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TMI Blog2017 (4) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer merely changed the head of income from ‘agricultural income’ to ‘income from other sources’. By changing the head of income alone, it cannot be said that the assessee was not having sufficient source of funds for making donations. The Commissioner of Income Tax (Appeals) has deleted the addition on the basis that the entire income has to be taken for the purpose of cash flow, whether income is assessed as agricultural income or it is assessed as income from other sources. We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in deleting the addition. - Decided against revenue - ITA No. 2041/PN/2014 - - - Dated:- 26-8-2016 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri M.K. Kulkarni For The Revenue : Shri Hitendra Ninawe ORDER PER VIKAS AWASTHY, JM : This appeal by the Revenue is directed against the order of Commissioner of Income Tax (Appeals), Kolhapur dated 25-08-2014 for the assessment year 2002-03. This is the second round of litigation before the Tribunal. Earlier, the Tribunal vide order dated 23-09-2011 while deciding bunch of 31 appeals including the appeal of assessee in ITA No. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reliance on his own order in the case of Shri Rajendra Malu, the main person of Malu Group decided on 01-08- 2014. In respect of donations the Commissioner of Income Tax (Appeals) held that even if part of agricultural sales was not accepted by the Assessing Officer as agriculture income, the Assessing Officer has assessed the same as income from other sources. The assessee had sufficient funds available for donation, whether from agricultural income for from other sources. Against the findings of Commissioner of Income Tax (Appeals), now the Revenue is in appeal before the Tribunal. 3. Shri Hitendra Ninawe representing the Department vehemently supported the findings of Assessing Officer on both the issues. The ld. DR contended that the assessee had allegedly obtained unsecured loan of ₹ 20 lakhs from Shri J.H. Maniyar. Shri J.H. Maniyar is stated to have income from export of software. However, Shri J.H. Maniyar has not been able to establish from documentary evidence the source of income from export. Further, the ld. DR stated that the assessee has allegedly claimed to have made donation of ₹ 17 lakhs to Tirupathi Devasthan. However, the assessee could not produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer made a detailed discussion in the order about the 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 the assessee. The Assessing Officer made addition of ₹ 20 lakhs in the hands of the assessee on protective basis. We do not find any merit of the submissions made by the ld. DR, which are primarily based on the observations of the Assessing Officer. The ld. Counsel for the assessee has drawn our attention to the order of Tribunal in the case of Shri Jugalkishor Maniyar Vs. ACIT (supra). The Tribunal in the order has held that Shri Jugalkishor Maniyar was engaged in the business of export of software and was deriving income there from. The relevant extract of the findings of the Tribunal in this regard are as under : 6.1 Against this decision of the Tribunal, the Revenue filed the Misc. Application, which was also dismissed by the Tribunal vide its order dated 25/07/2011. The Tribunal has given a finding of fact that the assessee has established the genuineness of the export of the software. The facts involved in all these years are also the same. All these years have been reopene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TPI to the assessee asking the assessee to furnish certain information. This letter is issued after the expiry when actually export had already taken place and also at the instance of the Assessing Officer as is apparent from para 6 of the letter dated 22/07/2009 written by the 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 the then dealing Officials in our Office have changed. You will appreciate that the sole reason behind sending our letter dated 3 rd January 2007 to the said STP Unit was to expedite proceedings initiated by your Office and nothing else. In fact, it is nothing but an 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 the Income Tax Officer (Inv.), Nagpur. As regards SOFTEX forms certified by our Office and the nature of information furnished by M/s Jai Hari Softech, we wish to state that certification of the said forms was done by the then concerned Officials in conformity with the requirements of SOFTEX forms as already explained in Para No.2 above. 6.2 In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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