Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 6053 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
8 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Transfer Pricing) Appeal
Pronouncement Date
01-05-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Assessment Year
2012-2013
Appeal Filed On
09-08-2018
Judgement Text
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
