M/s.Quilon Medical Trust, Kollam V. ACIT, Kollam

CO 8/COCH/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9259 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 9 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 16-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M ANIL KUMAR
• Assessee Lawyers: IYPE MATHEW
• Keywords: Unexplained investment; Block assessment; Revenue expenditure
• Section: 132

Judgement Text

1 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN (AM) I.T.A NOS. 19 TO 21/COCH/2012 (ASSESSMENT YEARS 2007-08 TO 2009-10) A.C.I.T., CENT.CIR VS M/S QUILON MEDICAL TRUST KOLLAM MEDICITY, THATTAMALA KOLLAM PAN : AAATQ0108P (APPELLANT) (RESPONDENT) C.O. NOS 07 TO 09/COCH/2012 (ARISING OUT OF I.T.A NOS. 19 TO 21/COCH/2012) (ASSESSMENT YEARS 2007-08 TO 2009-10) M/S QUILON MEDICAL TRUST VS A.C.I.T., CENT.CIR. MEDICITY, THATTAMALA, KOLLAM KOLLAM PAN : AAATQ0108P (CROSS OBJECTOR) (RESPONDENT) REVENUE BY : SHRI M ANIL KUMAR ASSESSEE BY : SHRI IYPE MATHEW DATE OF HEARING : 13-11-2013 DATE OF PRONOUNCEMENT : 13-01-2014 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE APPEALS AGAINST THE RESP ECTIVE ORDERS OF THE CIT(A)-III, KOCHI DATED 17-11-2011 PERTAINING T O ASSESSMENT YEARS 2 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 2007-08 TO 2009-10. THE ASSESSEE FILED THE CROSS O BJECTIONS TO SUPPORT THE ORDERS OF THE CIT(A). THEREFORE WE HEARD THE A PPEALS AND THE CROSS OBJECTIONS TOGETHER AND DISPOSE OF THE SAME BY THIS COMMON ORDER. 2. LET US FIRST TAKE THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 2007-08. THE FIRST GROUND OF APPEAL IS WITH REGARD TO QUANTIFICATION OF UNACCOUNTED INVESTMENT FOR MAKING ADDITIONS U/S 69, 69A, ETC. WITHOUT REJECTING THE BOOKS OF ACCOUNT. 3. SHRI M. ANIL KUMAR, THE LD.DR SUBMITTED THAT THE CIT(A) FOUND THAT A DUTY WAS CAST UPON THE ASSESSING OFFICER TO REJECT THE BOOKS OF ACCOUNT IF HE / SHE ADOPTS OTHER METHODS FOR COMPUTATION OF TO TAL INCOME OF THE TRUST. IN THIS CASE, ACCORDING TO THE LD.DR, THE UNDISCLOS ED INVESTMENT WAS FOUND IN THE COURSE OF SEARCH OPERATION. ACCORDING TO TH E LD.DR, THE ASSESSEE TRUST INVESTED AN AMOUNT OF RS. 3,39,16,920 OUTSIDE THE BOOKS OF ACCOUNT FOR THE CONSTRUCTION OF THE BUILDING DURING THE YEA R UNDER CONSIDERATION. INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH OPERATION SHOWED THAT UNEXPLAINED INVESTMENT WAS MADE IN THE CONSTRUCTION OF HOSPITAL AND MEDICAL COLLEGE. HOWEVER, IN THE BALA NCE-SHEET AS ON 31-03- 2007 THE ASSESSEE HAS DISCLOSED ONLY AN AMOUNT OF R S.1,18,54,356. DURING THE COURSE OF SEARCH OPERATION A STATEMENT W AS RECORDED U/S 3 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 132(4) OF THE ACT. THE TRUSTEES, SHRI ABDUL SALAM AND SHRI A.A. SALAM ADMITTED THAT AN AMOUNT OF RS.5 CRORES EACH WAS DEC LARED BY THEM AS UNDISCLOSED INCOME FOR THE ASSESSMENT YEAR 2009-10. IN VIEW OF THE MATERIALS FOUND DURING THE COURSE OF SEARCH WHICH I NDICATED THE INVESTMENT OF FUNDS IN THE CONSTRUCTION OUTSIDE THE BOOKS OF A CCOUNT, ACCORDING TO THE LD.DR, THE ASSESSING OFFICER HAS RIGHTLY COMPUTED T HE UNDISCLOSED INCOME. EVEN THOUGH THERE IS NO SPECIFIC REFERENCE FOR REJE CTION OF BOOKS OF ACCOUNT IN THE ASSESSMENT ORDER, THE FACT REMAINS IS THAT B OOKS OF ACCOUNT WAS REJECTED AND THE INCOME WAS ESTIMATED ON THE BASIS OF THE SEIZED MATERIAL. THEREFORE, THE CIT(A) IS NOT CORRECT IN OBSERVING T HAT THE BOOKS OF ACCOUNT OUGHT TO HAVE BEEN REJECTED. 4. ON THE CONTRARY, SHRI IYPE MATHEW, THE LD.REPRES ENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE TRUST ESTABLIS HED AND MAINTAINED A HOSPITAL AND MEDICAL COLLEGE. A SEARCH WAS CONDUCT ED U/S 132 OF THE ACT IN THE PREMISES OF THE ASSESSEE TRUST. THE DEPARTM ENT CLAIMS THAT THEY HAVE FOUND INCRIMINATING MATERIALS WITH REGARD TO U NDISCLOSED INVESTMENT OUTSIDE THE BOOKS OF ACCOUNT. IF THAT IS SO, THE A SSESSING OFFICER IS EXPECTED TO SPECIFICALLY REJECT THE BOOKS OF ACCOUN T BEFORE PROCEEDING TO COMPUTE THE INCOME ON THE BASIS OF THE SEARCH MATER IAL. UNFORTUNATELY, THE ASSESSING OFFICER HAS NOT REJECTED THE BOOKS OF ACCOUNT. THEREFORE, 4 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSING O FFICER CANNOT TRAVEL BEYOND THE BOOKS OF ACCOUNT SINCE THE SAME WAS NOT REJECTED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CAREFULLY GONE THROUGH THE ORDER OF THE LOWER AUTHORITIES. DURING THE COURSE OF SEARCH OPERATION ON 06-01-2009 INCRIMINATING MATERIALS WAS FOUND WHICH DISCLOSED INVESTMENT OF UNDISCLOSED INCOME FOR CONS TRUCTION OF THE BUILDING. THE ASSESSING OFFICER FOUND THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SPENT AN AMOUNT OF RS.4,57,71,276. THE SEIZED MATERIAL QMT-97, 112, 114, 165, ETC. WAS CON SIDERED BY THE ASSESSING OFFICER TO COMPUTE THE TOTAL INVESTMENT I N THE BUILDING. HOWEVER, THE ASSESSEE HAS SHOWN THE INVESTMENT AS ON 31-03-2 007 AT RS.1,18,54,356. THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THE ASSESSEE TRUST INVESTED AN AMOUNT OF RS.3,39,16,920 OUTSIDE THE BOOKS OF ACCOUNT FOR CONSTRUCTION OF THE BUILDING. IF THIS IS SO, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS T O REJECT THE BOOKS OF ACCOUNT MAINTAINED IN THE COURSE OF REGULAR ACTIVIT Y. AS RIGHTLY SUBMITTED BY THE LD.REPRESENTATIVE FOR THE ASSESSEE, THE BOOKS O F ACCOUNT WERE NOT REJECTED BY THE ASSESSING OFFICER. THE CIT(A), HOW EVER, HAS NOT DELETED ANY ADDITION ON THAT BASIS. A CASUAL REFERENCE MAD E IN THE APPELLATE ORDER 5 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 BY THE CIT(A) WITH REGARD TO OBLIGATION OF THE ASSE SSING OFFICER TO REJECT THE BOOKS OF ACCOUNT BEFORE PROCEEDING TO ESTIMATE THE INCOME ON THE BASIS OF THE SEIZED MATERIAL MAY NOT PREJUDICE THE INTEREST OF THE REVENUE IN ANY WAY. THIS TRIBUNAL IS OF THE CONSIDERED OPINION TH AT IN THE ASSESSMENT PROCEEDINGS CONSEQUENT TO THE SEARCH, THE MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATION ALONG WITH THE BOOKS OF ACCOUNT MAINTAINED IN THE COURSE OF REGULAR ACTIVITY HAS TO BE TAKEN INTO CONSIDERATION. THEREFORE, THE OBSERVATION MADE BY THE CIT(A) WITH REGARD TO R EJECTION OF BOOKS OF ACCOUNT MAY NOT PREJUDICE THE INTEREST OF REVENUE I N ANY WAY. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LOWER AUTHORITY. THE SAME IS CONFIRMED. 7. THE NEXT GROUND OF APPEAL IS WITH REGARD TO PROV IDING OF ADEQUATE OPPORTUNITY TO THE ASSESSEE. 8. SHRI M ANIL KUMAR, THE LD.DR SUBMITTED THAT AT P ARAGRAPH 8.2 OF THE CIT(A)S ORDER, THE CIT(A) OBSERVED THAT SUFFICIENT OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE WHICH RESULTED IN DUPLICATION OF THE ADDITION. ACCORDING TO THE LD.DR, SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO REPRESENT THE MATTER BEFORE THE ASSESSING OFFICER. 6 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 9. ON THE CONTRARY, SHRI IYPE MATHEW, THE LD.RPERES ENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE RECEIVED THE P RE-ASSESSMENT NOTICE ON THE EVENING OF 21-12-2010. THE REPLIES WERE FIL ED IMMEDIATELY ON 27- 12-2010. ACCORDING TO THE LD.REPRESENTATIVE SIX DA YS PERIOD ALLOWED TO THE ASSESSEE WAS NOT SUFFICIENT TO EXPLAIN THE VARIOUS POINTS RAISED BY THE ASSESSING OFFICER. ACCORDING TO THE LD.REPRESENTAT IVE, 22 ND TO 27 TH DECEMBER, WERE HOLIDAYS FOR CHRISTMAS. THE ASSESSI NG OFFICER SENT A QUESTIONNAIRE OF 169 PAGES. ACCORDING TO THE LD.RE PRESENTATIVE, THIS PREJUDICES THE INTEREST OF THE ASSESSEE, THEREFORE, THE CIT(A) HAS RIGHTLY OBSERVED THAT SUFFICIENT OPPORTUNITY WAS NOT GIVEN. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CIT( A) FOUND THAT THE ASSESSING OFFICER SUO MOTU REJECTED THE OBJECTIONS FILED BY THE ASSESSEE WHICH WITNESSED IN THREE OR FOUR INSTANCES OF DUPLI CATION. THE FACT REMAINS IS THAT AN OPPORTUNITY WAS PROVIDED BY THE ASSESSIN G OFFICER ON 03-12-2010 AND 08-12-2010 AND ULTIMATELY, THE ORDER WAS PASSED ON 30-12-2010. THEREFORE, IF FURTHER TIME WAS GIVEN TO THE ASSESSE E THEY WOULD HAVE EXPLAINED THE INVESTMENT BEFORE THE ASSESSING OFFIC ER. AT THE VERY SAME TIME, WE HAVE TO TAKE INTO CONSIDERATION THE TIME C ONSTRAINT OF THE ASSESSING OFFICER. THERE IS A STATUTORY LIMIT FOR PASSING THE ASSESSMENT 7 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 ORDER. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS DONE EVERYTHING POSSIBLE WITHIN THE PRESCRIBED TIME BY AFFORDING AN OPPORTUNITY TO THE ASSESSEE. THEREFORE, THIS OBJEC TION OF THE ASSESSEE MAY NOT PREJUDICE THE ASSESSMENT PROCEEDINGS AT ALL . HENCE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITIES ON THIS ISSUE. 11. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ENH ANCEMENT OF INCOME ON ACCOUNT OF CREDIT MISMATCH TO THE EXTENT OF RS.1 61.62 LAKHS. 12. SHRI M. ANIL KUMAR, THE LD.DR SUBMITTED THAT TH E CIT(A) OUGHT TO HAVE ENHANCED THE INCOME TO THE EXTENT OF RS.161.62 LAKHS DUE TO MISMATCH OF THE CREDITS. THE LD.DR SUBMITTED THAT THE SUBMISSIONS MADE BY THE ASSESSING OFFICER WAS NOT CONSIDERED BY THE CIT(A). THEREFORE, THE CIT(A) COMMITTED AN ERROR IN NOT ENHANCING THE INCO ME. WE HEARD, SHRI IYPE MATHEW, THE LD.DR ALSO. 13. THE CIT(A) HAS DISCRETION TO ENHANCE THE INCOME ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. UNDER THE INCOME-TAX ACT, THE CIT(A) IS CONFERRED WITH A POWER WHICH IS CO-TERMINUS WITH TH AT OF THE ASSESSING OFFICER. THEREFORE, THE CIT(A) CAN DO WHATEVER THE ASSESSING OFFICER COULD 8 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 HAVE DONE OR MIGHT HAVE DONE. THEREFORE, WHENEVER THERE IS MATERIAL AVAILABLE ON RECORD SUGGESTING ENHANCEMENT OF INCOM E, THE CIT(A) OUGHT TO HAVE TAKEN NOTE OF THE SAME TO DETERMINE THE INC OME ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. HOWEVER, THIS IS THE DISCRETION VESTED ON THE CIT(A). UNDER THE INCOME-TAX ACT, THIS TRIBUNAL IS EMPOWERED TO ADJUDICATE THE MATTER. THIS TRIBUNAL CANNOT PLACE THE ASSESSEE IN A WORST POSITION THAN HE WAS BEFORE THE CIT(A). IF THE CIT (A) FAILED TO ENHANCE THE INCOME OF THE ASSESSEE, THEN CERTAINLY, THIS TRIBUN AL ALSO CANNOT ENHANCE THE INCOME FOR THE SIMPLE REASON THAT THIS TRIBUNAL IS NOT EMPOWERED TO PLACE THE ASSESSEE IN A WORST POSITION THAN HE WAS BEFORE THE CIT(A). THEREFORE, WE ARE NOT GOING TO THE MATERIAL WITH RE GARD TO THE MISMATCH OF THE CREDITS FOR THE YEAR UNDER CONSIDERATION. SUFF ICE TO SAY THAT THIS TRIBUNAL CANNOT PLACE THE ASSESSEE IN A WORST POSIT ION THAN IT WAS BEFORE THE CIT(A). THEREFORE, THIS TRIBUNAL HAS NO JURISD ICTION TO ENHANCE THE TAXABLE INCOME DUE TO MISMATCH OF THE ACCOUNT. 14. THE NEXT GROUND OF APPEAL IS WITH REGARD TO PAY MENT OF SOUTH KERALA CASHEW EXPORT ON BEHALF OF THE ASSESSEE TRUST. 15. SHRI M ANIL KUMAR, THE LD.DR SUBMITTED THAT AN EXPENDITURE OF RS.1,76,15,372 WAS INCURRED FOR THE YEAR UNDER CONS IDERATION BY SOUTH 9 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 KERALA CASHEW EXPORT. IN THE ABSENCE OF ANY MATERI AL, ACCORDING TO THE LD.DR, THE ASSESSING OFFICER MADE THE ADDITION. TH E ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE TRANSACTIONS WERE RECORDED IN THE VOUCHERS OF SOUTH KERALA CASHEW EXPORT. THE ASSESS EE HAS ALSO EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE TRA NSACTIONS ARE NOT RELATED TO THE ASSESSMENT YEAR UNDER CONSIDERATION. HOWEVE R, ON EXAMINATION OF THE MATERIAL, THE ASSESSING OFFICER FOUND THAT THE TRANSACTIONS ENTERED INTO THROUGH VOUCHERS OF SOUTH KERALA CASHEW EXPORT DID NOT BELONG TO THE ASSESSEE TRUST. THEREFORE, THE ASSESSING OFFICER R EJECTED THE CONTENTION OF THE ASSESSEE. ACCORDING TO THE LD.DR, SOUTH KERALA CASHEW EXPORT IS A PROPRIETORSHIP CONCERN OF SHRI ABDUL SALAM AND SHRI AA SALAM WHO HAS NOT CARRIED OUT ANY CONSTRUCTION ACTIVITIES IN THE PREMISES OF THE ASSESSEE TRUST. THEREFORE, THE PAYMENT SAID TO BE MADE BY S OUTH KERALA CASHEW EXPORT IS NOT RELATED TO THE ASSESSEE. 16. ON THE CONTRARY, SHRI IYPE MATHEW, THE LD.REPRE SENTATIVE FOR THE ASSESSEE SUBMITTED THAT FOR THE YEAR UNDER CONSIDER ATION, THE ASSESSEE HAS SPENT A SUM OF RS.4,57,71,276 TOWARDS CONSTRUCT ION OF THE BUILDING. OUT OF THESE ENTRIES, RS.21,98,727 PERTAINS TO PAYM ENT MADE TO MAAC STEELS FOR PURCHASE OF HARDWARE / STEELS, ETC AND A NOTHER SUM OF RS.15 LAKHS WAS DEPOSITED IN UNION BANK OF INDIA. THE EN TRY FOR THESE PAYMENTS 10 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 REVEALED IN THE STATEMENT OF BANK ACCOUNT OF SOUTH KERALA CASHEW EXPORT WITH UNION BANK OF INDIA. ANOTHER SUM OF RS.1,37,0 0,115 WAS PAID BY SOUTH KERALA CASHEW EXPORTS. THIS IS ALSO EVIDENT FROM THE MATERIAL AVAILABLE ON RECORD. ANOTHER SUM OF RS.2,70,000 RE PRESENTS PETTY CASH PAYMENTS FOR REVENUE EXPENDITURE. TOTALLY, SOUTH K ERALA CASHEW EXPORT PAID RS.1,76,15,372 ON BEHALF OF THE ASSESSEE TRUST FOR THE YEAR UNDER CONSIDERATION. A RECONCILIATION STATEMENT WAS FILE D BEFORE THE CIT(A) WHICH WAS REPRODUCED AT PAGE 8 OF THE APPELLATE ORD ER. THE CIT(A), AFTER CONSIDERING THE MATERIALS AVAILABLE ON RECORD FOUND THAT THE ASSESSEE RECONCILED THE AMOUNT EXCEPT TO THE EXTENT OF RS.2, 54,782. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE CIT(A) CONF IRMED THE ADDITION ONLY TO THE EXTENT OF RS.2,54,782. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE MATE RIAL AVAILABLE ON RECORD SUGGESTS THAT THE PAYMENT WAS MADE BY SOUTH KERALA CASHEW EXPORT. THE ASSESSEE HAS PRODUCED COPIES OF THE VOUCHERS / INVOICES. THE ASSESSEE HAS ALSO FILED A RECONCILIATION STATEMENT BEFORE THE CIT(A) WHICH WAS REPRODUCED ON PAGE 8 OF THE CIT(A)S ORDER. TH E CIT(A) AFTER CONSIDERING THE PROPOSALS MADE BY THE ASSESSING OFF ICER AND THE BALANCE- SHEET ENTRIES FOR THE ASSESSMENT YEAR 2007-08 FOUND THAT THE ASSESSEE 11 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 COULD NOT EXPLAIN A SUM OF RS.2,54,782. ACCORDINGL Y, HE CONFIRMED THE ADDITION TO THE EXTENT OF RS.2,54,782. THIS TRIBUN AL DO NOT FIND ANY INFIRMITY IN THE ORDER OF LOWER AUTHORITY; THE SAME IS CONFIRMED. 18. IN THE RESULT, THE APPEAL OF THE REVENUE FOR TH E ASSESSMENT YEAR 2007-08 IS DISMISSED. 19. NOW COMING TO CROSS OBJECTION OF THE ASSESSEE F OR THE ASSESSMENT YEAR 2007-08, THE ONLY OBJECTION OF THE ASSESSEE IS THAT ASSESSMENT ORDER OUGHT TO HAVE BEEN QUASHED SINCE THE CIT(A) FOUND S ERIOUS IRREGULARITIES IN NOT REJECTING THE BOOKS OF ACCOUNT AND IN NOT PR OVIDING OPPORTUNITY TO THE ASSESSEE. 20. WE HEARD THE LD.REPRESENTATIVE FOR THE ASSESSEE AND THE LD.DR. THE ERROR / MISTAKE POINTED OUT BY THE ASSESSEE IS A PR OCEDURAL MATTER. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHILE DI SCUSSING THE REVENUES APPEAL WE FOUND THAT THIS HAS NOT RESULTED IN INVAL IDATING THE ASSESSMENT PROCEEDINGS. IF AT ALL THERE ARE ANY PROCEDURAL IR REGULARITIES, THE PROCEEDINGS HAVE TO BE REINITIATED AT THE STAGE FRO M WHICH THE IRREGULARITIES WERE OCCURRED. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE IRREGULARITIES AS POINTED OUT BY THE ASSESSEE MAY N OT INVALIDATE THE 12 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 ASSESSMENT PROCEEDINGS. THEREFORE, THE CROSS OBJEC TION HAS NO MERIT AT ALL. ACCORDINGLY, THE CROSS OBJECTION OF THE ASSES SEE FOR ASSESSMENT YEAR 2007-08 IS DISMISSED. 21. NOW LET US TAKE THE APPEAL OF THE REVENUE FOR A SSESSMENT YEAR 2008-09. THE FIRST GROUND OF APPEAL IS WITH REGARD TO ENHANCEMENT OF INCOME DUE TO DIFFERENCE IN CREDITS TO THE EXTENT O F RS.255.08 LAKHS. 22. THE ONLY CONTENTION OF THE LD.DR IS THAT THE AS SESSING OFFICER MADE A REQUEST TO THE CIT(A) TO ENHANCE THE ASSESSMENT DUE TO DIFFERENCE IN CREDITS. THIS TRIBUNAL IS OF THE CONSIDERED OPINIO N THAT THOUGH THE CIT(A) HAS A DISCRETION TO ENHANCE THE INCOME IN EXERCISE OF HIS APPELLATE JURISDICTION, THIS TRIBUNAL CANNOT COMPEL THE CIT(A ) TO ENHANCE THE INCOME. THE CIT(A) OUGHT TO HAVE EXERCISED HIS JURISDICTION SINCE HE HAS POWERS WHICH IS CO-TERMINUS WITH THAT OF THE ASSESSING OFF ICER. THE JURISDICTION OF THE TRIBUNAL CANNOT BE EXTENDED TO PUT THE ASSESSEE IN JEOPARDY. IN OTHER WORDS, THE ASSESSEE CANNOT BE PLACED IN A WORST POS ITION THAN HE WAS BEFORE THE CIT(A) BY THE TRIBUNAL. AT THE BEST, WE MAY SET ASIDE THE ORDER OF THE CIT(A) WHEREIN THE ADDITION MADE BY THE ASSE SSING OFFICER WAS DELETED. HOWEVER, THIS TRIBUNAL CANNOT MAKE ANY FU RTHER ADDITION. IN VIEW 13 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE O RDER OF THE CIT(A). ACCORDINGLY, THE SAME IS CONFIRMED. 23. THE NEXT GROUND OF APPEAL IS WITH REGARD TO OPP ORTUNITY TO THE ASSESSEE. AS WE HAVE ALREADY OBSERVED WHILE DEALIN G WITH THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 2007-08, THOUGH ADEQUATE OPPORTUNITY SHOULD HAVE BEEN GIVEN TO THE ASSESSEE, WE HAVE TO TAKE INTO CONSIDERATION OF THE STATUTORY REQUIREMENT OF TIME LIMIT TO COMPLETE THE ASSESSMENT PROCEEDING. THIS TRIBUNAL IS OF THE CON SIDERED OPINION THAT THE ASSESSING OFFICER HAS TAKEN MUCH PAIN IN COMPLE TING THE ASSESSMENT WITHIN THE AVAILABLE PERIOD OF TIME BY PROVIDING TH E OPPORTUNITY TO THE ASSESSEE ON 03-12-2010 AND 08-12-2010. THEREFORE, THE OBSERVATIONS MADE BY THE CIT(A) MAY NOT PREJUDICE THE INTEREST O F THE REVENUE IN ANY WAY. 24. THE NEXT GROUND OF APPEAL IS WITH REGARD TO UNA CCOUNTED INVESTMENT TO THE EXTENT OF RS.46,18,176. 25. SHRI M ANIL KUMAR, THE LD.DR SUBMITTED THAT THE CIT(A) OBSERVED THAT THE ASSESSEE HAS EXPLAINED AND RECONCILED THE EXPENDITURE EXCEPT A BALANCE OF RS.46,18,176. ACCORDING TO THE LD.DR, T HE MAIN OBJECTION OF THE 14 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 ASSESSEE BEFORE THE CIT(A) IS THAT THE ASSESSING OF FICER HAS NOT PROVIDED ANY SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO EXPLA IN THE SAME. ACCORDING TO THE LD.DR, THE BALANCE-SHEET AS ON 31-03-2008 RE FLECTED THE COST OF CONSTRUCTION AT RS.20,28,90,265. THE CONTENTION OF THE ASSESSEE WAS NOT VERIFIED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE CIT(A) FOUND THAT THE ASSESSMENT WAS MADE IN A HURRIED MANNER. IF THAT IS SO, ACCORDING TO THE LD .DR, HE OUGHT TO HAVE EXAMINED THE MATTER HIMSELF AFTER CALLING FOR THE R EMAND REPORT. ACCORDING TO THE LD.DR, THE CIT(A) DELETED THE ADDITION ON TH E BASIS OF THE REPORT OF THE DISTRICT VALUATION OFFICER IGNORING THE MATERIA LS FOUND DURING THE COURSE OF SEARCH OPERATION. 26. ON THE CONTRARY, SHRI IYPE MATHEW, THE LD.REPRE SENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE RECONCILED THE ENTIRE EXPENDITURE ON THE BASIS OF THE INCOME AND RECEIPT FOR THE YEAR UN DER CONSIDERATION. A REMAND REPORT WAS ALSO CALLED FOR BY THE CIT(A). T HE ASSESSING OFFICER HAS FILED A PARA-WISE REMARK BEFORE THE CIT(A) WITH RES PECT TO EACH EXPENDITURE. REFERRING TO THE ORDER OF THE CIT(A), MORE PARTICULARLY PAGES 28 & 29, THE LD.REPRESENTATIVE SUBMITTED THAT FOR T HE ASSESSMENT YEARS 2008-09 AND 2009-10 AN AMOUNT OF RS.49,10,01,554 WA S REMAINED TO BE EXPLAINED. THIS AMOUNT WAS RECONCILED WHICH WAS EX ACTLY REPRODUCED BY 15 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 CIT(A) IN HIS ORDER. THE CIT(A) FURTHER FOUND THAT THE BALANCE AMOUNT REMAINED TO BE RECONCILED WAS RS.46,18,176. AFTER REFERRING TO THE IRREGULARITIES COMMITTED BY THE ASSESSING OFFICER I N THE ASSESSMENT PROCEEDINGS, THE CIT(A) FOUND THAT THE DISTRICT VAL UATION OFFICER OF THE INCOME-TAX DEPARTMENT, CHENNAI FOUND THAT THE COST OF CONSTRUCTION IS RS.59,19,09,000. THE CIT(A) FURTHER FOUND THAT THI S COST OF CONSTRUCTION HAS TO BE SPREAD OVER FROM 2007-08 TO 2011-12. THE BALANCE-SHEET OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09 SHOWS THE COST OF CONSTRUCTION AT RS.21,47,45,621 AND FOR THE ASSESSMENT YEAR 2009 -10 IT DISCLOSED THE CONSTRUCTION COST OF RS.20,44,07,891. THE CIT(A) F URTHER FOUND THAT THE ASSESSING OFFICER ESTIMATED THE COST OF CONSTRUCTIO N AGAINST THE DISTRICT VALUATION OFFICERS REPORT FOR TWO ASSESSMENT YEARS . THE CIT(A) FOUND THAT THERE IS NO REASON TO DISBELIEVE THE COST OF CONSTR UCTION. HE DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, WHEN THE DISTRICT VALUATION OFFI CER OF THE DEPARTMENT ESTIMATED THE ACTUAL INVESTMENT, THE ASSESSING OFFI CER CANNOT GO BEYOND WHAT WAS ACTUALLY ESTIMATED BY THE DISTRICT VALUATI ON OFFICER. 27. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER CO NSIDERING THE EXPLANATION OF THE ASSESSEE AND THE PARA-WISE REMAR KS FILED BY THE 16 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 ASSESSING OFFICER, THE CIT(A) FOUND THAT THE ASSESS EE HAS RECONCILED THE ENTRIES EXCEPT A BALANCE OF RS.46,18,176. IN FACT, THE CIT(A) EXTRACTED THE RECONCILIATION ON PAGES 28 AND 29 OF HIS ORDER WHIC H READS AS UNDER: A) AMT-110, PAGE NO.542 DATED 23.05.2007 NAZAR RS.85 LAKHS:- THIS IS EXPLAINED TO BE A DEMAND DRAF T RECEIVED FROM SHRI A NAZARUDEEN, A TRUSTEE OF THE TRUST. TH E EXPLANATION REGARDING THE DD GIVEN BY SHRI NAZARUDE EN HAS BEEN ACCEPTED BY THE AO DURING THE COURSE OF ASSESS MENT PROCEEDINGS OF M/S SOUTH KERALA CASHEW EXPORTERS FO R THE AY 2008-09. SINCE THIS IS A RECEIPT IN THE HANDS OF T HE ASSESSEE TRUST, THE INVESTMENT HAS BEEN OVERSTATED TO THIS E XTENT. B) IT HAS BEEN EXPLAINED THAT TWO OR THREE COPIES O F VOUCHERS ARE PREPARED EACH FOR ACCOUNTS DEPARTMENT, STORES DEPARTMENT, PURCHASE DEPARTMENT AND R&D DEPARTMENT, ETC. DURING THE COURSE OF SEARCH OPERATIONS, FILE CONTAI NING VOUCHERS OF ALL THESE DEPARTMENTS WERE SEIZED AND W HILE TABULATING THE AMOUNT THE AO HAS TAKEN THE DUPLICAT E VOUCHERS ALSO. IT IS THEREFORE GATHERED THAT THE P ROPOSAL WAS OVERSTATED BY AN AMOUNT OF RS.10,82,80,207/- ON ACC OUNT OF DUPLICATE ENTRIES FOR AY 2008-09 AND FOR AN AMOUNT OF RS.10,61,92,205/- FOR THE AY 2009-10. C) IT IS FURTHER INFERRED THAT REVENUE ITEMS WERE A LSO INCLUDED IN THE WORKING TABULATED FOR COST OF CONST RUCTION. SUCH ENTRIES ARE TOTALING TO THE TUNE OF RS.18,80,7 13/- FOR AY 2008-09 AND RS.75,12,872/- FOR AY 2009-10. 17 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 D) THE TOTAL VALUE OF OTHER FIXED ASSETS (FURNITURE , COMPUTER, MEDICAL AND LAB EQUIPMENT, ETC. WERE ALSO INCLUDED TOWARDS DETERMINATION OF COST OF CONSTRUCTION AND S UCH ASSETS HAVE BEEN ADDED TO THE TUNE OF RS.2,05,39,771/- FOR AY 2008- 09 AND RS.21,12,37,726/- FOR AY 2009-10. E) ANOTHER CATEGORY OF VOUCHERS WHICH REFERRED TO REQUISITION FOR PAYMENT OR CORRESPONDENCE LETTERS, ETC. WHICH DO NOT FORM PART OF COST OF BUILDING HAVE BEEN ADDE D TO THE TUNE OF RS.2,55,57,436/- FOR THE AY 2008-09 AND RS.3,18,02,111/- FOR THE AY 2009-10. F) LAND LEVELING CHARGES WHICH IS PAID THROUGH M/S PMK CONSTRUCTION AND DOES NOT FORM PART OF THE BUILDING , BUT PART OF LAND, HAS BEEN ADDED TOWARDS COST OF CONSTRUCTION F OR AY 2008-09 TO THE TUNE OF RS.3,35,34,397/-. SIMILARLY , PAYMENT MADE TO PMK CONSTRUCTION FOR MEETING THE ABOVE EXPE NSES WERE ALSO ADDED BY THE AO SEPARATELY FOR THE SAME ASSESSMENT YEAR TO THE TUNE F RS.3,35,34,397/-, HEN CE THIS IS DUPLICATION OF THE ENTRIES. G) OTHER CONSTRUCTION MATERIALS PURCHASED AND PAYME NT MADE THROUGH PMK CONSTRUCTION HAVE BEEN ADDED TO TH E TUNE OF RS.52,92,720/- FOR THE AY 2008-09. IN THE AOS PROPOSAL, INVOICES OF MATERIAL PURCHASED AS WELL AS PAYMENTS MADE AGAINST THESE INVOICES WERE INCLUDED AND THE TOTAL OF SUCH INVOICES AND THE PAYMENTS MADE THEREON AMOUNTS TO RS.2,37,46,343/- FOR THE AY 2008-09. H) IT HAS ALSO BEEN FOUND FROM THE RECORDS THAT OUT OF RS.1,60,46,396/- EXCLUDED FROM AY 2007-08 AND INCLU DED IN 18 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 THE AY 2008-09, RS.1,49,46,716/- RELATES TO ESTIMAT ES INTENDED TO ASSESSMENT YEAR 2008-09. I) BANK DEPOSITS INCLUDED IN THE COST OF BUILDING F OR AY 2009-10 STANDS AT RS.1,46,80,000/-, WHICH IS MENTIO NED BY THE AO AT RS.14,68,000/- IS THEREFORE OVERSTATED BY RS.1,32,12,000/- THE FACT WHICH HAS AGAINST BEEN VE RIFIED FROM RECORDS BY THE PRESENT ASSESSING OFFICER, WHO HAS I NTIMATED THE SAME VIDE HIS LETTER DATED 16.09.2011. THE TOTAL COST OF CONSTRUCTION WAS ESTIMATED BY THE DISTRICT VALUATION OFFICER AT RS.59,19,09,000. THE ASSESSING OFFICER FOUND THAT CERTAIN REVENUE EXPENDITURES WERE INCURRED. HOWEVER, IN TH E ABSENCE OF ANY DETAILS IN THE SEIZED MATERIAL WITH REGARD TO REVEN UE EXPENDITURE, HE HAS TAKEN THE ENTIRE AMOUNT AS UNEXPLAINED INVESTMENT I N THE COST OF CONSTRUCTION. WHEN THE ASSESSEE HAS INCURRED HUGE AMOUNT OF CONSTRUCTION TO THE EXTENT OF RS.59,19,09,000 AS OB SERVED BY THE ASSESSING OFFICER, AN AMOUNT OF RS.46,18,176 MIGHT HAVE BEEN INCURRED TOWARDS REVENUE ACCOUNT. THE ASSESSING OFFICER REJ ECTED THE CLAIM OF THE ASSESSEE ONLY ON THE GROUND THAT THE DETAILS WERE N OT AVAILABLE. WHEN THE INCOME WAS ESTIMATED DISBELIEVING THE BOOKS OF ACCO UNT MAINTAINED BY THE ASSESSEE AND THE ASSESSING OFFICER WAS OF THE OPINI ON THAT THE ASSESSEE HAS INCURRED EXPENDITURE TOWARDS REVENUE ACCOUNT, A REASONABLE ESTIMATION HAS TO BE MADE. IN THE BLOCK ASSESSMENT INCOME HAS TO BE 19 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 COMPUTED PRIMARILY ON THE BASIS OF THE MATERIAL AVA ILABLE ON RECORD INCLUDING THE SEIZED MATERIAL. THEREFORE, THE SEIZ ED MATERIAL AS WELL AS THE VALUATION DONE BY THE DISTRICT VALUATION OFFICER H AS TO BE TAKEN INTO CONSIDERATION. WHEN THE DISTRICT VALUATION OFFICER ESTIMATED THE COST OF CONSTRUCTION AND THERE IS A DIFFERENCE IN RECONCILI ATION TO THE EXTENT OF RS.46,18,176 THIS TRIBUNAL IS OF THE CONSIDERED OPI NION THAT THIS RS.46,18,176 MIGHT HAVE BEEN RELATING TO THE REVENU E EXPENDITURE. THEREFORE, WE HOLD THAT THE CIT(A) HAS RIGHTLY DELE TED THE ADDITION MADE BY THE ASSESSING OFFICER. WE CONFIRM HIS ORDER ON THI S ISSUE. 28. THE NEXT GROUND OF APPEAL IS WITH REGARD TO EXE MPTION U/S 10(23C) OF THE ACT. 29. WE HEARD SHRI M ANIL KUMAR, THE LD.DR AND SHRI IYPE MATHEW, THE LD.REPRESENTATIVE FOR THE ASSESSEE. 30. SINCE THE DELETION OF RS.46,18,176 IS CONFIRMED ON MERIT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE GROU ND OF APPEAL RELATING TO EXEMPTION U/S 10(23C) BECOMES INFRUCTUOUS. HOWEVER , THE LD.REPRESENTATIVE FOR THE ASSESSEE CLAIMS THAT ON T HE BASIS OF THE JUDGMENT OF THE KERALA HIGH COURT IN ITA NO.171 OF 2009 DATE D 04-10-2010 ALL 20 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 INCOMES OF THE ASSESSEE IS EXEMPT U/S 10(23C) OF TH E ACT. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 10 (23C) OF THE ACT WHICH READS AS FOLLOWS: 23C) ANY INCOME RECEIVED BY ANY PERSON ON BEHALF O F (I) TO (IIIAC) XXXXXXXXXXXXXXXXXXXXXX (IIIAD) ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITU TION EXISTING SOLELY FOR EDUCATIONAL PURPOSES AND NOT FOR PURPOSE S OF PROFIT IF THE AGGREGATE ANNUAL RECEIPTS OF SUCH UNIVERSITY OR 2EDUCATIONAL INSTITUTION DO NOT EXCEED THE AMOUNT O F ANNUAL RECEIPTS S MAY BE PRESCRIBED. (IIIAE) TO (V) (VI) ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTIO N EXISTING SOLELY FOR EDUCATIONAL PURPOSES AND NOT FOR PURPOSE S OF PROFIT, OTHER THAN THOSE MENTIONED IN SUB-CLAUSE (IIIAB) OR SUB-CLAUSE (IIIAD) AND WHICH MAY BE APPROVED BY THE PRESCRIBED AUTHORITY. BY REFERRING TO THE TERM ANY INCOME, THE LD.REPRE SENTATIVE FOR THE ASSESSEE CONTENDS THAT ANY INCOME OF THE ASSESSEE IS EXEMPT U/S 10(23C) OF THE ACT PROVIDED THE PRESCRIBED AUTHORIT Y ACCORDED APPROVAL AS REQUIRED UNDER THE ACT. THE QUESTION ARISES FOR CO NSIDERATION IS WHETHER ALL RECEIPTS OF THE ASSESSEE WOULD FALL WITHIN THE TERM ANY INCOME. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT ALL RECE IPTS OF THE ASSESSEE CANNOT BE CONSIDERED TO BE INCOME OF THE ASSESSEE. THE WORD ANY 21 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 INCOME MEANS THE INCOME GENERATED OUT OF THE PROPE RTY HELD UNDER TRUST AND THE INCOME IN THE COURSE OF PERFORMING THE CHA RITABLE ACTIVITY, VIZ. RUNNING OF THE EDUCATIONAL INSTITUTION. A VOLUNTAR Y DONATION IN CASH OR KIND MAY ALSO FALL WITHIN THE TERM ANY INCOME. HOWEVE R, AN INCOME OR RECEIPT, RECEIVED IN CONTRAVENTIONS OF THE ACT OR WHICH IS P ROHIBITED BY LAW CANNOT BE CONSTRUED AS INCOME FOR THE PURPOSE OF SECTION 1 0(23C) OF THE ACT. THE KERALA STATE LEGISLATURE PROHIBITED THE COLLECT ION OF CAPITATION FEES FOR ADMISSION OF THE STUDENTS IN SCHOOLS AND COLLEGES. THEREFORE, ANY AMOUNT COLLECTED FOR ADMISSION OF THE STUDENTS OVER AND AB OVE THE PRESCRIBED FEE HAS TO BE CONSIDERED AS CAPITATION FEE AND THAT CAN NOT BE CONSTRUED AS INCOME OF THE ASSESSEE WITHIN THE MEANING OF SECTIO N 10(23C). IN OTHER WORDS, CAPITATION FEE WOULD FALL OUTSIDE THE PURVIE W OF SECTION 10(23C) AND HENCE IS LIABLE FOR TAXATION UNDER THE INCOME-TAX A CT. THE CAPITATION FEE COLLECTED FOR ADMISSION OF STUDENTS OVER AND ABOVE THE PRESCRIBED FEE SHALL BE TREATED AS TAXABLE INCOME AND THE SAME IS NOT EL IGIBLE FOR EXEMPTION EITHER UNDER SECTION 11 OR U/S 10(23C) OF THE ACT. THE INCOME-TAX ACT PROVIDES FOR EXEMPTION IN RESPECT OF THE TRUST OR I NSTITUTION WHICH GENERATES FUNDS IN THE COURSE OF LEGAL ACTIVITY. IT IS NOT T HE INTENTION OF THE PARLIAMENT TO EXEMPT ANY INCOME WHICH WAS EARNED CONTRARY TO T HE PROVISIONS OF THE LAW AND CONTRARY TO THE SOCIAL NORMS. COLLECTION O F CAPITATION FEE IS INHUMAN, CONTRARY TO ALL SOCIAL NORMS BESIDES BEING CONTRARY TO THE 22 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 PROVISIONS OF CONSTITUTION OF INDIA. THIS VIEW OF OURS IS FORTIFIED BY THE JUDGMENT OF THE APEX COURT IN T.M.A. PAI FOUNDATION & ORS VS STATE OF KARNATAKA & ORS (2002) 8 SCC 481 AND ISLAMIC ACADEM IC EDUCATION VS STATE OF KARNATAKA (2003) 6 SCC 677. THEREFORE, TH IS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE TERM ANY INCOME HAS T O BE CONSIDERED AS INCOME OF THE PROPERTY HELD UNDER THE TRUST AND THE INCOME GENERATED IN THE COURSE OF RUNNING OF THE INSTITUTION IN THE LEG AL MANNER. IT CANNOT INCLUDE CAPITATION FEE COLLECTED FOR ADMISSION OF T HE STUDENTS. IN THIS CASE, IT IS NOT THE CONTENTION OF THE REVENUE THAT THE AS SESSEE COLLECTED ANY CAPITATION FEE FOR ADMISSION OF THE STUDENTS. MORE OVER, NO MATERIAL IS ON RECORD TO SUGGEST THAT THE ASSESSEE HAS COLLECTED A NY CAPITATION FEE FOR ADMISSION OF THE STUDENTS. THE TRUSTEES SHRI ABDUL SALAM AND SHRI AA SALAM HAPPENED TO BE BUSINESSMEN AND ADMITTED THAT THEY HAVE INVESTED THEIR OWN FUNDS IN THE STATEMENT RECORDED U/S 132(4 ) OF THE ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. THIS T RIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE SAME IS CONFIRMED. 31. IN THE RESULT, THE APPEAL OF THE REVENUE FOR TH E ASSESSMENT YEAR 2008-09 IS DISMISSED. 23 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 32. NOW COMING TO THE CROSS OBJECTION FILED BY THE ASSESSEE, THE CROSS OBJECTION IS FILED ONLY TO SUPPORT THE ORDER OF THE CIT(A). SINCE THIS TRIBUNAL CONFIRMED THE ORDER OF THE LOWER AUTHORITY , THE CROSS OBJECTION BECOMES INFRUCTUOUS. ACCORDINGLY, THE CROSS OBJECT ION STANDS DISMISSED. 33. COMING TO THE APPEAL FILED BY THE REVENUE FOR T HE ASSESSMENT YEAR 2009-10 THE FIRST GROUND OF APPEAL IS THAT THE CIT( A) ERRED IN DISREGARDING THE A.OS REQUEST FOR ENHANCEMENT OF INCOME ON ACCO UNT OF DIFFERENCE IN CREDIT SHOWN AGAINST TRUSTEES AA SALAM & A ABDUL SA LAM. 34. WE HAVE HEARD THE LD.DR AND THE LD.REPRESENTATI VE FOR THE ASSESSEE. WHILE DEALING WITH THE DEPARTMENTS APPEALS FOR ASS ESSMENT YEARS 2007- 08 AND 2008-09 WE HAVE ALREADY HELD THAT THOUGH THE CIT(A) HAS DISCRETION TO ENHANCE THE INCOME WHILE EXERCISING H IS APPELLATE JURISDICTION, THIS TRIBUNAL CANNOT COMPEL THE CIT(A) TO ENHANCE T HE INCOME. THE CIT(A) OUGHT TO HAVE EXERCISED HIS JURISDICTION SIN CE HE HAS POWERS WHICH IS CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER. THE JURISDICTION OF THE TRIBUNAL CANNOT BE EXTENDED TO PUT THE ASSESSEE IN JEOPARDY. IN OTHER WORDS, THE ASSESSEE CANNOT BE PLACED IN A WORST POS ITION THAN HE WAS BEFORE THE CIT(A) BY THE TRIBUNAL. AT THE BEST, WE MAY SET ASIDE THE ORDER OF THE CIT(A) WHEREIN THE ADDITION MADE BY THE ASSE SSING OFFICER WAS 24 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 DELETED. HOWEVER, THIS TRIBUNAL CANNOT MAKE ANY FU RTHER ADDITION. CONSISTENT WITH THE DECISION ALREADY TAKEN BY US, W E DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE SAME IS CONFIRMED. 35. THE NEXT GROUND OF APPEAL IS WITH REGARD TO OPP ORTUNITY TO THE ASSESSEE. AS WE HAVE ALREADY OBSERVED WHILE DEALIN G WITH THE APPEALS OF THE REVENUE FOR THE ASSESSMENT YEARS 2007-08, AND 2 008-09 THOUGH ADEQUATE OPPORTUNITY SHOULD HAVE BEEN GIVEN TO THE ASSESSEE, WE HAVE TO TAKE INTO CONSIDERATION OF THE STATUTORY REQUIREMEN T OF TIME LIMIT TO COMPLETE THE ASSESSMENT PROCEEDING. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS TAKEN MUCH P AIN IN COMPLETING THE ASSESSMENT WITHIN THE AVAILABLE PERIOD OF TIME BY P ROVIDING THE OPPORTUNITY TO THE ASSESSEE ON 03-12-2010 AND 08-12-2010. THER EFORE, THE OBSERVATIONS MADE BY THE CIT(A) MAY NOT PREJUDICE T HE INTEREST OF THE REVENUE IN ANY WAY. 36. THE NEXT GROUND OF APPEAL IS WITH REGARD TO DRO PPING OF THE ENHANCEMENT PROCEEDINGS IN RESPECT OF UNACCOUNTED P AYMENTS MADE TO DOCTORS TO THE EXTENT OF RS. 1,80,94,677. 25 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 37. SHRI M ANIL KUMAR, THE LD.DR SUBMITTED THAT THE CIT(A) INITIATED THE PROCEEDINGS TO ENHANCE THE INCOME TO THE EXTENT OF RS. 1,80,94,677. HOWEVER, THE SAME WAS DROPPED WITHOUT ANY REASONS. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT UNLESS THE ADDITION IS MADE BY THE CIT(A) IN THE ENHANCEMENT PROCEEDINGS OR THE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED BY THE CIT(A), THIS TRIBUNAL C ANNOT STEP INTO THE SHOES OF THE LOWER AUTHORITY AND MAKE THE ASSESSMENT. TH IS TRIBUNAL CANNOT PUT THE ASSESSEE IN A WORST POSITION THAN HE WAS BEFORE THE CIT(A). IN THE ABSENCE OF ANY SPECIFIC ADDITION MADE BY THE CIT(A) IN THE COURSE OF FIRST APPELLATE PROCEEDINGS, THIS TRIBUNAL CANNOT MAKE A NY FURTHER ADDITION IN THE COURSE OF SECOND APPELLATE PROCEEDINGS. THEREF ORE, THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AU THORITY. 38. THE NEXT GROUND OF APPEAL IS WITH REGARD TO EST IMATION OF COST OF CONSTRUCTION ON THE BASIS OF THE VALUE ESTIMATED BY THE DISTRICT VALUATION OFFICER. THIS ISSUE WAS CONSIDERED BY THIS TRIBUNA L IN THE EARLIER PART OF THE ORDER WHILE DEALING WITH THE APPEAL FOR THE ASSESSM ENT YEAR 2008-09. THIS TRIBUNAL FOUND THAT ON THE BASIS OF THE VALUATION O F THE DISTRICT VALUATION OFFICER AND THE SEIZED MATERIAL AN AMOUNT OF RS.46, 18,176 REMAINED TO BE RECONCILED WHICH HAS TO BE TREATED AS REVENUE EXPEN DITURE SINCE THE ASSESSING OFFICER HIMSELF FOUND THAT THE ASSESSEE H AS INCURRED CERTAIN 26 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 EXPENDITURE ON THE REVENUE ACCOUNT. FOR THE REASON S STATED BY THIS TRIBUNAL WHILE DEALING WITH THE APPEAL OF THE REVEN UE FOR THE ASSESSMENT YEAR 2008-09 IN THE EARLIER PART OF THE ORDER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS RIGHTLY DELE TED THE ADDITION. THE ORDER OF THE CIT(A) ON THIS ISSUE IS CONFIRMED. 39. NOW COMING TO THE EXEMPTION U/S 10(23C), THIS I SSUE ALSO STANDS DECIDED BY US WHILE DECIDING THE APPEAL FOR THE ASS ESSMENT YEAR 2008-09. WE HAVE FOUND THAT IT IS NOT THE CONTENTION OF THE REVENUE THAT THE ASSESSEE COLLECTED ANY CAPITATION FEE FOR ADMISSION OF THE STUDENTS AND THAT NO MATERIAL IS ON RECORD TO SUGGEST THAT THE A SSESSEE HAS COLLECTED ANY CAPITATION FEE FOR ADMISSION OF THE STUDENTS. FOR THE DETAILED REASONS GIVEN THEREIN, WE HOLD THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION. WE UPHOLD THE ORDER OF THE CIT(A) ON THIS ISSUE. 40. IN THE RESULT, THE APPEAL FILED BY THE REVENUE FOR THE ASSESSMENT YER 2009-10 IS DISMISSED. 41. COMING TO THE CROSS OBJECTION FILED BY THE ASSE SSEE, THE CROSS OBJECTION IS FILED ONLY TO SUPPORT THE ORDER OF THE CIT(A). SINCE THIS 27 ITA NO.19, 20 & 21/COCH/2012 CO NOS. 07, 08 & 09/COCH/2012 TRIBUNAL CONFIRMED THE ORDER OF THE LOWER AUTHORITY , THE CROSS OBJECTION BECOMES INFRUCTUOUS. ACCORDINGLY, THE CROSS OBJECT ION STANDS DISMISSED. 42. IN THE RESULT, THE APPEALS FILED BY THE REVENUE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST JANUARY, 2014. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 31 ST JANUARY, 2014 PK/- COPY TO: 1. A.C.I.T., CENT.CIR., KOLLAM 2. M/S QUILON MEDICAL TRUST, MEDICITY, THATTAMALA, KOLLAM 3. THE COMMISSIONER OF INCOME-TAX (CENTRAL), KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-III, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH