Dy. Comm. of Income-tax, Ichalkaranji Circle, Ichalkaranji V. Shree Venkateshwara Pan Masala Industries (P) Ltd., Kolhapur

ITA 1541/PUN/2011

• Counselvise Citation: 154124514 RSA 2011
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 01-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KISHOR PHADKE SMT S PRAVEENA
• Keywords: Unexplained cash credit; Search and seizure; Reason to believe
• Section: 10B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER, AND SHRI R.S.PADVEKAR, JUDICIAL MEMBER. ITA.NO.1541/PN/2011 (ASSTT. YEAR : 2002-03) DCIT, ICHALKARANJI CIRCLE, ICHALKARANJI. .. APPELLANT VS. SHREE VENKATESHWARA PAN MASALA INDUSTRIES (P) LTD., 355, SANGLI KOLHAPUR BY-PASS ROAD, DHARANGUTTI, KOLHAPUR. .. RESPONDENT PAN: AACCS5553D ASSESSEE BY : SHRI KISHOR PHADKE DEPARTMENT BY : SMT.S.PRAVEENA DATE OF HEARING : 23.04.2013 DATE OF PRONOUNCEMENT : 29.04.2013 ORDER PER G.S.PANNU, AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A), KOLHAPUR, DATED 23.09.2011 WHICH, IN TURN, HAS ARISEN FROM THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICE R U/S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT T HE ACT) PERTAINING TO THE A.Y. 2002-03. 2. ALTHOUGH THE REVENUE HAS RAISED MULTIPLE GROUNDS OF APPEAL BUT THE SOLITARY GRIEVANCE IS WITH REGARD TO THE AC TION OF THE CIT(A) IN DELETING AN ADDITION OF RS.1,05,60,000/- REPRESE NTING LOAN FROM SHRI JUGAL KISHORE MANIYAR TREATING THE SAME AS UNE XPLAINED CASH CREDIT U/S.68 OF THE ACT. 3. IN BRIEF, THE FACTS ARE THAT THE RESPONDENT ASSE SSEE IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPAN IES ACT, 1956 AND IS INTER-ALIA ENGAGED IN THE MANUFACTURE OF PAN MASALA AND GUTKHA. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION , ASSESSEE 2 FILED A RETURN OF INCOME ON 07.10.2002 DECLARING TO TAL INCOME OF RS.19,15,210/-. ON 20.07.2005, A SURVEY ACTION U/S .133A OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE SIMULTANEOUS TO A SEARCH AND SEIZURE ACTION U/S.132 (1) OF THE ACT IN THE MALU GROUP OF CASES AT JAYSINGPUR AND PUNE. AS A RESULT OF THE SURVEY ACTION U/S.133A OF THE ACT, THE ASSESSING OF FICER HAD REASON TO BELIEVE THAT CERTAIN INCOME ESCAPED ASSESSMENT W ITHIN THE MEANING OF SECTION 147 OF THE ACT AND ACCORDINGLY, A NOTICE U/S.148 OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE ON 06.07.2007 REOPENING THE ASSESSMENT FOR THE ASSESSMENT YEAR 20 02-03. IN THE CONSEQUENTIAL ASSESSMENT FRAMED U/S.143(3) R.W.S. 1 47 OF THE ACT DATED 30.12.2008, THE TOTAL INCOME HAS BEEN ASSESSE D AT RS.2,07,11,210/- WHICH INTER-ALIA, INCLUDED AN ADDITION OF RS.1,05,60,000/- AS UNEXPLAINED CASH CREDIT INVOKIN G SECTION 68 OF THE ACT. THE AFORESAID ADDITION IS THE SUBJECT MAT TER OF THE APPEAL OF THE REVENUE BEFORE US, AS THE SAME HAS SINCE BEE N DELETED BY THE CIT(A). 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT THE ASSESSEE HAD RECEIVED UNSECURED LOAN OF RS .1,05,60,000/- ON VARIOUS DATES DURING THE YEAR UNDER CONSIDERATIO N FROM ONE SHRI JUGAL KISHORE H. MANIYAR OF NAGPUR AND THE TOTAL UN SECURED LOAN RAISED FROM THE SAID CREDITOR AS ON 31.03.2002 WAS RS.2,32,10,000/-. THE ASSESSING OFFICER NOTICED T HAT THE SAID CREDITOR WAS SON-IN-LAW OF THE MALU FAMILY, WHO ARE THE DIRECTORS OF THE ASSESSEE COMPANY. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE GENUINENESS OF THE IMPUGNED INTEREST-FREE LOAN RAIS ED FROM THE CREDITOR SHRI JUGAL KISHORE MANIYAR. IT TRANSPIRE S THAT THE CREDITOR EXPLAINED THAT THE LOAN WAS ADVANCED TO THE ASSESSE E COMPANY OUT OF HIS EARNINGS FROM SOFTWARE DEVELOPMENT AND EXPOR TS. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE SOURCE OF EARNINGS OF THE CREDITOR SHRI JUGAL KISHORE MANIYAR. AS PER T HE DISCUSSION IN PARA 6.3 OF THE ORDER OF THE ASSESSING OFFICER, IT IS BROUGHT OUT THAT THE SAID CREDITOR CLAIMED TO HAVE EARNED EXPORT EAR NINGS FROM DEVELOPMENT AND SALE OF SOFTWARE AND SUCH INCOME WA S CLAIMED TO 3 BE EXEMPT U/S.10B OF THE ACT. THE ASSESSING OFFICE R NOTICED THAT THERE WAS A SURVEY ACTION ON THE BUSINESS PREMISES OF THE SAID CREDITOR AT NAGPUR AND FOR THE DISCREPANCIES NOTED BY THE ASSESSING OFFICER, IT WAS CONCLUDED THAT THE SAID CREDITOR HA D NOT CARRIED OUT ANY ACTIVITY OF SOFTWARE DEVELOPMENT AND EXPORT AS CLAIMED BY HIM, AND THEREFORE, THE ASSESSING OFFICER CONCLUDED THAT THE CREDITOR DID NOT HAVE ANY GENUINE EXPORT EARNINGS TO LEND MONEY TO THE ASSESSEE. THE ASSESSING OFFICER ALSO NOTICED THAT IT WAS PECULIAR THAT THE CREDITOR WAS NOT CHARGING ANY INTEREST ON LOANS ADVANCED. IN THIS MANNER, THE ASSESSING OFFICER INFERRED THAT THE CREDITOR WAS NOT ABLE TO EXPLAIN THE SOURCES OF ADVANCING THE LO AN TO THE ASSESSEE AND AS PER THE ASSESSING OFFICER, THE FUND S IN QUESTION WERE NOT THE EXPORT EARNINGS OF THE CREDITOR BUT WE RE UNACCOUNTED FUNDS OF MALU FAMILY, INCLUDING THAT OF THE ASSESSE E COMPANY, WHICH HAVE BEEN INTRODUCED IN THE BOOKS OF ACCOUNT IN A CIRCUITOUS MANNER. IN CONCLUSION, THE ASSESSING OFFICER HELD THAT THE ASSESSEE WAS NEITHER ABLE TO PROVE THE CAPACITY OF THE CREDI TOR TO ADVANCE THE IMPUGNED SUMS AND NOR THE GENUINENESS OF THE LOAN T RANSACTIONS AND, THEREFORE, THE IMPUGNED CREDIT OF RS.1,05,60,0 00/- WAS LIABLE TO BE ASSESSED AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. THE CIT(A) HAS SINCE DELETED THE ADDITION PRIMARILY ON THE GROUND THAT THE INABILITY OF THE CREDITOR TO SUBSTANTIATE ITS E XPORT EARNINGS IS NOT MATERIAL IN DISBELIEVING HIS CREDITWORTHINESS TO AD VANCE THE IMPUGNED LOAN TO THE ASSESSEE. THE CIT(A) NOTICED THAT ASSESSEE HAD FURNISHED THE CONFIRMATION FROM THE CREDITOR, T HE BALANCE SHEET AND THE CORRESPONDING BOOKS OF ACCOUNT OF THE CREDI TOR IN SUPPORT OF THE LOAN ADVANCED. THE CIT(A) HAS ALSO REFERRE D TO THE ASSESSMENT ORDER IN THE CASE OF SHRI JUGAL KISHORE MANIYAR, THE CREDITOR FOR A.Y. 2002-03 AND THE ORDER OF THE CIT( APPEALS) DATED 29.03.2011 WHEREIN THE EXPLANATION OF THE ASSESSEE THAT HE WAS DERIVING INCOME FROM EXPORTS WAS DISBELIEVED AND TH E AMOUNT OF FOREIGN REMITTANCES WERE BROUGHT TO TAX U/S.68 OF T HE ACT. THE ASSESSING AUTHORITY AS WELL AS THE CIT(APPEALS) IN THE CASE OF THE CREDITOR DID NOT ACCEPT THE POSITION THAT THE TRANS ACTIONS OF EXPORT UNDERTAKEN BY THE CREDITOR WERE GENUINE. THE CIT( APPEALS) 4 CONSIDERED ALL THE AFORESAID AND BY WAY OF FOLLOWIN G DISCUSSION HAS DEEMED IT FIT TO DELETE THE ADDITION IN THE PRESENT CASE: 22. I FIND THAT THE REASONS GIVEN BY THE ASSESSING OFFICER ARE NOT CONCLUSIVE. SHRI MANIYAR HAD SHOWN A SUBSTANTIAL AMOUNT OF INCOME AS HIS INCOME FROM SOFTWARE EXPORTS. THAT INCOME WAS REFLECTED IN THE RETURN OF INCOME FILED BY SHRI MANIYAR AND DEDUCTIO N UNDER SECTION 10B WAS CLAIMED AGAINST IT. IT WAS OU T OF THAT INCOME WHICH WAS SHOWN IN THE BOOKS OF ACCOUNT AND DECLARED IN THE RETURN OF INCOME THAT LOANS WER E ADVANCED TO VENKATESHWARA PAN MASALA INDUSTRIES LTD . HENCE, THIS IS A CASE WHERE THE SOURCES HAD ADMITTE D A PARTICULAR AMOUNT AS HIS INCOME. THAT PERSON IS REGULARLY ASSESSED TO TAX AND AN INCOME-TAX RETURN HAS ALSO BEEN FILED IN RESPECT OF SUCH RECEIPTS. ALL RE CEIPTS CAME THROUGH BANKING CHANNEL AND WAS THEREAFTER UTILIZED BY SHRI MANIYAR BY ADVANCING IT TO OTHER S ISTER CONCERNS OR TO THE MALU FAMILY. IN ASSESSMENT OF SH RI MANIYAR, THE GENUINENESS OF EXPORT OF SOFTWARE WAS DOUBTED AND ENQUIRIES WERE CONDUCTED WITH STPI OFFICIALS. VARIOUS OTHER ENQUIRIES WERE ALSO MADE A ND IT WAS CONCLUDED THAT THE INCOME SHOWN IN THE BOOKS OF ACCOUNT COULD NOT BE HELD TO BE THE INCOME FROM SOFTWARE EXPORTS. SINCE THOSE AMOUNTS WERE CREDITED IN THE BOOKS OF SHRI MANIYAR AND, THEREFORE, REFLECTED IN ITS ACCOUNTS, IT WAS TAXED AS UNEXPLAINED CASH CRED IT DURING COURSE OF ASSESSMENT FOR THE ASSESSMENT YEAR 2002-03. IT IS THIS MONEY WHICH HAS BEEN SHOWN BY SHRI MANIYAR IN HIS RETURN OF INCOME AND WHICH HAS BEEN TAXED AS UNEXPLAINED CASH CREDIT AND WHICH HAS BEEN CONFIRMED IN APPEAL THAT HAS BEEN FORWARDED TO THE APPELLANT AS LOANS. IN FACT, THESE LOANS ARE SH OWN OUTSTANDING IN THE BOOKS OF ACCOUNT OF THE APPELLAN T. THE ASSESSING OFFICER IS OF THE OPINION THAT SINCE SHRI MANIYAR HAD SHOWN BOGUS EXPORT INCOME, HE DID NOT HAVE THE CREDITWORTHINESS TO ADVANCE LOANS TO THE APPELLANT. ANOTHER FACTOR WHICH BORE HEAVILY IN THE MIND OF THE ASSESSING OFFICER WAS THAT THE LOAN WAS ADVANCED WITHOUT INTEREST. 23. IN MY CONSIDERED OPINION, THE FACT THAT SHRI MANIYAR HAS BEEN UNABLE TO PROVE THAT THE SAID INCOME WAS NOT FROM THE BUSINESS OF EXPORT OF SOFTWARE, WOULD NOT BE MATERIAL IN DOUBTING HIS CREDITWORTHINESS. HE HAS NOT DENIED THAT THE MONEY ADVANCED REPRESENTED HIS INCOME AND IN FACT HE HAS SHOWN IT AS SUCH IN THE RETURN OF INCOME. IT IS THE CLAIM OF DEDUCTION WHICH HAS BEEN DISALLOWED DUE TO THE FACT THAT HE COULD NOT PROVE THE GENUINENESS OF EXPORTS AND HENCE, THE ENTIRE AMOUNT HAS BEEN HELD TO BE TAXABLE IN THE HANDS OF SHRI MANIYAR. ONCE TH E 5 INCOME HAS BEEN TAXED IN THE HANDS OF A PARTICULAR PERSON, IT FORMS A PART OF HIS CAPITAL AND ITS DISBURSEMENT AS A LOAN TO A THIRD PART WOULD NOT MA KE THAT UNEXPLAINED IN THE HANDS OF THE THIRD PARTY. THERE SHOULD BE SOME MATERIAL ON RECORD TO SHOW THA T THE APPELLANT'S OWN MONEY WAS ROUTED THROUGH SHRI MANIYAR AND THAT IT WAS NOT OFFERED FOR TAX AT ANY STAGE OR WAS NOT SHOWN AS INCOME AT ANY STAGE BEFORE REACHING THE APPELLANT. SUCH EVIDENCE IS CONSPICUOUSLY ABSENT. HENCE, BECAUSE THE INCOME HAS BEEN OFFERED FOR TAXATION IN THE RETURN OF INCOME F ILED BY SHRI MANIYAR WHO HAD SHOWN IT IN HIS BOOKS, IT CANNOT BE SAID THAT THE SOURCE OF LOAN IS UNEXPLAIN ED. THAT SHRI MANIYAR HAD MADE A WRONGFUL CLAIM OF EXEMPTION OF THESE RECEIPTS AS TAX FREE INCOME UNDE R SECTION 10B WILL NOT BE OF MUCH CONSEQUENCE WHILE DEALING WITH THE NATURE OF LOAN IN THE HANDS OF THE APPELLANT. ONCE A PARTICULAR AMOUNT HAS BEEN BROUGH T TO TAX IN A PERSON'S HAND, IT CANNOT BE SAID THAT T HAT PERSON DOES NOT HAVE THE CREDITWORTHINESS TO ADVANC E OUT OF SUCH AMOUNTS TO THIRD PARTIES. FURTHER, THER E SHOULD BE SOME PROOF THAT THESE ARE UNEXPLAINED CREDIT IN THE HANDS OF THE APPELLANT AND THAT SHRI MANIYAR WAS JUST A CONDUIT. SUCH EVIDENCES ARE NOT PRESENT. IN THESE TYPES OF CASES, THE NORMAL EXERCI SE WHICH IS TAKEN IS THAT THE INCOME IS BROUGHT TO TAX SUBSTANTIVELY IN THE HANDS OF ONE PERSON AND PROTECTIVELY IN THE HANDS OF ANOTHER PERSON, WHO MA Y ALSO BE THE RECIPIENT OF THE SAME INCOME. IN THIS C ASE, THE ORIGINAL RECIPIENT IS SHRI MANIYAR AND THE INCO ME HAS BEEN TAXED IN HIS HANDS. SOME MONEY HAS THEN FLOWED INTO THE HANDS OF THE APPELLANT. THEREFORE, ALTHOUGH THERE CAN BE A DOUBT AS TO WHOSE INCOME IT ACTUALLY IS AND WHERE IT SHOULD BE TAXED, SINCE SHR I MANIYAR IS NOT DENYING THAT THE SAID MONEY REPRESEN TS HIS INCOME AND IS TAXED IN HIS HANDS, THERE IS NO S COPE OF TAXING THE SAME AS UNEXPLAINED IN THE HANDS OF T HE APPELLANT. IT HAS NEVER BEEN DOUBTED THAT THE RECEI PTS GIVEN AS LOANS TO THE APPELLANT WERE RECEIVED BY SH RI MANIYAR AND WAS SHOWN BY SHRI MANIYAR AS HIS INCOME . THIS FACT HAS NOT BEEN DOUBTED EVEN IN THE ASSESSME NT OF SHRI MANIYAR. HENCE, THE ADDITION MADE ON THIS C OUNT IS DELETED AND THE APPEAL IS ALLOWED. 5. THE AFORESAID REVEALS THAT AS PER THE CIT(APPEAL S), THE RECEIPT OF MONEY FROM THE CREDITOR IS THROUGH BANKING CHANN ELS AND IS NOT DISPUTED. AS PER THE CIT(APPEALS), THERE COULD BE A DOUBT AS TO WHOSE INCOME IT ACTUALLY IS AND WHERE IT IS TO BE T AXED. BUT THE CIT(APPEALS) HAS EMPHASIZED THAT THE CREDITOR SHRI JUGAL KISHORE MANIYAR HAS ACCEPTED THAT THE SAID MONEY REPRESENTS HIS INCOME 6 AND SAME HAS BEEN TAXED IN HIS HANDS BY WAY OF INVO CATION OF SECTION 68 OF THE ACT AND, THEREFORE, THERE WAS NO SCOPE OF TAXING THE SAME AGAIN AS UNEXPLAINED INCOME IN THE HANDS O F THE ASSESSEE. AGAINST THE AFORESAID ORDER OF THE CIT( APPEALS), THE REVENUE IS IN APPEAL BEFORE US. 6. BEFORE US, THE LD. REPRESENTATIVE FOR THE RESPON DENT ASSESSEE, AT THE OUTSET POINTED OUT THAT IN THE CASE OF THE C REDITOR SHRI JUGAL KISHORE MANIYAR, THE ISSUE RELATING TO THE DENIAL O F DEDUCTION U/S.10B ON THE EXPORT EARNINGS HAS SINCE BEEN ADJUD ICATED BY THE NAGPUR BENCH OF THE TRIBUNAL FOR A.YS. 2001-02, 200 2-03 AND 2003-04 VIDE ORDER IN ITA.NO.99, 100 AND 101/NAG/11 DATED 23.11.2012 AND ALSO FOR A.Y. 2004-05 VIDE ORDER IN ITA.NO.159/NAG/08 DATED 06.03.2009, COPIES OF THE S AID DECISIONS HAVE BEEN PLACED ON RECORD. THE LD. COUNSEL EMPHAS IZED THAT THE TRIBUNAL WAS SATISFIED THAT THE CREDITOR IN QUESTIO N DULY ESTABLISHED THE GENUINENESS OF THE SOFTWARE EXPORTS AND WAS HEL D ENTITLED FOR THE BENEFITS OF SECTION 10B OF THE ACT. IT WAS, T HEREFORE, CONTENDED THAT HAVING REGARD TO THE DECISIONS OF THE TRIBUNAL IN THE CASE OF THE CREDITOR SHRI JUGAL KISHORE MANIYAR, DATED 06.03.20 09 (SUPRA) AND 23.11.2012 (SUPRA), THE SOURCES OF ADVANCING LOANS TO THE ASSESSEE STOOD ESTABLISHED AND, THEREFORE, THE IMPUGNED ADDI TION MADE BY THE ASSESSING OFFICER WAS UNSUSTAINABLE. 7. THE LD. DR APPEARING FOR THE REVENUE, HAS NOT DI SPUTED THE AFORESAID FACTUAL MATRIX BROUGHT OUT BY THE LD. REP RESENTATIVE FOR THE ASSESSEE BUT RELIED UPON THE STAND OF THE ASSES SING OFFICER TO SAY THAT THE CREDITWORTHINESS OF THE CREDITOR WAS D OUBTFUL AND THE GENUINENESS OF THE TRANSACTION WAS NOT ESTABLISHED IN VIEW OF THE DOUBTFUL NATURE OF EXPORT EARNINGS OF THE CREDITOR. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE SUM AND SUBSTANCE OF THE DISPUTE LIES IN A SHORT COMPAS S IN AS MUCH AS THE ASSESSEE WAS FOUND TO HAVE RECEIVED UNSECURED L OANS DURING THE INSTANT YEAR TO THE TUNE OF RS.1,05,60,000/- FR OM ONE SHRI JUGAL KISHORE MANIYAR. THE ASSESSING OFFICER INVOK ED SECTION 68 OF 7 THE ACT AND IN TERMS THEREOF THE ASSESSEE IS REQUIR ED TO ESTABLISH THE IDENTITY, CREDITWORTHINESS OF THE CREDITOR TO A DVANCE MONIES TO THE ASSESSEE AND THE GENUINENESS OF THE TRANSACTION . THE ASSESSING OFFICER WAS SATISFIED WITH THE IDENTITY OF THE CRED ITOR BUT SO FAR AS THE CAPACITY OF THE PERSON TO ADVANCE LOAN AND THE GENUINENESS OF THE TRANSACTION WERE CONCERNED, THE SAME HAVE NOT B EEN FOUND TO BE SATISFACTORY BY THE ASSESSING OFFICER. THE PRIM ARY REASON WEIGHING WITH THE ASSESSING OFFICER WAS TO THE EFFE CT THAT THE SAID CREDITOR CLAIMED TO HAVE ADVANCED MONIES OUT OF ITS EARNINGS FROM DEVELOPMENT AND EXPORT OF SOFTWARE WHICH WERE CLAIM ED AS EXEMPT U/S.10B OF THE ACT, AND SUCH A CLAIM WAS NOT FOUND TO BE GENUINE FOR THE REASONS DESCRIBED IN PARA 6.3 OF THE ASSESS MENT ORDER. THE ASSESSING OFFICER HAS ALSO REFERRED TO THE SURVEY A CTION IN THE CASE OF THE CREDITOR WHO WAS PLACED AT NAGPUR. IN SUM AND SUBSTANCE, THE SOURCE OF INCOME OF THE CREDITOR WAS NOT ACCEPT ED AS GENUINE AND, THEREFORE, SECTION 68 OF THE ACT WAS INVOKED B Y THE ASSESSING OFFICER. WE FIND THAT THE CONCLUSION OF THE ASSESS ING OFFICER IN THE PRESENT CASE ALSO CORRESPONDED TO THE ASSESSMENTS F INALIZED BY THE ASSESSING OFFICER IN THE CASE OF THE CREDITOR SHRI JUGAL KISHORE MANIYAR FOR THE A.Y. 2002-03 AS WELL AS OTHER A.YS. 2001-02, 2002- 03 AND 2004-05. THE ASSESSING OFFICER IN THE CASE OF SHRI JUGAL KISHORE MANIYAR FOUND IT EXPEDIENT TO HOLD THAT THE RE WAS NO GENUINE EXPORT EARNINGS SO AS TO BE ELIGIBLE FOR DE DUCTION U/S.10B OF THE ACT. THE DISPUTE TRAVELLED TO THE TRIBUNAL WHEREIN FOR A.Y. 2004-05 VIDE ORDER DATED 06.03.2009 (SUPRA), AND IN A COMBINED ORDER FOR THE ASSESSMENT YEARS 2001-02, 2002-03 VID E ORDER DATED 23.11.2012 (SUPRA), THE TRIBUNAL HELD THAT THE CRED ITOR IN QUESTION HAD DULY ESTABLISHED THE GENUINENESS OF EXPORT OF S OFTWARE FOR THE RESPECTIVE YEARS AND WAS ALSO ELIGIBLE FOR THE CLAI M OF DEDUCTION U/S.10B OF THE ACT. THE SAID ORDERS OF THE TRIBUNA L ARE ON RECORD BEFORE US AND THERE IS NO MATERIAL OR EVEN AN ASSER TION BY THE REVENUE THAT THE AFORESAID DECISIONS OF THE TRIBUNA L HAVE BEEN ALTERED BY ANY HIGHER AUTHORITY. THEREFORE, HAVING REGARD TO THE AFORESAID DECISIONS OF OUR COORDINATE BENCH OF NAGP UR TRIBUNAL, WHICH CONTINUE TO HOLD THE FIELD, IT IS IMPERMISSIB LE FOR US TO AFFIRM 8 THE STAND OF THE ASSESSING OFFICER TO THE EFFECT TH AT THE EXPORT EARNINGS OF THE CREDITOR ARE NOT GENUINE SO AS TO H OLD THAT THE IMPUGNED LOANS ADVANCED TO THE ASSESSEE OUT OF SUCH EARNINGS ARE UNEXPLAINED AS PER SECTION 68 OF THE ACT. SINCE TH E GENUINENESS OF THE EXPORT EARNINGS OF THE CREDITOR HAS BEEN ACCEPT ED BY THE TRIBUNAL IN ITS ORDERS DATED 06.03.2009 (SUPRA) AND 23.11.2012 (SUPRA), THE OBJECTION OF THE ASSESSING OFFICER RAI SED IN THE INSTANT CASE ARE UNSUSTAINABLE. 9. IN VIEW OF THE AFORESAID WE, THEREFORE, FIND NO JUSTIFICATION TO UPHOLD THE STAND OF THE ASSESSING OFFICER AND ACCOR DINGLY THE ULTIMATE CONCLUSION OF THE CIT(APPEALS) IN DELETING THE ADDITION IS HEREBY AFFIRMED, ALBEIT ON A DIFFERENT GROUND AS D ISCUSSED ABOVE. 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF APRIL, 2013. SD/- SD/- ( R.S.PADVEKAR ) ( G.S.PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER GSPS PUNE, DATED THE 29 TH APRIL, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DCIT, ICHALKARANJI CIRCLE, ICHALKARANJI. 3. THE CIT(A), KOLHAPUR. 4. THE CIT, KOLHAPUR. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.