IN INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE, BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . ITA Nos. 2043 to 2048 PN 2014 Assessment Years : 2001-02 to 2006-07 Asstt. Commissioner of Income Tax, Ichalkaranji Circle, Ichalkaranji, Distt.-Kolhapur ....... Appellant V s. Shri Rajendra Babulal Malu, Chandan 8th Lane, P Jaysingpur, Tal.-Shirol, Distt.-Kolhapur PAN : ABNPM0068L Respondent Assessee by : Shri M.K. Kulkarni Revenue by : Shri Hitendra Ninawe Date of Hearing : 17-10-2016 Date of Pronouncement :19-10-2016 ORDER PER VIKAS AWASTHY, JM : These six appeals by Revenue are directed against order of Commissioner of Income Tax (Appeals), Kolhapur dated 01-08-2014 common for assessment years 2001-02 to 2006-07. solitary issue raised by Department in all these appeals is against 2 ITA Nos. 2043 to 2048 PN 2014, A.Ys. 2001-02 to 2006-07 deleting of addition made u s. 68 of Income Tax Act, 1961 (hereinafter referred to as Act ) in impugned assessment years. 2. brief facts of case as emanating from records are : search and seizure u s. 132 of Act was conducted on 20-07-2005 at residential and business premises in case of Malu Group. assessee is one of members of Malu Group. Consequent to search, assessment orders were passed for impugned assessment years u s. 143(3) r.w.s. 153A(b) of Act. Assessing Officer during course of assessment proceedings inter alia made addition u s. 68 of Act on account of unexplained loans from Shri J.H. Maniyar. details of additions u s. 68 in assessment years under appeal are as under : Assessment year Amount 2001-02 7,38,00,000 - 2002-03 1,88,40,000 - 2003-04 1,40,30,000 - 2004-05 5,50,00,000 - 2005-06 25,00,000 - 2006-07 2,60,00,000 - In first appeal, Commissioner of Income Tax (Appeals) deleted addition by placing reliance on order of Tribunal in case of Shri Jugalkishor Maniyar Vs. ACIT in ITA Nos. 99, 100 & 101 NAG 11 for assessment years 2001-02, 2002-03 & 2003-04 decided on 23-11-2012. 3 ITA Nos. 2043 to 2048 PN 2014, A.Ys. 2001-02 to 2006-07 Against findings of Commissioner of Income Tax (Appeals), Revenue is in appeal before Tribunal. 3. Shri M.K. Kulkarni appearing on behalf of assessee submitted at outset that issue raised in present set of appeals by Department is identical to appeal filed by Department in ITA No. 2041 PN 2014 titled Asstt. Commissioner of Income Tax Vs. Shri Venkateshwara Agricultural Farm for assessment year 2002-03 decided on 26-08-2016. Tribunal upheld findings of Commissioner of Income Tax (Appeals) and dismissed appeal of Department. ld. AR placed on record copy of order of Co-ordinate Bench of Tribunal in aforesaid case. 4. Shri Hitendra Ninawe representing Department vehemently supported findings of Assessing Officer in making additions u s. 68 of Act. ld. DR submitted that Commissioner of Income Tax (Appeals) has erred in deleting additions made u s. 68 of Act even though genuineness of transactions and creditworthiness of creditor (Shri J.H. Muniyar) was not established by assessee. However, ld. DR fairly admitted that identical issue was raised by Department in case of group assessee Shri Venkateshwara Agricultural Farm in ITA No. 2041 PN 2014 (supra) and Tribunal had dismissed appeal of Department vide order dated 26-08-2016. 5. Both sides heard. Orders of authorities below perused. Department has assailed findings of Commissioner of Income Tax 4 ITA Nos. 2043 to 2048 PN 2014, A.Ys. 2001-02 to 2006-07 (Appeals) in deleting additions made u s. 68 of Act. Assessing Officer had made similar additions in all assessment years on ground that Shri J.H. Maniyar was not man of worth and had no sources for advancing money to assessee. We find that Co-ordinate Bench of Tribunal in case of Shri Venkateshwara Agricultural Farm (supra), one of assessee from Malu Group has upheld findings of Commissioner of Income Tax (Appeals) in deleting addition made u s. 68 of Act. In said case, addition was made on identical grounds. relevant extract of findings of Tribunal reads as under : 6. Assessing Officer had made addition of `20 lakhs in respect of unexplained loans received by assessee from Shri J.H. Maniyar. Assessing Officer had raised doubt over creditworthiness of lender. Although, loans were received by Demand Draft and banking channels yet Assessing Officer held that assessee has circulated its own unexplained funds through Shri J.H. Muniyar as loan. Shri J.H. Maniyar is engaged in business of export of software. Assessing Officer made detailed discussion in order about software export business of Shri J.H. Maniyar and finally concluded that Shri J.H. Maniyar has no such export income to lend money to assessee. Assessing Officer made addition of `20 lakhs in hands of assessee on protective basis. We do not find any merit of submissions made by ld. DR, which are primarily based on observations of Assessing Officer. ld. Counsel for assessee has drawn our attention to order of Tribunal in case of Shri Jugalkishor Maniyar Vs. ACIT (supra). Tribunal in order has held that Shri Jugalkishor Maniyar was engaged in business of export of software and was deriving income there from. relevant extract of findings of Tribunal in this regard are as under : 6.1 Against this decision of Tribunal, Revenue filed Misc. Application, which was also dismissed by Tribunal vide its order dated 25 07 2011. Tribunal has given finding of fact that assessee has established genuineness of export of software. facts involved in all these years are also same. All these years have been reopened by Assessing Officer on basis of survey 5 ITA Nos. 2043 to 2048 PN 2014, A.Ys. 2001-02 to 2006-07 conducted in premises of assessee on 07 03 2007 by Investigation Wing of Department and also fact that disallowance of exemption u s 10B has been made in assessment year 2004-2005, which was confirmed by CIT(A). thus, in our opinion, basis of reopening of all these assessment years is disallowance made by Assessing Officer in assessment year 2004-2005 as well as their findings given in survey report. We also noted that along with each and every invoice, through which export has been made by assessee, certificate issued by Dy. Director (Tech.) of STPI was attached. This certificate clearly states that software described were actually transmitted and export value declared by Exporter has been found to be in order and accepted by that authority. Once certificate is issued by STPI, there remains no doubt that export made by assessee stand duly verified by STPI, which is one of Government agency. This is settled law in view of decision of Hon'ble Supreme Court in case of Durga Das Rawat Mal 87 ITR 369 that apparent is real, onus is on person who alleges apparent is not real. We have gone through orders of authorities below but we do not find any evidence which may prove that export made by assessee was bogus. There had been survey in case of assessee but no specific material was being brought on record which may discharge onus of Revenue that assessee has not made export but has in fact brought his own funds at pretext of export being made. Whenever exports are to be made, assessee is bound to follow guidelines issued by STPI and has also to submit firms before RBI under FEMA along with certificate issued by STPI certifying value declared by exporter to be in order and accepted by STPI. This form has been filed along with each and every invoice under FEMA. It is not case where STPI has not to issue any certificate before export about declaration of export consideration by assessee. We do not find even single instance, which may prove that assessee had not complied with guidelines in this regard. Assessing Officer has mainly relied on letter dated 03 01 2007 issued by STPI to assessee asking assessee to furnish certain information. This letter is issued after expiry when actually export had already taken place and also at instance of Assessing Officer as is apparent from para 6 of letter dated 22 07 2009 written by Assessment. Director, STPI, Maharashtra to ACIT, Circie-Nagpur. This para reads as under: 6. As regards contents of para No.6 of your aforesaid letter, all then dealing Officials in our Office have changed. You will appreciate that sole reason behind sending our letter dated 3 6 ITA Nos. 2043 to 2048 PN 2014, A.Ys. 2001-02 to 2006-07 rd January 2007 to said STP Unit was to expedite proceedings initiated by your Office and nothing else. In fact, it is nothing but offshoot of Letter No. ITO(Inv.) NGP JHS 2006-07 dated 13.12.06 & Letter No. ITO(Inv.) NGP JHS 2006-07 dated 21.12.06 received by us from Income Tax Officer (Inv.), Nagpur. As regards SOFTEX forms certified by our Office and nature of information furnished by M s Jai Hari Softech, we wish to state that certification of said forms was done by then concerned Officials in conformity with requirements of SOFTEX forms as already explained in Para No.2 above. 6.2 In view of this fact, we do not find that there are any difference of facts as compared to assessment year 2004-2005 and in assessment year 2004- 2005 this Tribunal has categorically held that assessee has duly established genuineness of export of software by it during year under consideration. decision of coordinate Bench is binding on us. Respectfully following said decision, we set aside order of CIT(A) in all years and thus allow ground No. 5 to 13 of assessee and delete addition made by Assessing Officer u s 68 of Act and direct Assessing Officer to allow deduction to assessee u s 10B of Act. 7. perusal of order of Tribunal in case of Shri J.H. Muniyar shows that export of software carried out by him was genuine. assertions of Revenue casting doubt over software export business and creditworthiness of Shri J.H. Muniyar is without any basis. We find no merit in grounds raised by Revenue against deleting of addition by Commissioner of Income Tax (Appeals) on account of loan of `20 lakhs from Shri J.H. Muniyar. Accordingly, ground Nos. 1 to 4 raised in grounds of appeal are dismissed. 6. ld. DR has fairly admitted that facts in present set of appeals are identical to facts of case adjudicated by Tribunal in case of Shri Venkateshwara Agricultural Farm (supra). ld. DR has not been able to controvert findings of Tribunal in aforesaid case. Since, addition u s. 68 in present set of appeals are arising from same set of facts, we do not find any merit in 7 ITA Nos. 2043 to 2048 PN 2014, A.Ys. 2001-02 to 2006-07 appeals filed by Department. Accordingly, all appeals by Department are dismissed being devoid of any merit. 7. In result, all appeals of Revenue are dismissed. Order pronounced on Wednesday, 19th day of October, 2016. Sd - Sd - (R.K. Panda) ( Vikas Awasthy) ACCOUNTANT MEMBER JUDICIAL MEMBER Pune; Dated : 19th October, 2016 RK Copy of Order forwarded to : 1. Appellant. 2. Respondent. 3. CIT(A), Kolhapur 4. CIT-I II, Kolhapur CIT (Central), Pune 5.. DR, ITAT, B Bench, Pune. 6. Guard File. True Copy BY ORDER, Private Secretary, , ITAT, Pune Asstt. Commissioner of Income-tax, Ichalkaranji Circle, Ichalkaranji v. Rajendra Babulal Malu