N. J. Devani Builders Pvt. Ltd., Ahmedabad V. The CIT-III, Ahmedabad

ITA 345/AHD/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9688 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 09-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 06-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIBHA BHALLA
• Keywords: Revision of order
• Section: 263

Judgement Text

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