sections Cited
253, 250, 154, 143(1), 10, 11, 12, 12A, 12AA, 119(2)(b), 288, 139, 246A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI B.M. BIYANI & SHRI PARESH M JOSHI
Per Paresh M Joshi, J.M.:
This is an Appeal filed by the Assessee under section 253 of
the income tax Act 1961,[ herein after referred to as the Act
for the sake of convenience & brevity] before this tribunal as
and by way of a second appeal. The Assessee is aggrieved by
the order bearing Number:-ITBA/NFAC/S/250/2024-
25/1065627607(1) dated 13/06/2024 passed by the Ld. CIT
(A) u/s 250 of the Act, which is herein after referred to as the
“Impugned order”. The Relevant Assessment year is 2017-
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18 and the corresponding previous year period is from
01.04.2016 to 31.03.2017.
Factual Matrix
2.1 That as and by way of an order made u/s 154 bearing
number: - ITBA/COM/F/17/2021-22/1038273943(1) dated
30/12/2021 the Ld. AO had held as under which is
reproduced by us as below:-
“The assessee has e-filed its return of income for the A.Y. 2017-18 declaring total income at Rs. Nil on 30.03.2018 claiming exemption U/s 10/24) of the Act, whereas Form 108 or 1088 was not filed. The return of income was processed and intimation u/s 143(1) was issued to the assessee on 27.03.2019 by the CPC assessing total income at Rs.28,26,089/- and a demand of Rs.2,31,521/- was created. The assessee has filed an application u/s 154 dated 11.12.2021 through e-proceeding module and stated that:- "01) Demands have been created by CPC u/s 143(1)a for A.Y. 2014-15 and 2017-18. 02) Ours is Charitable Trust and 12A/12AA has been granted to us. Copy of certificate from Principal Commissioner of Income-tax, Bhopal is enclosed herewith. 03) But your honour has calculated the tax on the only Gross receipts. No deduction of expnses has been allowed by your honour. 04) It is, therefore request to your honour demand so created on exempted profit may please be cancel." On perusal of records, it is found that the assessee filed its return of income for the year under consideration belatedly on 30.03.2018 whereas Form 10B or Form 1088 was not filed. The due date of filing of ITR was 07.11.2017 for A.Y. 2017-18. The assessee has claimed exemption U/s 10(24) of the Act which is not applicable in his case and also he has not filed any form 108 or 10BB in case he wants to claim exemption U/s 11 or 10(23C)(via). Therefore, the return of income was correctly processed by the CPC determining total income at Rs.9,25,762/-, Hence, there is no mistake apparent from records i.e. Computation
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of income as well as computation of tax. In view of the above facts, the application u/s 154 of the Income Tax Act, 1961 is hereby rejected.”
The aforesaid order u/s 154 is hereinafter referred to as
the “impugned order made u/s 154 of the act” [The ROI
was processed and intimation u/s 143(1) was issued to the
assessee on 27/03/2019 by the CPC assessing total income
at Rs. 28,26,089/- and a demand of Rs. 2,31,521/- was
created.
2.2 That the assessee being aggrieved by the aforesaid
“impugned order made u/s 154 of the act” prefers the first
appeal u/s 246A of the act before the Ld. CIT (A) who by the
“impugned order” had dismissed the first appeal of the
assessee on the grounds and reasons stated therein. The
core grounds and reasons for the dismissal of the first appeal
were as under:-
“6. In the instant case, order u/s 154 of the Act was passed by the Assessing Officer disallowing the exemption claimed u/s 11 of the Act. The AO has in his order has stated that the assessee has filed a belated return on 30.03.2018 for the said assessment year, however, has not fled the audit report in Form 108. Accordingly. the AD rejected the claim off exemption and the addition made by AO, CPC was sustained by him. Now, the appellant has pleaded that the Jurisdictional Assessing Officer erred in rejecting its claim.
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The grounds of appeal raised by the appelant have been carefully examined The appellant in its written submissions has fled as under:
With respect to AY 2017-18, Assessee is registered us 124/12AA of the IT Act, 1961. Copy of Certificate from The Principal Commissioner of Income Tax Bhopal is enclosed. It is submitted that there was snake white ling ITR wherein Assessee has claimed exemption u/s 10(24) but it pertains to section f in ITR. Further we would like to submit that non filing of Audit report is for 108 is not an impediment for exemption claims. We would like to draw attention to the case law of Hari Gyan Pracharak Trust Vs DCIT (ITAT Ahmedabad) which states that non filing of Audit Report along with return of income is a procedural omission and cannot be an impediment in law in claiming the exemption. As such it is requested to consider the clerical mistake and accept the registration certificate for rectification order
The submissions of the appellant as above have been considered. Section 12A of the Act lays down certain conditions for the allowability of exemption u/s 11 & 12.
The subsection 1 of Section 12A prescribes that the provisions of Section 11 & 12 shall not apply in relation to the income of any trust or institution unless the conditions laid down thereunder are fulfilled. One of the mandatory conditions prescribed in Clause (b) is the audit of the books of accounts of trust or the institution and the filing of the report of such audit in Form 108 along with the return of income. The provisions of section 12A clause (b) are reproduced hereunder for easy reference: "12A (1) The provisions of section 11 and section 12 shall not apply in relation to the income of any trust or institution unless the following conditions are fulfilled, namely:-
[(b) where the total income of the trust or institution as computed under this Act without giving effect to the provisions of sections 11 and 12 exceeds the maximum amount which is not chargeable to income-tax in any previous year, the accounts of the trust or institution for that year have been audited by an accountant defined in the Explanation below sub-section (2) of section 288 and the person in receipt of the income furnishes along with the return of income for the relevant assessment year the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars, as may be prescribed:]"
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The conditions prescribed u/s 12A are mandatory in nature which can be deciphered from the use of the phrase "Shall not apply". Admittedly, in this case, the audit report in Form 108 has not been filed at all. Such Form has not been filed either along with the return of income or subsequent to it. Any delay in filing of the return or other forms can be condoned u/s 119(2)(b) of the Act. Further the CBDT, vide circular no. 10/2019 dated 22-05-2019, in paragraph 4 has vested the powers with the Commissioners of Income Tax to condone the delay in filing Form108. Accordingly, it becomes clear that the remedy available to the appellant is to file Form 108 and approach the Commissioner of Income tax for condonation of delay in filing of such Form 108. The relevant portions of circular no. 10/2019 issued by CBDT is reproduced hereunder:
CIRCULAR NO. 10 (F.NO.197/55/2018-ITA-1]
SECTION 12A, READ WITH SECTION 119 OF THE INCOME TAX ACT, 1961-CHARITABLE OR RELIGIOUS TRUST REGISTRATION OF CONDONATION OF DELAY IN FILING OF FORM NO. 10B FOR YEARS PRIOR TO ASSESSMENT YEAR 2018-19
CIRCULAR NO. 10 (F.NO.197/55/2018-ITA-1), DATED 22-5-2019
Under the provisions of section 12A of Income-tax Act, 1961 (hereafter 'Act) where the total income of a trust on institution as computed under the Act without giving effect to the provisions of section 11 and section 12 exceeds the maximum amount which is not chargeable to Income-tax in any previous year, the accounts of the trust or institution for that year have to be audited by an accountant as defined in the Explanation below sub-section (2) of section 288 and the person in receipt of the income is required to furnish along with the return of income for the relevant assessment your the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed.
As per Rule 17B of the Income-tax Rules, 1962 (hereafter 'Rules) the audit report of the accounts of such a trust or institution is to be furnished in Form No. 10B. As per Rule 12(2) of the Rules, such audit report is to be furnished electronically. The failure to furnish such report in the prescribed form along with the return of income results in dis-entitlement of the trust from claiming exemption under sections 11 and 12 of the Act.
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Representations have been received by the Board/field authorities stating that Form No. 10B could not be filed along with the return of income for AY 2016 17 and AY 2017-18. It has been requested that the delay in filing of Form No. 10B may be condoned. Previously, vide instruction in F.No. 267/482/77- IT(part), dated 9-2-1978, the CBDT had authorized the ITO to accept a belated audit report after recording reasons in cases where some delay has occurred for reasons beyond the control of the assessee. 4. Accordingly, in suppression of earlier Circular/Instruction issued in this regard, and with a view to expedite the disposal of applications filed by such trusts or institutions for condoning the delay in filing Form No. 108 and in exercise of the powers conferred under section 119(2) of the Act, the Central Board of Direct Taxes hereby directs that,
(1) The delay in filing of Form No. 108 for AY 2016 17 and AY 2017-18, in ail such cases where the Audit Report for the previous year has been obtained before the filing of return of income and has been furnished subsequent to the filing of the return of income but before the date specified under section 139 of the Act is condoned.
(ii) In all other cases of belated applications in filing Form No. 10B for years prior to AY 2018-19, the Commissioners of Income-tax are authorized to admit such applications for condonation of delay under section 119(2)(b) of the Act. The Commissioners will while entertaining such belated applications in filing Form No. 10B shall satisfy themselves that the assessee was prevented by reasonable cause from filing such application within the stipulated time.
1[Further, all such pending applications as well as applications received henceforth shall be disposed off preferably within three months from the end of the month in which the application is received.]
In the case of Association of Indian Panel board Manufacturer reported in [2022] 143 taxmann.com 418 (Ahmedabad ITAT), the Hon'ble ITAT held that wherever there was delay in filing Form No.10B, assessee was required to approach jurisdictional Commissioner/Director of Income-tax to condone delay in filing Form 10B and the Commissioner (Appeal) had no power to
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condone such delay as per section 119(2)(b). The relevant portion of the said judgment is quoted hereunder:
"Considering the hardship faced by the assessee, the CBDT issued Circular No. 7/2018, authorizing Commissioner of Income- tax, to admit belated application in Form No. 10 in respect of Assessment Year 2016-17 which were filed belatedly Thus, the finding of the Id. CIT(A) that, he has no power in condoning the delay in filing Form 10B is legally correct in law. As rightly argued by the Ld. D.R., the assessee seems to be consistently filing the above Form 10B belatedly, for which proper remedy left to the assessee is approaching the Administrative CIT, who is to condone the delay but not with filing appeal u/s. 250 of the Act. We do not find any infirmity in the order passed by the Ld. CIT(A) and it has open to the assessee to avail the appropriate legal remedy in accordance with Income-tax Act. We also further found that the case laws relied upon by the Ld. Senior Counsel will not be applicable to the present case, since in the case of Mayur Foundation cited (supra) wherein the Assessment year involved is 1980-81 and in the case of Xavier Kelavani Mandal (P.) Ltd. cited (supra) wherein the Assessment Year involved is 2006-07. In our considered view, filing of Form 10B is being mandatory because of the amendment made in Finance Act, 2015 with effect from 1-4- 2016 applicable for the Assessment Year 2016-17, Therefore the above case laws are clearly distinguishable to the facts of the present case. Thus, the grounds raised by the assessee are hereby rejected and the appeal filed by the Assessee is dismissed." 11. In the above circumstances, when the power to condone the delay has been vested with the Commissioner of Income tax and the appellant has chosen not to approach the said authority, the appeal before the undersigned has no merit. Hence, the ground of appeal raised by the appellant is treated as dismissed. 12. In the result, the appeal of the appellant is dismissed.”
2.3 The assessee being aggrieved by the “impugned order” has
preferred the instant second appeal before this tribunal and has
raised the following grounds of appeal in the form no. 36 against
the “impugned order” which are as under:-
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“1. The delay in filing the appeal may please condoned. The affidavit is enclosed herewith. The email address was given of the counsel who did not inform the assessee about the order. Since there was a reasonable cause, the delay in filing the appeal may kindly be condoned. 2. The Ld. AO has erred in rejecting the application u/s 154 and the Ld. CIT(A) NFAC has erred in maintaining the order. 3. The Ld. NFAC erred in not considering the judgment of the Hon. Tribunal in the case of Shri Vaishnav Polytechnic College vide ITA no. 469/IND/2018 wherein it has been held that only net income should be considered for taxation. 4. The Ld. CIT(A) NFAC has erred in upholding the order of the Ld. AO and not granting the exemption u/s 11 of the IT Act and not considering the judgment of the Hon. Tribunal in the case of Indore Contract Bridge Association. The addition may please be deleted. 5. The taxing of gross total income may please be deleted. 6. The assessee craves to amend, alter or delete any of the ground of appeal.”
Record of Hearing
3.1 The hearing in the matter took place before this Tribunal
on 12.02.2026 when the Ld. AR for & on behalf of the
Assessee appeared before us [as on earlier occasion on
08.01.2026 and on 29.01.2026 the matter was part heard
as this tribunal wanted few clarifications on the “affidavit”
and “ITR”]. The Ld. AR submitted that the “impugned
order” is bad in law, illegal and not proper. It therefore
deserves to be set aside. It was next submitted that the
registry has pointed out the delay of 303 days in filling the
instant second appeal. It was submitted that the “impugned
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order” is dated 13/06/2024 whereas instant appeal was
filed on 28/06/2025. It was submitted that the “impugned
order” was sent on email address incu556@gmail.com which
was of the assessee’s counsel. The counsel had not updated
the assessee in time and hence the delay took place.
Affidavit 17/01/2026 is finally placed on record rectifying
the earlier affidavit dated 12/06/2025 were in fact a mistake
had happened on email id. In the earlier affidavit dated
12/06/2025 it was stated that “impugned order” was sent
on dlmahoday24@gmail.com which was of the secretary of
the assessee trust whereas in the affidavit a rectified one it is
stated that email was of counsel i.e. incu556@gmail.com
where the impugned order was sent and that assessee was
not updated by the counsel. It was therefore prayed that
delay is not deliberate. The reason given is a bonafide one
and same may please be condoned by this tribunal in the
interest of justice and so also on ground that sufficient cause
is shown. Per contra the Ld. DR appearing for and on behalf
of the revenue contended that he leaves the issue of delay to
the wisdom of this tribunal. After perusing both the
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affidavits (supra) on issue of condonation of delay and so
also after hearing both the sides we are of the considered
opinion that cause of delay as presented to us is reasonable.
We do not see any deliberate negligence on the part of the
assessee in preferring the instant appeal belatedly. Sufficient
cause is shown. Accordingly we condone the delay. Appeal
admitted and taken up for hearing.
3.2 The Ld. AR has placed on the record of this tribunal PB
containing pages 1 to 67.A one pager chronological table.
ITR-7 for AY 17-18 bearing no: - 567739291300318. Our
attention was invited to PB Page 23 which is an “order u/s
154 of the act” dated 22/04/2025 same was read out.
Attention was invited to recovery letter dated 18/02/2025 on
page 16 of PB. Our attention was invited to ITR 7 ACK No: -
567739291300318 and on page 1 under caption “section
under which exemption claimed if any (see instruction
Para 11e)” section 10(24) is mentioned /claimed for AY 17-
The Ld. AR submitted it was claimed wrongly. Section
10(24) was not applicable as section was claimed. Basis page
2 of ITR-7 it was contended that assessee trust is registered
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u/s 12A/12AA under serial no. c (i) of ITR-7. Basis Page 4 of
ITR-7 it was contended that assessee trust is liable for
“audit” under the act. Name of the auditor signing the audit
report (AR) was one “CA Ankur Goyal” and date of audit
report is 05/09/2017. Date of furnishing the audit report is
22/03/2018. Basis Page 5 of ITR-7 it was contended that
aggregate income was Rs. 28,26,089/-. Application of income
was of Rs. 25, 94,568/-. Amount accumulated or set apart
for application not exceeding 15% was Rs. 2,31,521/-. It was
stated that on Page 5 of ITR-7 section 10(24) was not claimed.
3.3 The Ld. AR then submitted that the Ld. AO finding in the
“impugned order u/s 154” is wrong and incorrect. In ITR-7
10B report [mandatory audit report for trusts] claimed basis
page 4 of ITR-7. A little later Ld. AR stated that 10B was not
filed/ not obtained. Attention was invited to Page 9 of PB
showing balance sheet as on 31/03/2017 signed on
05/09/2017 by CA Ankur Goyal. Next our attention was
invited to PB Page 5 form no: - 10B bearing ACK no:-
123357100070625 [07/06/2025] filed on 07/06/2025
whereas date of impugned order of the Ld. CIT(A) is dated
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13/06/2024. The Reliance was placed on order of ITAT
Indore dated 18/04/2023 in ITA no:- 403/Ind/2022 in case
of Indore contract bridge association v/s CPC Bangalore Page
25-29 of PB. Basis Page 26 & 27 it was contended that audit
report therein u/s 10B was filed before filling appeal to CIT
(A). It was also contended that ITAT is a final fact finding
authority and assessment proceedings are in continuation in
this regard should be appreciated. Income is computed basis
gross amount receipt and not net amount attention was
invited to page 8 to 14 of PB.
3.4 Per contra the Ld. DR appearing for the revenue
submitted that ITR was processed u/s 143(1) of the act and
demand was created. Later the assessee filed an application
for rectification u/s 154 which culminated in the “impugned
order u/s 154 of the act”. The order u/s 154 is dated
30/12/2021. Till this stage also the assessee has not made
any attempt to file the form 10B (AR). Even before the CIT (A)
when the impugned order was passed on 13/06/2024 and
prior thereto form 10B was not filed. Even after expiry of one
year from 13/06/2024 the form 10B was filed on
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07/06/2025. The Ld. DR emphatically contended that if time
limit is to be reckoned from the Ld. AO impugned
rectification order dated 30/12/2021. There is a delay of
nearly 4 years. The delay is huge. No attempt made by
assessee to file at earlier point of time cases relied upon is
distinguishable perse on the facts and circumstance. Appeal
of assessee should be dismissed. With regard to alternative
argument of the Ld. AR that net income should be assessed
should not be considered in light of peculiar facts and
circumstances of the case. Provisions of the act must be
given meaning and assessee not to break or give a tainted
look to the statutory provision which is mandatory. In the
rejoinder argument the Ld. AR then fairly submitted that
mistake is on the part of CA and that CA of the assessee did
not file form 10B. It then by the Ld. DR that once audit
report is in place long ago it ought to have been filed, there
cannot be excuses. In sur rejoinder the Ld. AR submitted
that 12A and 80g registration of the assessee is in place and
valid. The hearing was concluded.
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Observations Findings & conclusions
4.1 We now have to decide the legality validity and the
proprietary of the “Impugned Order” basis records of the case
and Rival Contentions canvassed before us.
4.2 We have carefully perused the records of the case and have
heard the submissions.
4.3 We basis records of the case & after hearing & upon
examining the rival contentions of the Ld. AR & the Ld. DR
canvassed before us, are of the considered opinion that the
impugned order of Ld. CIT (A) needs our interventions at
second appellate stage as in the ultimate analysis of the
facts and circumstances of the facts and circumstances of
the case the position which has emerged is form no: - 10B
stands filed on 07/06/2025 though belatedly. The
substantive benefit of it must go to the assessee. The Ld.
AR after a detailed analysis of the case during the hearing
and after hearing the Ld. DR fairly stated that for mistake
of CA concerned the assessee should not suffer. The Ld. AR
has also demonstrated before us that all books of account
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including p/c a/c, income and Exp a/c balance sheet etc.
were in the place on 05.09.2017. Even in the ITR-7 there is
reference of audit report which was dated 05.09.2017 [Page
4 of ITR-7]. The ITR was filed on 30.03.2018 hence this
document [form 10B] was very much available and was
belatedly placed on record on 07.06.2025 [Page5 PB] which
date is prior to the filling of present instant appeal on
28.06.2025 before this tribunal. Under these peculiar facts
and circumstance we are of the considered opinion that the
ends of justice would be met if the “impugned order” is set
aside and matter is remanded back to the file of Ld. AO so
that he/she can examine the form 10B (AR) a fresh = (4.4).
Hence we set aside the “impugned order” as and by way of
remand back to the file of Ld. AO, with admonition to the
assessee trust that such leeway on account of mistake of CA
would not be given on any subsequent occasions. It should
not be forgotten that procedures and time limit are laid down
under the act to be followed and not to be flouted at whims
and fancy of assessee. Assessee is a trust and has a valid
certificate u/s 12A and 80g too meaning thereby that their
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aims, objects and operations are for the welfare of people at
large. In this circumstance we have set aside the impugned
order and have remanded the matter to Ld. AO on De novo
basis. This order should not be considered as binding
precedent for others to flout laws and procedures. The
assessee cannot fail to follow the time line which is essential
and vital for smooth functioning of tax administration. The
Ld. DR has made a “grievance” of it be it noted, by the
assessee trust. However the date of the audit report in ITR-
7(supra) is not questioned by the Ld. DR for revenue. i.e.
05.09.2017.
4.4 In the premises drawn up by us, we set aside the
“impugned order” as and by way of remand to the Ld. AO
with a direction to consider the form no:-10B(AR) and pass
suitable order on total income of the assessee after making
necessary due diligence and verification as he/she may deem
fit. The assessee is directed to cooperate with the department
of Income tax. Before parting we observe and say that for
mistake of CA/ counsel the assessee should not suffer and
substantive benefit accruing to assessee basis audit report
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10B whose filling is procedural requirement which up on
delay too can be condoned by the concerned authorities
under the act shows that delayed filing is directory in nature
and benefit of it cannot be denied. It is not a case of no
audit report at all on record. Core issue was not filling of it
only. Reference of it is in ITR-7.
5 Order
5.1 In the result the “Impugned order” is set aside as and by
way of remand back to the file of the Ld. AO with direction as
aforesaid.
5.2 In result appeal is allowed for statistical purpose.
Pronounced in open court on 27.02.2026.
Sd/- Sd/-
(BHAGIRATH MAL BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER
Indore Dated : 27 /01/2026 Patel/Sr. PS
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Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
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