Sri.Jose Thomas, Adoor V. The dCIT, Cen-circle, Kottayam

ITA 30/COCH/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5757 (ITAT-COCHIN)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-08-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 07-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU; SHRISHANTAM BOSE
• Keywords: Capital asset; Gift; Business income; Depreciation; Income from undisclosed sources; Document seized; Charitable institution; Principle of natural justice; Maximum Marginal Rate; Source of fund; Cost of acquisition; Fair market value; Competent authority; Tax effect; Capital receipt; Benefit of exemption; Surrender of tenancy right; Documents seized; TDS; Liquidation; Capital Gains
• Section: 143(3); 2(14); 153A; 194C; 12AA; 201; 251; 208; 192; 64; 43; 48; 73; 72; 13; 147; 131; 148; 56; 132; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFOR E S/ SHRI CHANDRA POOJARI , AM & GEORGE GEORGE K., J M I .T.A. NOS. 27 TO 31 /COCH/2019 ASSESSMENT YEARS : 2004 - 05 TO 200 9 - 10 JOSE THOMAS, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. PAN:ADCPT 9216G] VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) I .T.A. NOS. 32 TO 35 /COCH/2019 ASSESSMENT YEARS : 2004 - 05 TO 2007 - 08 SMT. GRACYBABU, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. PAN:AHTPB 7949R] VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) I .T.A. NO. 55/COCH/2019 ASSESSMENT YEAR: 2009 - 10 SHRI JOS E THOMAS, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O . , PATHANAMTHITTA - 691 523. PAN:ADCPT 9216G] VS. THE ASSISTANT C OMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 2 I .T.A. NO. 54/COCH/2019 ASSESSMENT YEAR: 2009 - 10 SMT. GRACYBABU, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. PAN:AHTPB 7949R] VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) I .T.A. NOS.208 TO 210/COCH/2019 ASSESSMENT YEARS : 2009 - 10 TO 2011 - 12 JOSE THOMAS, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. PAN:ADCPT 9216G] VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) I .T.A. NOS. 211 TO 213/COCH/2019 ASSESSMENT YEARS : 2009 - 10 TO 2011 - 12 S MT. GRACYBABU, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. PAN:A HTPB 7949R ] VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 3 I .T.A. NO .238 /COCH/2019 ASSESSMENT YEAR S : 2011 - 12 THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. VS. JOSE THOMAS, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. PAN:ADCPT 9216G] (REVENUE - APPELLANT) (ASSESSEE - RESPONDENT) I .T.A. NO.23 9 /COCH/2019 ASSESSMENT YEAR: 2011 - 12 THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. VS. SMT. GRACYBABU, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. PAN:AHTPB 7949R] (REVENUE - APPELLANT) (ASSESSEE - RESPONDENT) I .T.A. NO. 207/COCH/2019 ASSESSMENT YEAR:2009 - 10 SMT. REENA JOSE, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. PAN:AESPJ 7479Q] VS. THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 4 I .T.A. NOS.304 TO 310/COCH/2019 ASSESSMENT YEARS: 2004 - 05 TO 2010 - 11 M/S. CARMEL EDUCATIONAL TRUST , KOONAMKARA P.O., PERUNAD, RANNI, PATHANAMTHITTA - 689 711. [PAN:AAATC 4524B] VS. THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) ASS ESSEE BY SHRI MATHEW JOSEPH, CA SHRI T. BANUSEKAR, CA REVENUE BY SHRISHANTAM BOSE, CIT(DR) AND SMT. A.S. BINDHU, SR. DR D ATE OF HEARING 06/08/2019 DATE OF PRONOUNCEMENT 30 / 0 9 /201 9 O R D E R PER CHANDRA POOJARI, AM: TH ESE APPEALS FILED BY DIFFERENT ASSESSEE S ARE D IRECTED AGAINST THE DIFFERENT ORDER S OF THE CIT(A) - III, KOCHI FOR DIFFERENT ASSESSMENT YEARS. 2. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE IDENTICAL IN NATURE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 5 3. ITA NOS. 27 TO 3 1 /COCH/2019 : JOSE THOMAS :AY 2004 - 05 TO 2007 - 08 I TA NOS. 3 2 TO 3 5 / COCH/2019 : GRACYBABU : AY 2004 - 05 TO 2007 - 08 3.1 THE ASSESSES HAVE RAISED THE FOLLOWING COMMON GROUND OF APPEALS IN ITA NOS. 27, 28, 29, 30, 32, 33 & 34/COCH/2019: 1. THE ASSESSING OFFICER WENT WRO NG IN ASSESSING THE EXTRA FEE COLLECTED FROM STUDENTS AS THE INCOME OF THE FAMILY HEAD OF THE TRUSTEES INSTEAD OF EQUALLY ALLOCATING AMONG THE TRUSTEES. THE CIT(A) HAD CONFIRMED THE FINDING OF THE ASSESSING OFFICER IGNORING THE SUBMISSION OF THE ASSESSEE. 4. THE LD AR HAS NOT PRESSED THE FOLLOWING ADDITIONAL GROUND OF APPEAL S IN THE CASE OF BOTH THE ASSESSES FOR ALL THE ASSESSMENT YEARS. THE ASSESSING OFFICER WENT WRONG IN ASSESSING THE FEE COLLECTED BY THE TRUSTEES IN THEIR OFFICIAL CAPACITY FROM THE STUDENTS IN EXCESS OF WHAT IS FIXED BY THE GOVT. OF KERALA IN THEIR HANDS WHICH WAS NOT ACCOUNTED BY THE TRUST AS THE INCOME OF THE TRUST. THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) HAS CONFIRMED THE ASSESSMENT IGNORING THE SUBMISSION OF THE ASSESSEE . 4.1 HENCE, THE ADDITIONAL GROUND RAISED BY THE ASSES SES IS DISMISSED AS NOT PRESSED. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 6 5. THE FACTS OF THE CASE WITH REGARD TO THE MAIN GROUND ARE THAT THE TRUST WAS RUNNING EDUCATIONAL INSTITUTIONS IN ENGINEERING AND MANAGEMENT COURSES. THE TRUST H AD 12 TRUSTEES AS DETAILED BELOW: 1. BABU THOMAS, GRACYBABU AND THEIR TWO MAJOR SONS. 2. JOSE THOMAS, REENA JOSE AND THEIR MAJOR SON AND DAUGHTER. 3. P.J. POULOSE, LIZZYPOULOSE AND THEIR TWO MAJOR DAUGHTERS. D UE TO THE DIFFICULTIES IN MANAGING THE COLLEGE AND ALSO DUE TO THE PERSONAL DIFFERENCES, THE TRUSTEES HA D DECIDED TO DISCONTINUE THE BUSINESS AND ENTERED INTO AN AGREEMENT WITH B ELIEVERS C HURCH ON 10/03/2009 WHEREBY THE ENTIRE TRUSTEES RESIGN ED FROM THE TRUSTEESHIP INDUCTING NEW TRUSTEES FROM THE SIDE OF THE B ELIEVERS C HURCH. THE AGREEMENT ALSO PROVIDED FOR PAYMENT OF 37.5 CRORES TO THE TRUSTEES FOR SETTLING THEIR LIABILITIES AS WELL AS COMPLETING CERTAIN CONSTRUCTION ACTIVITIES CARRIED OUT BY THEM. THE AGREEMENT ALSO PROVIDED FOR SALE OF 55.15 ACRES OF LAND BELONGING TO THE TRUSTEES FOR A CONSIDERATION OF RS.12.50 CRORES. 5.1 A SEARCH U/S 132 OF THE ACT WAS CONDUCTED AT THE RESIDENCE OF JOSE THOMAS, SMT. GRACYBABU AND SRI P J PAULOSE ON 04/03/2009 AND CERTAIN DOCUMENTS WERE IMPOUNDED. AN UNSIGNED DRAFT AGREEMENT DATED 23/02/2009 WAS ALSO FOUND WHICH STATE D THE AMOUNT FOR SE TTLEMENT OF LIABILITIES AT RS.43.50 CRORES AND THE VALUE OF THE ESTATE AT 6.50 CRORES. CERTAIN MATERIALS WHERE ENTRIES WERE MADE TO THE EFFECT I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 7 THAT COLLECTION FEE FROM STUDENTS IN EXCESS OF WHAT WAS FIXED BY GOVT, INVESTMENT DETAILS OF TRUSTEES ETC . WERE S EIZED. THE DOCUMENTS SO SEIZED INCLUDED: I. COPIES OF ACCOUNTS OF SHRI JOSE THOMAS WITH THE CARMEL EDUCATIONAL TRUST . II. ACCOUNTS OF HIS FRANCHISEE BUSINESS . III.COPY OF THE DEED OF CREATION OF ST: THOMAS EDUCATIONAL TRUST , ADOOR . IV.ACCOUNTS RELATING HIS INVESTMENT IN THE TRAVANCORE EDUCATIONAL SOCIETY . 5. 2 THE MATERIALS SEIZED FROM THE RESIDENCE OF THE OTHER TRUSTEES INCLUDED : I. COPY OF THE DEED OF CREATION OF THE CARMEL EDUCATIONAL TRUST. II. DRAFT OF AN AGREEMENT MADE AMONG THE TRUSTEES OF THE CARMEL EDUCATIONALTRUST BEFORE TRANSFERRING THEIR TRUSTEESHIP TO NOMINEES OF THE BELIEVERSCHURCH IN MARCH 2009. III.COPIES OF PETITIONS, COUNTER AFFIDAVITS ETC FILED BEFORE DIFFERENT CO URTS BY THE TRUSTEES IN CONNECTION WITH THE LITIGATION AMONG THE TRUSTEES . CO PY OF THEDECREE OF THE SUB C OURT , PATHANAMTHITTA IN OS NO 248/06 ETC. (PJP - 6). IV. COPIES OF ACCOUNTS WITH THE TRUST PJP - 5, KRS - 2, JTP - 4 ETC . 5. 3 THE ASSESSMENTS WERE MADE UNDER SECTION 143 ( 3) R.W.S 153A FOR THE A YS 2003 - 04 TO 2008 - 09 AND UNDER SECTION 143(3 ) FOR THE A Y 2009 - 10 IN THE CASE OF PERSONS SEARCHED NAMELY SMT. GRACYBABU, SRI. JOSE THOMAS AND SRI.P. J. PAULOSE WHO WERE THE HEADS OF FAMILY COMPRISING OF ADULT MEMBERS ONLY. NO ASSESSMENTS IN CONSEQUENCE TO THE SEARCH BY INVOKING PROVISIONS OF SE CTION 153C WERE MADE IN THE CASES OF FAMILY MEMBERS WHO WERE TRUSTEES.BASED ON THE ABOVE SEIZED DOCUMENTS AND RECORDS THE ASSESSING OFFICER FURTHER CONCLUDED THAT T HE SEIZED MATERIALS PJP - 5, JTP - 4 AND KRS - 2 CONTAIN ED THE DETAILS OF DONATIONS RECEIVED BY T HE GOVERNING BODY MEMBERS FROM STUDENTS, THE AMOUNT GIVEN BY THE GOVERNING BODY MEMBERS TO THE I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 8 T RUST AND THE AMOUNT APPROPRIATED BY THEM. THE ASSESSING OFFICER OBSERVED THAT ADMISSION TO THE MANAGEMENT QUOTA SEATS W ERE DONE BY THE THREE GOVERNING BODY MEMB ERS TOGETHER DURING THE PERIOD FROM F.Y. 2002 - 03 TO 2006 - 07. THE ASSESSING OFFICER FOUND THAT THE ADMISSION IN 2007 - 08 WAS CONTROLLED BY SRI JOSE THOMAS AND SMT. GRACYBA B U I N 2008 - 09 , SRI JOSE THOMAS AND SMT. GRACYBABU TOGETHER AND SRI. P.J. POULOSE INDEPE NDENTLY HA D FILLED UP THE MANAGEMENT QUOTA SEATS. IT WAS NOTICED FROM THE ACCOUNTS OF THE TRUST THAT NO AMOUNT OF DONATION RECEIVED FROM STUDENTS WAS ACCOUNTED IN ITS ACCOUNTS. IN THE SWORN STATEM ENTS RECORDED U/S 132 OF THE I. T . ACT , IT WAS ADMITTED BY TH E TRUSTEES THAT DURING MANAGEMENT QUOTA ADMISSIONS A LUMP SUM FEE WAS COLLECTED FROM THE STUDENTS WHICH WAS KEPT WITH THE TRUSTEES AND NOT REFLECTED IN THE COLLEGE ACCOUNTS. DETAILS OF THE DONATIONS RECEIVED BY THE GOVERNING BODY MEMBERS ARE AS FOLLOWS: ASSES S MENT YEAR DONATIONS FROM STUDENTS COLLECTED DONATIONS HANDED OVER TO THE TRUST. DONATIONS ACCOUNTED BY THE TRUST. DONATIONS SHARED BY TRUSTEES AS PER SEIZED MATERIAL. PERCENTAGE OF DONATION SHARED BY THE TRUSTEES. 2003 - 04 NIL NIL NIL NIL NIL 2004 - 05 RS. 47,31,000 - COMMISSION RS. 25000 RS. 47,06,000/ - RS. 27,84,000/ - RS.19,04,000/ - 33.33% 2005 - 06 RS.31, 67,000/ - RS.20,63,000/ - NIL RS. 11,04,000/ - 33.33% 2006 - 07 RS. 15,07,300/ - RS. 7,57,300/ - NIL RS. 7,50,000/ - 33.33% I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 9 2007 - 08 RS. 76,92,450/ - RS.67,94,950/ - NIL RS. 8,97,500/ - PJ POULOSE RS.7,27,500/ - JOSE THOMAS RS. 1,70,000 / - GRACYBABU RS. 0 2007 - 08 LAPSED SEAT RS. 17,94,750/ - NIL NIL RS. 17,94,750/ - PJ POULOSE RS.6,39,000/ - JOSE THOMAS RS.11,55,750 / - 2008 - 09 NO ACCOUNTS SEEN 2009 - 10 RS.1,93,55,000 RS.2,11,93,500 NIL NIL NIL NIL RS.1,93,55,000 RS.2,11,93,500 GRACYBABU 50% JOSE THOMAS 50% 5.4 THE ASSESSING OFFICER FURTHER NOTICED THAT O UT OF THE TOTAL SEATS FOR ADMISSION 50% ARE FILLED UP BY THE GOVERNMENT AND TH E BALANCE 50% WAS FILLED UP BY THE MANAGEMENT. ACCORDING TO THE ASSESSING OFFICER, THE FEES THAT WAS C OLLECTED FROM STUDENTS ADMITTED IN THE MANAGEMENT QUOTA WERE FIXED BY THEGOVERNMENT BUT THE GOVERNING BODY MEMBERS OF TH E TRUST COMPRISING OF THECHAIRPERSON, THE SECRETARY AND THE TREASURER USED TO GET AMOUNTS IN EXCESS OFPRESCRIBED FEES FOR GIVING ADMISSION TO THE MANAGEMENT QUOTA SEATS AND THE AMOUNTS SO COLLECTED BEING CAPITATION FEE OR DONATION WAS TERMED BY THEM AS ADVA NCE FEE. IT WAS NOTICED THAT T HE DONATION SO COLLECTED FROM STUDENTS IN THE MANAGEMENT QUOTA WAS NOT I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 10 ACCOUNTED IN THE ACCOUNTS OF THE COLLEGE AND THE TRUST. IT WAS SHARED AMONG THE GOVERNING BODY MEMBERS AND UTILIZED BY THEM. 5.5 BEFORE THE ASSESSING OFFICER, THE ASSESSEE THAT THE ASSESSEE DID NOT PERSONALLY RECEIVE ANY DONATIONS FROM STUDENTS FOR ADMISSION TO THE MANAGEMENT QUOTA ; DONATION IF ANY RECEIVED WAS RECEIVED BY THE TRUST AND UTILIZED BY THE TRUST AND HENCE , IT WA S ASSESSABLE IN THE CASE OF TH E TRUST. THE ASSESSEE DID NOT RECEIVE ANY ALLOWANCE OR ANY OTHER AMOUNT FROM THE TRUST OTHER THAN WHAT IS SPECIFICALLY INCLUDED IN THE ACCOUNTS OF THE TRUST. THE TRANSACTIONS AS ENTERED IN THE SEIZED MATERIALS PJP - 5, JTS - 4 AND KRS - 2 W E RE TOTALLY DENIED BY THE ASSESSEE. ACCORDING TO THE ASSESSEE, T HESE ACCOUNTS HA D NO RELEVANCE TO THE ACTUAL ACCOUNTS OF THE TRUST AND THEY WERE ONLY SOME NOTING WHICH HA D NO EVIDENTIARY VALUE. WITH REGARD TO THE INTEREST DUE ON AICTE DEPOSIT , IT WAS CLAIMED THAT THE INTEREST O N THE DEPOSIT WAS DUE ON MATURITY ONLY , I . E. 25.2 . 2012. IT WAS EXPLAINED THAT THE CORRECT RENTAL INCOME WAS COMPUTED BY THE ASSESSEE AND INCLUDED IN THE RETURN FILED U/S 153A OF THE IT ACT, 1961. AS AN EXPLANATION FOR THE SOURCE OF FUNDS FOR THE CREDITS IN BANK ACCOUNTS THE ASSESSEE STATED TH AT HE OWNED 5 ACRES OF RUBBER ESTATE, THE TREES STANDING IN THOSE ESTATES WERE SOLD IN 1996 FOR REPLANTING AND HE HAD RECEIVED APPROXIMATELY RS.15 LAKHS FOR THOSE RUBBER TREES IN 1996 AND CASH RECEIVED ON SALE OF RUBBER TREES WAS AVAILABLE WITH HIM AS CASH FOR INVESTMENTS IN BANKS AND OTHER EXPENSES. ACCORDING TO THE ASSESSING OFFICER O THER THAN THE MERE STATEMENT, NO EVIDENCE OF I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 11 THE SALE OF RUBBER TREES OR EVIDENCE TO SHOW THE POSSESSION OF CASH WAS FURNISHED BY THE ASSE SSEE.WITHOUT PREJUDICE TO HIS CONTENTION THAT HE DID NOT RECEIVE ANY DONATIONS FROM STUDENTS FOR ADMISSION TO THE MANAGEMENT QUOTA , HE HA D REQUESTED THAT IFTHE DONATION RECEIVED WAS ASSESSED IN HANDS AS PROPOSED THE AMOUNTS GIVEN BY HIM TO THE TRUST WERE T O BE EXCLUDED AS IT HA D ALREADY BEEN UTILIZED FOR THE BENEFIT OF THE TRUST. BUT THE ASSESSING OFFICER NOTICED THAT THE DONATIONS RECEIVED BY THE TRUSTEES WERE NOT ACCOUNTED BY THE TRUST AND EV EN PART OF THE AMOUNT WHICH THE TRUSTEES HAD HANDED OVER TO THE TRUST FOR INVESTMENT WAS SEEN NOT INCLUDED IN THE ACCOUNTS OF THE TRUST. THE ASSESSING OFFICER NOTED THAT T HE ACCOUNTS OF THE TRUST UP TO 2006 HA D BEEN MADE BY THE TRUSTEES WHO HAD RECEIVED THE DONATIONS I . E., THE CHAIRPERSON, SECRETARY AND THE TREASURER. FROM THE FACTS FOUND FROM THE SEIZED MATERIALS THE ACCOUNTS MAINTAINED BY THE TRUST AND THE STATEMENTS GIVEN BY THE TRUSTEES , THE ASSESSING OFFICER NOTICED THAT THE TRUSTEES HAD COLLECTED DONATIONS FROM STUDENTS USING THEIR OFFICIAL CAPACITY AS TRUSTEES F OR GIVING ADMISSION TO STUDENTS IN MANAGEMENT QUOTA AND THEY DID NOT CONSIDER IT AS A RECEIPT OF THE TRUST. HENCE , THEY DID NOT INCLUDE THE DONATIONS IN THE ACCOUNTS OF THE TRUST AND THE F UNDS SO RECEIVED HAD BEEN KEPT SEPARATELY BY THE TRUSTEES. IT WAS N OTICED THAT P ART OF IT HAS BEEN UTILIZED BY THEM FOR THEIR PERSONAL PURPOSES AND PART HANDED OVER TO THE TRUST FOR INVESTMENT/EXPENSES. FURTHER, S OME OF THE FUNDS RECEIVED HA D BEEN DRAWN AS ALLOWANCES BY THE TRUSTEES WHICH WAS ALSO NOT ACCOUNTED IN THE TR UST AND P ART OF THE FUND WAS UTILIZED FOR GIVING TO AND RECEIVING I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 12 FROM THE TRUST. IN SHORT , IT WAS NOTICED THAT A SEPARATE ACCOUNT OF THE FUND COLLECTED FROM STUDENTS WAS MAINTAINED BY THE ASSESSEE AND THE CO - TRUSTEES. ACCORDING TO THE ASSESSING OFFICER, T HE CLAIM OF THE ASSESSEE THAT IT DID NOT RECEIVE DONATIONS FROM STUDENTS IN HIS INDIVIDUAL CAPACITY WAS CONTRARY TO HIS OWN STATEMENTS GIVEN CONSEQUENT TO THE SEARCH. THE OTHER TRUSTEES, SMTGRACYBABU AND SRI PJ POULOSE HAD ALSO ADMITTED THAT THEY HAD RECEIV ED AMOUNTS FROM STUDENTS IN ADDITION TO THE PRESCRIBED FEES AND THAT THEY HA D INVESTED THE AMOUNTS SO RECEIVED IN THEIR NEW TRUSTS/OTHER INVESTMENT THOUGH SHRI JOSE THOMAS AND S MT. GRACYBABU DENIED IN COME FROM DONATIONS RECEIVED FROM STUDENTS. S H RI . P . J . POUL OSE HAD FILED RETURNS OF INCOME ADMITTING INCOME FROM DONATIONS RECEIVED FROM STUDENTS AS PER THE ACCOUNTS SEIZED AS PJP - 5. SHRI JOSE THOMAS IN HIS STATEMENT DATED 19.3.2009 HAD STATED THAT HE HAD APPROXIMATELY RS.60 LAKHS AS INCOME FROM DONATIONS RECEIVED FROM STUDENTS. HE HAD EXPRESSED HIS WILLINGNESS TO DECLARE THE INCOME AND PAY TAX ON THE AMOUNT. REJECTING THE CONTENTIONS OF THE ASSESSEE, THE ASSESSING OFFICER TOOK THE ENTIRE AMOUNT COLLECTED FROM STUDENTS AND 1/3 RD EACH WAS TAKEN AS THE SHARE OF THE TRUSTEES AND ADDED TO THE INCOME OF THE TRUSTEES. 6. BEFORE THE CIT(A) , IT WAS SUBMITTED THAT I N CASE IT IS HELD TO BE A CASE OF COLLECTION MADE BY TRUSTEES IN THEIR INDIVIDUAL CAPACITY FOR SPECIFIC SERVICES PROVIDED TO THE STUDENTS, THE MONEY HA D TO BE ALLOCATED AMONGST OTHER TRUSTEES ALSO AS THE SO CALLED THREE TRUSTEES ARE THE HEADS OF FAMILY AND ARE ACTING ON BEHALF OF OTHER I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 13 TRUSTEES ALSO. IT WAS SUBMITTED THAT N O MATERIAL WAS IN POSSESSION OF THE ASSESSING OFFICER TO PROVE THAT THE OTHER MEMBERS OF THE FAMILY HAD CONVEYED THEIR RIGHT TO THE SO CALLED BENEFITS FROM THE TRUST IN FAVOR OF FAMILY HEADS. HENCE, IT WAS SUBMITTED THAT THE ASSESSMENT OF ENTIRE DONATION IN THE HANDS OF THREE FAMILY HEADS WAS NOT IN ORDER. 6.1 FURTHER , IT WAS SUBMITTED THAT THE ASSESSMENT OF EXCESS FEE/DONATION IN THE HANDS OF THE TRUSTEES WAS SOLELY BASED ON THE SEIZED MATERIALS PJP - 5, TJP - 4 AND KRS - 2. IT WAS SUBMITTED THAT T HE AMOUNT HANDED OVER TO THE TRUST OUT OF COLLECTION SHOWN IN THE TABL E WAS IGNORED BY THE ASSESSING OFFICER IN COMPUTING THE INCOME OF VARIOUS YEARS AND A LSO THE ALLOCATION WAS NOT MADE ON THE BASIS OF THE INFORMATION AVAILABLE IN THE SEIZED MATERIALS WHICH WERE SHOWN IN THE TABLE IN RESPECT OF A.YS2007 - 08 TO 2009 - 10 . FURTHER , FOR THE A.Y.2008 - 09 THERE WAS NO MATERIAL SEIZED EVIDENCING RECEIPT OF DONATION BY THE TRUSTEES. IT WAS SUBMITTED THAT I NFORMATION FOR RECEIPT OF RS . 2,11,93,500 / - WAS FOR A Y 2007 - 08 , BUT A TOTAL SUM OF RS.2,11,93,500/ - WAS ASSESSED ON ESTIMATE BASIS IN THE HANDS OF GRACYBABU AND J OSE THOMAS FOR THAT ASSESSMENT YEAR 2008 - 09 AS WELL. IT WAS SUBMITTED THAT I NCOME PART IN THE SEIZED MATERIALS WAS CONSIDERED BY THE DEPARTMENT BUT THE DETAILS OF DISTRIBUTION/SHARING OF INCOME AVAILABLE IN THE SAME MATERIALS WAS IGN ORED. IT IS WELL SETTL ED POSITION OF LAW THAT ONCE A DOCUMENT IS RELIED ON AS EVIDENCE, IT HAS TO BE DONE IN TOTO. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 14 6.2 IT WAS SUBMITTED THAT THE TOTAL AMOUNT COLLECTED FOR A.YS 2004 - 05 TO 2007 - 08 AS PER THE SEIZED MATERIALS WHICH WAS SHOWN IN THE T ABLE COMES TO RS.1,70,72 , 750 / - AND O UT OF THIS RS. 1,23,99,250 / - HAS BEEN HANDED OVER TO THE COLLEGE/TRUST IN THOSE YEARS ITSELF AS PER THE SAME SEIZED MATERIALS AS WAS SHOWN IN THE TABLE PREPARED BY THE ASSESSING OFFICER. THE RETURN OF SUBSTANTIAL PART OF COLLECTION IN THE YEAR OF C OLLECTION ITSELF SHOWED THAT THE COLLECTION OF DONATION WAS ON BEHALF OF THE TRUST ONLY AND THE GROSS AMOUNT OF COLLECTION SOLELY BELONGED TO THE TRUST/COLLEGE. HENCE, T HE ASSESSMENT OF DONATION IN THE HANDS OF TRUSTEES WAS THEREFORE NOT IN ORDER. 6. 3 I T WAS SUBMITTED THAT M ERE RECEIPT OF MONEY WOULD NOT CONSTITUTE INCOME IN THE HANDS OF RECIPIENT. IT MAY BE BY WAY OF LOAN, GIFT OR RECEIPT ON BEHALF OF OTHERS. IT WAS SUBMITTED THAT THE MONEY RECEIVED BY THE TRUSTEES WAS PAID BY THE STUDENTS WHO GOT ADMIS SION IN THE COLLEGE RUN BY THE TRUST. IT WAS FEE COLLECTED FOR THE COURSES CONDUCTED IN THE COLLEGE IN EXCESS OF THE FEES FIXED BY THE GOVERNMENT. IT WAS SUBMITTED THAT I N CASE IT CANNOT BE CONSIDERED AS COURS E FEE AS THE FEE WAS ALREADY FI XED BY THE GOVERNMENT, IT WOULD TAKE THE CHARACTER OF DONATION OR VOLUNTARY CONTRIBUTION ONLY BY THE STUDENTS. IT WAS SUBMITTED THAT D ONATION OR VOLUNTARY CONTRIBUTION DID NOT COME UNDER THE PURVIEW OF INCOME CHARGEABLE TO TAX AND P ROVISIONS OF SECTION 56 (V) WILL NOT ATTRACT AS THERE WAS CONSIDERATION IN THE FORM OF A SEAT FOR THE STUDENT IN THE COLLEGE. IN CASE OF ABSENCE OF ADEQUATE CONSIDERATION , IT CAN BE A VOLUNTARY CONTRIBUTION. THE ASSESSEE SUBMITTED THAT I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 15 V OLUNTARY CONTRIBUTION WOULD CONSTITUTE INCO ME WITHIN THE MEANING OF SECTION 2(24)(IIA) OF THE ACT. BUT SUCH CONTRIBUTION RECEIVED BY THE TRUST OR ANY OTHER ON BEHALF OF THE TRUST CAN BE CONSIDERED AS INCOME OF THE TRUST ONLY AND NOT AS INCOME OF THE RECIPIENT. 6.4 THE CIT(A) DIRECTED THE ASSESSI NG OFFICER TO ADOPT THE SHARE OF DONATION AS PER THE SEIZED MATERIAL AFTER DEDUCTING THE EXPENSES AND THE AMOUNT REFUNDED FOR THE ASSESSMENT YEARS 2004 - 05 TO 2007 - 08 AND THE ACTUAL AMOUNT RECEIVED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009 - 10 IS RS.62,9 5,000/ - . HOWEVER, THE CIT(A) OBSERVED THAT ON THE SAME PAGE OF THE SEIZED DOCUMENT, THE ASSESSEES SHARE WAS MENTIONED AS RS. 1,01,88,875/ - , OUT OF WHICH HE HAD TAKEN CASH OF RS.62,95,000/ - AND BALANCE WAS PAYABLE TO HIM. SINCE THE TOTAL SHARE WAS RS.1,0 1,88,875/ - , THE CIT(A) CONFIRMED THE ADDITION TO THIS EXTENT AND AS NO EVIDENCE WAS AVAILABLE ON RECORD FOR AY 2008 - 09, THE ENTIRE ESTIMATED ADDITION ON ACCOUNT OF DONATION WAS DELETED. 6.5 AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. 6.6 THE LD. DR RELIED ON THE ORDER OF THE CIT(A). I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 16 6.7 WE HAVE HEAR D THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IN OUR OPINION, THE CIT( A) PASSED A DETAILED ORDER STATING THAT THERE IS EVIDENCE IN THE FORM OF SEIZED MATERIAL MARKED AS TP - 4, TP - 5 KRS PLACED IN THE PAPER BOOK IN PAGES 77, 78&79. IT IS ALSO SUPPORTED BY SWORN STATEMENT OF SHRI JOSE THOMAS ON 19/03/2009 AND ALSO OF SMT. GRACY BABU ON 04/03/2009 PLACED AT PAPER BOOKS AT PAGES 1 - 11 AND 30 - 32. BEING SO, WE DO NOT FIND ANY FORCE IN THE ARGUMENT OF THE LD. AR IN PLEADING THAT COLLECTION OF UNACCOUNTED FEES SHOULD BE ALLOCATED AMONG THE TRUSTEES OF THE TRUST. ACCORDINGLY, WE CONFIR M THE FINDINGS OF THE CIT(A). THUS, THE APPEALS OF THE ASSESSES IN ITA NOS. 27, 28, 29, 30, 32, 33 & 34/COCH/2019 ARE DISMISSED. ITA NOS. 31 & 35/COCH/2019 : BY JOSE THOMAS & GRACY BABU : AY 2009 - 10 7 . THE COMMON GROUND IN ITA NO. 31/COCH/2019 IN THE CASE OF SHRI JOSE THOMAS AND ITA NO. 35/COCH/2019 IN THE CASE OF SMT. GRACY BABU FOR THE ASSESSMENT YEAR 2009 - 10 IS WITH REGARD TO ASSESSME NT OF EXTRA FEE COLLECTED FROM STUDENTS AS THE INCOME OF THE FAMILY HEAD OF THE TRUSTEES INSTEAD OF EQUALLY ALLOCATIN G AMONG THE TRUSTEES. THE FACT THAT THE ACTUAL AMOUNT RECEIVED BY THE FAMILY WAS RS.62,95,000/ - AND THE ASSESSING OFFICER HAD ADOPTED THE FIGURE OF RS.1,0 5 , 96 ,75 0 / - AT 50% AT RS.2,11,93,500/ - WAS IGNORED BY THE OFFICER. THE CIT(A) CONFIRMED IT AT RS.1,01 ,88,875/ - IGNORING THE SUBMISSION OF THE ASSESSEE. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 17 7.1 THE CIT(A) OBSERVED THAT AS PER SEIZED MATERIAL JTP - 4 (PAGE 11) THE TOTAL AMOUNT OF DONATION RECEIVED WAS RS.2,11,93,500/ - . OUT OF THIS SUM A SUM OF RS.31,12,750/ - HAD BEEN INCURRED TOWARDS EXPENSES. THE ASSESSEE RECEIVED ONLY RS.62,95,000/ - AS CASH DURING THE YEAR AND SMT. GRACY BABU WAS PAID A SUM OF RS.6,00,000/ - ONLY. THE CIT(A) FOUND THAT THE SEIZED MATERIAL PJP - 5, JTP - 4 AND KRS - 2 CONTAINED THE DETAILS OF SHARING OF DONATION AMONG THE TRUSTEES AND THE SHARE OF DONATION RECEIVED BY THE TRUSTEES FOR THE AY 2003 - 04, 2004 - 05, 2006 - 07, 2007 - 08 WAS FOUND TO BE THE SAME. THE CIT(A) OBSERVED THAT FOR AY 2005 - 06, THE AMOUNT ACTUALLY SHARED AMONG THE TRUSTEES AS PER THE SEIZED RECORD WAS CORRECTLY GIVEN BY THE ASSESSEE. FOR THE AY 2009 - 10, THE ASSESSEE HAD TAKEN THE ACTUAL CASH RECEIVED BY THE TRUSTEES AS THEIR SHARE OF DONATION. THE ASSESSEE SUBMITTED THAT THE AMOUNT RECEIVED DURING THE YEAR CAN ONLY BE TAXED. FROM THE SEIZED RECORDS, THE CIT(A) OBSER VED THAT T HE PLEA OF THE ASSESSEE WAS CORRECT FOR ALL THE YEARS. THE ACTUAL AMOUNT RECEIVED BY THE ASSESSEE AS PER THIS IS AS FOLLOWS: JOSE THOMAS GRACYBABU AY 2003 - 04 NIL NIL AY 2004 - 05 6,33,677 6,33,677 AY 2005 - 06 3,50,000 3,00,000 AY 2006 - 07 2,50,000 2,50,000 AY 2007 - 08 13,25,750 NIL AY 2008 - 09 NIL NIL AY 2009 - 10 62,9 5,000 6,00,000 I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 18 THE ASSESSEE HAD ALSO STATED THAT THE ADDITION ON ACCOUNT OF DONATION RECEIVED FOR THE ASSESSMENT YEAR 2008 - 09 WAS MADE ON ESTIMATE BASIS WITHOUT EVIDENCED BY ANY SEIZED MATERIAL OR ANY OTHER RECORDS INDICATING SUCH PAYMENT. THE CIT(A) DIRECTED THE ASSESSING OFFICER TO ADOPT THE SHARE OF DONATION AS PER THE SEIZED MATERIAL AFTER DEDUCTING THE EXPENSES AND THE AMOUNT REFUNDED FOR THE ASSESSMENT YEARS 2004 - 05 TO 2007 - 08 AND THE ACTUAL AMOUNT RECEIVED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009 - 10 IS RS.62,95,000/ - . HOWEVER, THE CIT(A) OBSERVED THAT O N THE SAME PAGE OF THE SEIZED DOCUMENT, THE ASSESSEES SHARE WAS MENTIONED AS RS. 1,01,88,875/ - , OUT OF WHICH HE HAD TAKEN CASH OF RS.62,95,000/ - AND BALANCE WAS PAYABLE TO HIM. SINCE THE TOTAL SHARE WAS RS.1,01,88,875/ - , THE CIT(A) CONFIRMED THE ADDITION TO THIS EXTENT AND AS NO EVIDENCE WAS AVAILABLE ON RECORD FOR AY 2008 - 09, THE ENTIRE ESTIMATED ADDITION ON ACCOUNT OF DONATION WAS DELETED. 7.2 AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE LO WER AUTHORITIES. 7.3 THE LD. DR RELIED ON THE ORDER OF THE CIT(A). 7.4 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IN THESE APPEALS, THE CONTENTION OF THE ASSESSES IS THAT ONLY ACTUAL FEES COLLECTED BY THE ASSESSEE IS TO BE ASSESSED AND THE AMOUNT RECEIVABLE CANNOT BE ASSESSED . IN I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 19 EARLIER ASSESSMENT YEARS, THE A SSESSING OFFICER HAD TAXED ONLY EXTRA FEES ACTUALLY RECEIVED AND NOT THE RECEIVABLES. T HE CIT(A) ALSO CONSIDERED ONLY THE ACTUAL RECEIPT OF EXTRA FEES RECEIVED IN OTHER ASSE SSMENT YEARS EXCEPT ASSESSMENT YEAR , 2009 - 10 . THE CIT(A) ONLY FOR THIS ASSESSMENT YEAR D IRECTED THE ASSESSING OFFICER TO TAKE THE ENTIRE EXTRA FEES BOTH RECEIVED AND RECEIVABLE. IN OUR OPINION, THE CIT(A) CANNOT FOLLOW DIFFERENT YARDSTICK FOR DIFFERENT ASSESSMENT YEARS. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO CONSIDER THE ACTUAL EXTRA FEES RECEIVED BY THE ASSESSEE TO TAX AS UNACCOUNTED INCOME . THUS, THIS GROUND OF APPEALS OF THE ASSESSES ARE PARTLY ALLOWED IN BOTH APPEALS . ACCORDINGLY, TH E APP EALS OF THE ASSESSES IN ITA NOS. 31 & 35/COCH/2019 ARE PARTLY ALLOWED. 8. ITA NOS. 54 / COCH/2019 : REVENUE APPEAL: SMT. GRACYBABU: AY 2009 - 10 ITA NO. 55/COCH/2019: REVENUE APPEAL: SHRI JOSE THOMAS: AY 2009 - 10 8.1 THESE APPEALS BY THE REVENUE IN THE CASE OF THE ABOVE ASSESSES ARE DIRECTED AGAINST THE ORDER OF THE CIT(A) - III, KOCHI DATED 08/10/2018 AND PERTAIN TO THE ASSESSMENT YEAR 2009 - 10. 8.2 THE ASSESSEES HAVE RAISED THE FOLLOWING GROUNDS OF APPEALS: 1 . THE CIT(A) RELIED ON THE NARRATION IN PAGES 13,14 & 15 OF THE AGREEMENT DATED 10/03/2009 TO ARRIVE AT HIS CONCLUSION, WHEREAS HE SHOULD HAVE RELIED ON PAGE 16, PARA TO WHERE IT WAS UNAMBIGUOUSLY STATED THAT THE ASSESSEE WOULD BE PAID RS.1 CRORE TO CLEAR THE DEBT AND LIABILITIE S OF THE TRUST ON THE DATE OF EXECUTION OF THE AGREEMENT. HENCE, THE CIT(A) DECISION IS BASED ON INACCURATE FACTS AND THIS SUM WAS NOT PART OF THE CONSIDERATION OF SALE OF AGRICULTURAL LAND. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 20 2. THE CIT(A) DISREGARDED THE FINDING B Y THE ASSESSING OFFICER THAT THE AMOUNT RECORDED AS GIVEN BACK TO THE TRUST IN THE SEIZED MATERIAL IS ALSO NOT REFLECTED IN THE BOOKS OF ACCOUNTS AS WELL AS THE ASSESSEES ACCOUNTS AS DETAILED BY THE ASSESSING OFFICER IN PAGE 13 OF THE ASSESSMENT ORDER WHE RE HE HAS HELD THAT ALL SUCH DONATIONS RECEIVED FROM THE STUDENTS IS TO BE CONSIDERED AS HAVING BEEN RECEIVED BY THE ASSESSEE, SHRI JOSE THOMAS AND SHRIPOULOSE P.J. HENCE, WHATEVER FUNDS WERE HANDED OVER TO THE COLLEGE COULD BE TREATED ONLY AS APPLICATION OF INCOME EARNED BY THE ASSESSEE AND HENCE, THE SHARE OF THE ASSESSEE OF THESE RECEIPTS IN ITS ENTIRETY SHOULD BE ASSESSED IN THIS CASE AT RS.1,05,96,750/ - . 8.3 . IT IS OBSERVED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 20 LAKHS AND THEREFORE THE CIRCULAR NO. 3/2018 DATED 11.07.2018 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) IN EXERCISE OF ITS POWER VESTED UNDER SEC. 268A(1) OF THE I.T. ACT COMES INTO PLAY, WHEREIN, THE MONETARY LIMIT FOR FILING THE APPEALS BY THE REVENUE BEFORE THE ITA T AND VARIOUS HIGH COURTS AS WELL AS APEX COURT ARE REVISED WITH AN OBJECT OF REDUCING THE TAX LITIGATION. VIDE PARA 3 OF THE SAID CIRCULAR (SUPRA), IT IS STATED THAT IN CASES WHERE THE TAX EFFECT IN THE APPEAL TO BE FILED BEFORE THE APPELLATE TRIBUNAL DOE S NOT EXCEED RS. 20 LAKHS, APPEAL SHOULD NOT BE FILED. THUS, TAKING A NOTE OF CBDT CIRCULAR NO. 03/2018 DATED 11.07.2018 AND CONSIDERING THE FACT THAT THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN RS. 20 LAKHS, THE PRESENT APPEAL DESERVES TO BE DISMISS ED AS NOT MAINTAINABLE. HOWEVER, WE MAKE IT CLEAR THAT THE ISSUE(S) RAISED IN THE INSTANT APPEAL IS LEFT OPEN TO BE EXAMINED IN THE APPROPRIATE PROCEEDINGS, IF ARISES, IN FUTURE. AT THE SAME TIME, WE ALSO MAKE IT CLEAR THAT IF THE APPEAL FALLS IN ANY OF TH E EXCEPTIONS REFERRED TO IN THE ABOVE SAID CBDT I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 21 CIRCULAR, THE REVENUE IS AT LIBERTY TO MOVE AN APPLICATION FOR RECALLING THE ORDER, IF SO, ADVISED. 8.4 ACCORDINGLY IN THE LIGHT OF CBDT CIRCULAR NO. 03/2018 DATED 11.07.2018, THE APPEAL S FILED BY THE REVENU E STANDS DISMISSED. SINCE WE HAVE DISMISSED THE APPEALS OF THE REVENUE, WE REFRAIN FROM GOING INTO THE GROUNDS RAISED BY THE REVENUE. 9. ITA NOS.208 TO 210/COCH/2019: GRACYBABU : AY 2009 - 10 TO 2011 - 12 ITA NOS.211 TO 213/COCH/2019: JOSE THOMAS: AY 2009 - 10 TO 2011 - 12 (ASSESSEE APPEALS) 9.1 THE FIRST COMMON GROUND IN ITA NOS. 208 & 2011/ COCH/ 2019 IS WITH REGARD TO RE - OPENING OF ASSESSMENT PROCEEDINGS U/S. 147 OF THE ACT WHICH WAS NOT PRESSED BEFORE US AND HENCE, IS DISMISSED AS NOT PRESSED. THUS, THIS GROUND OF APPEALS IS DISMISSED. 10. THE NEXT COMMON GROUND IN ITA NOS. 208 & 211/COCH/2019 IS WITH REGARD TO TREATMENT OF AMOUNT RECEIVED ON SALE OF AGRICULTURAL PROPERTY VIDE REGISTERED SALE DEED AS THE AMOUNT RECEIVED FOR RELINQUIS HMENT OF TRUSTEESHIP IN THE TRUST BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 22 10.1 THE FACTS OF THE CASE ARE THAT DURING THE YEAR, THE ASSESSING OFFICER HAD MADE THE FOLLOWING ADDITIONS AS CONSIDERATION RECEIVED IN LIEU OF RELINQUISHMENT OF TRU STEESHIP AND TAXED UNDER INCOME FROM OTHER SOURCES. JOSE THOMAS GRACY BABU SURPLUS CONSIDERATION FROM SALE 52,02,349 1,57,62,060 OF RUBBER ESTATE @RS.10,40,470 PER ACRE CONTRACT PAYMENT 34,00,000 34,00,000 TOTAL 86,02,349 1,91,62,060 10.2 T HE SAID CONSIDERATION WAS TREATED AS RECEIPT IN LIEU OF RE LINQUISHMENT OF TRUSTEESHIP RECEIVED IN THE FORM OF SALE CONSIDERATION OF AGRICULTURAL LAND AND CONTRACT PAYMENT WAS ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES. ACCORDING TO THE ASSESSING OFFICER , SINCE THE TRUSTEES HA D RELINQUISHED THE RIGHT OF TR USTEESHIP IN A TRUST VIZ. CARMEL EDUCATION AL TRUST AND INDIRECTLY RECEIVED CONSIDERATION IN LIEU OF TRANSFER , SUCH CONSIDERATION WAS CHARGEABLE IN THE HANDS OF TRUSTEES AS INCOME UNDER THE HEAD OTHER SOURCES. 11. ON APPEAL, THE CIT(A) CONFIRMED THE FINDIN GS OF THE ASSESSING OFFICER. WITH RESPECT TO THE EXCESS PRICE RECEIVED ON SALE OF AGRICULTURE LAND @R S. 10, 40 ,400/ - FOR 5 ACRES, THE C IT(A) OBSERVED THAT THE A SSESSEES CONTENTION THAT THE SALE OF RUBBER PLANTATION IS AS PER REGISTERED SALE DEED MAY BE A V ALID CONTENTION WHEN VIEWED IN I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 23 ISOLATION. HOWEVER, WHEN VIEWED IN A HOLISTIC MANNER KEEPING IN VIEW ALL THE 3 TRANSACTIONS - SALE OF RUBBER PLANTATION, DONATION TO RELATED TRUST AND PAYMENT FOR CONSTRUCTION, THE CIT(A) OBSERVED THAT I NCOME HA D BEEN SOUGHT T O BE DIVERTED THROUGH COLORABLE TRANSACTIONS TO C REATE A VEIL OF LEGITIMACY FOR EVADING TAX ACCRUING AS A RESULT OF RECEIPT OF INCOME/ BENEFIT FOR DIRECTED AND VOLUNTARY RELINQUISHMENT OF HIS TRUSTEESHIP. AS IS EVIDENCED BY THE UNSIGNED DOCUMENT DATED 23.02.2009, THE SALE CONSIDERATION FOR ACQUIRING THE ABOVE PLANTATION WAS 6.5 CRORES WHICH WAS SUBSEQUENTLY CHANGED IN T HE REGISTERED DOCUMENTS TO RS.12.5 CRORES. MOREOVER, THOSE PLOTS OF LAND WHIC H WERE OWNED BY NON TRUSTEES WERE SOLD AT A MUCH LO WER RATE, SIMILAR TO THAT INDICATED IN THE UNSIGNED SEIZED DOCUMENT. SINCE THE SALE OF RUBBER PLANTATION WAS THE SALE OF A CAPITAL ASSET LAND, THE PROCEEDS OF SALE WAS NOT TO ATTRACT ANY TAX LIABILITY AND HENCE, THE ASSESSEE HAD DI VERTED A PART OF THE RECE IPTS FOR DIRECTED AND VOLUNTARY RELINQUISHMENT OF HIS TRUSTEESHIP, THROUGH THIS ROUTE, TO PROVIDE A GARB OF LEGITIMACY TO THE WHOLE TRANSACTION, WHILE EVADING TAX. THE CIT(A) OBSERVED THAT THE UNSIGNED DOCUMENT SEIZED DURING THE C OURSE OF SEARCH PROCEEDING S MAY BE DEFICIENT IN ITS EFFICACY WHEN USED AS A PRIMARY EVIDENCE BUT WAS A VALUABLE CORROBORATIVE EVIDENCE AS THE TOTAL VALUE OF THE TRANSACTION, INCLUDING THE PURCHASE OF RUBBER PLANTATION AND THE DIRECTED VOLUNTARY RELINQUISHMENT OF TRUSTEESHIP BY THE OLD TRUSTEES AS EVIDENCED IN THE SEIZED DOCUMENT I.E. 50 CRORE (43.5 FOR RELINQUISHME NT OF TRUSTEESHIP + 6.5 CRORE FOR RUBBER PLANTATION ) EXACTLY MATCHED THE AMOUNT WHICH IS THE SUM OF THE COLORABLE I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 24 TRANSACTIONS (37.5 FOR CONSTRUCTION PAYMENT AND DONATION TO TRUST + 12.5 FOR RUBBER PLANTATION) UNDERTAKEN BY THE ASSESSEE, AS AN AFTERTHOUGHT TO EVADE TAXES. THE CIT(A) SUSTAINED THE ASSESSEES ASSESSMENT OF INCOME OF RS . 52,02,350 / - FOR THE AY 2009 - 10 AS EXCESS PRICE RECEIVED ON SALE OF AGRICULTURE LAND @RS . 10 ,40,400/ - FOR 5 ACRES . 11.1 AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR SUBMITTED THAT TH E ASSESSEE HAD TRANSFERRED THE AGRICULTURE LAND OWNED THROUGH A REGISTERED DOCUMENT IN WHICH THE VALUE PER ACRE WAS FIXED AT RS.25,40,470/ - . HENCE, IT WAS SUBMITTED THAT NO PART OF CONSIDERATION RECEIVED CAN BE TREATED AS CONSIDERATION IN LIEU OF RELINQUI SHMENT OF TRUSTEESHIP PAID BY THE PURCHASER. MOREOVER , IT WAS SUBMITTED THAT OUT OF THE AMOUNT RS . 1,57,62,060/ - (15.15 X RS .10 ,40,400) ASSESSED IN THE HANDS OF GRACY BABU INCLUDE CONSIDERATION RELATING TO 6.25 ACRES AND 8.90 ACRES OF RUBBER ESTATE OWNED BY HER LATE HUSBAND, BABU JOSEPH WHO EXPIRED BEFORE THE DATE OF SUPPLEMENTARY DEED OF THE TRUST(25/03/2009). HENCE , IT WAS SUBMITTED THAT HE HAD NOT RELINQUISHED HIS RIGHT OF SUCCESSION AS LIFELONG TRUSTEE ON 25/03/2009 AS HIS RIGHT OF SUCCESSION AS LIFELO NG TRUSTEE EXTINGUISHED ON THE DATE OF DEATH AND NOBODY WILL ACQUIRE OR INHERIT HIS SUCH RIGHT ON THE DATE OF HIS DEATH AS THE DEATH OF THE OWNERWILL PUT AN END TO THE LIFE OF THE RIGHT AS WELL. IT WAS SUBMITTED THAT G RACY BABU AND HER TWO MAJOR SONS VIZ JUDY BABU & FRUDY BABU THOMAS WERE THE LEGAL HEIRS OF LATE BABU THOMAS. THE LD. AR SUBMITTED THAT THE I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 25 AFORESAID 8.90 ACRES OF RUBBER ESTATE OWNED BY LATE BABU THOMAS WAS TRANSFERRED FOR RS 2,26,10,197 ( RS. 25,40,470 PER ACRE) ON 25/03/2009 BY THE AFORESAID LEGAL HEIRS TO BELIEVERS C HURCH GROUP VIDE REGISTERED DOCUMENT NO . 353/ 1 /2009. HENCE , IT WAS SUBMITTED THAT THE SHARE OF GRACY BABU IN 8.90 ACRES COMES TO 2 . 97 ACRES ONLY. ACCORDING TO THE LD. AR, IF RS.10 ,40,400 / - OUT OF 25,40,470 / - WAS TAKEN AS CONSIDERATI ON IN LIEU OF RELINQUISHMENT OF TRUSTEESHIP SUCH AMOUNT TO BE CONSIDERED IN THE HANDS OF GRACY BABU COMES TO RS . 95,92,490 / - [(2.97X 10,40,400) + (6.25 X 10 ,40,400)] AND NOT RS 1,57,62,060 / - ASSESSED IN THE HANDS OF GRACY BABU. THE LD. AR SUBMITTED THAT WHILE HOLD ING THAT RS 10,40,470/ - OUT OF RS.25,40,470/ - RECEIVED AS SALE CONSIDERATION OF RUBBER ESTATE PER ACRE FORMED PART OF CONSIDERATION IN LIEU OF RELINQUISHMENT OF TRUSTEESHIP, THE ASSESSING OFFICER AND THE CIT(A) HAD IGN ORED THE AGREEMENT DATED 01/06/2010 WHERE IN THE PARTIES TO THE AGREEMENT HAD DECIDED TO AMEND THE CLAUSES IN THE AGREEMENT DATED 10/03/2009 RELATING TO THE PAYMENTS TO THE TRUSTEES FOR RELINQUISHING THE TRUSTEESHIP. 11. 2 THE LD . AR SUBMITTED THAT THE SUPPLEMENTARY DEED EXECUTED ON 25/03/2009 SHOWED THAT THE ASSESSEE AND OTHER TRUSTEES POSSESSED A RIGHT OF SUCCESSION AS LIFELONG TRUSTEES OF CARMEL EDUCATION A L TR UST AND THEY RELINQUISHED SUCH RIGHT ON 25/03/2009. THE LD. AR SUBMITTED THAT THE AFORESAID R IGHT CONSTITUTED A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14)(A) OF THE ACT. ACCORDING TO THE LD. AR, R ELINQUISHMENT OF A CAPITAL ASSET OR EXTINGUISHMENT OF ANY RIGHT THEREIN IS DEFINED TO I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 26 BE A TRANSFER OF CAPITAL ASSET IN SECTION 2(47) OF THE ACT. HENCE, IT WAS SUBMITTED THAT CONSIDERATION IF ANY, RECEIVED OR RECEIVABLE IN LIEU OF RELINQUISHMENT OF A CAPITAL ASSET OR EXTINGUISHMENT OF ANY RIGHT THEREIN WOULD CONSTITUTE CAPITAL RECEIPT ONLY AND NOT REVENUE RECEIPT. IT WAS SUBMITTED THAT THE PROFIT S AND GAINS ARISING FROM THE TRANSFER WAS, THEREFORE, REQUIRED TO BE COMPUTED UNDER THE HEAD CAPITAL GAINS IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2009 - 10. NO PART OF CONSIDERATION CAN BE CONSIDERED FOR ASSESSMENT IN THE SUBSEQUENT ASSESSMENT YEA RS ON RECEIPT BASIS. WITH REGARD TO THE COMPUTATION OF CAPITAL GAINS U/S. 48 ON THE TRANSFER AND CHARGING THE SAME U/S. 45, THE LD. AR RELIED ON THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS. B.C. SREENIVASA SHETTY (128 ITR 294) WHEREIN IT WAS HELD THAT IF THE COST OF ACQUISITION OF THE ASSET TRANSFERRED IS INDETERMINABLE NO CAPITAL GAINS CAN BE COMPUTED. IN THE ASSESSEES CASE, THE COST OF ACQUISITION OF THE ASSET TRANSFERRED WAS INDETERMINABLE OR NOT SPECIFIED IN SECTION 55 OF THE ACT. 11. 3 THE CONTENTION OF THE LD. DR IS THAT A PERSON APPOINTED AS A TRUSTEE IN A PUBLIC CHARITABLE TRUST SHALL NOT ACQUIRE ANY LEGAL OR ACTIONABLE RIGHT OVER THE PROPERTY OWNED BY THE TRUST WHICH IS SOLELY HELD FOR ATTAINMENT OF THE OBJECTIVE, CHARITABLE PURPOSE. THE LD. DR SUBMITTED THAT THE TRUSTEESHIP IN A PUBLIC CHARITABLE TRUST IS NOT A RIGHT OF THE TRUSTEE AND A TRUSTEE IS NOT ENTITLED TO RECEIVE ANY BENEFITS FROM TRUST OTHER THAN REASONABLE REMUNERATION FOR THE SERVICES RENDERED. HENCE, IT WAS SUBMITTED T HAT THE ASSESSEE HAD NO LEGAL RIGHT FOR RECEIPT OF COMPENSATION IN I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 27 LIEU OF RELINQUISHMENT OF TRUSTEESHIP. ACCORDING TO THE LD. DR, IN THE INSTANT CASE, THERE WERE COMPENSATIONS WHICH WAS RECEIVED INDIRECTLY EVEN THOUGH THE ASSESSEE DID NOT HAVE A LEGAL RIG HT TO RECEIVE ANY CONSIDERATION FOR HIS RELINQUISHMENT. HENCE, ACCORDING TO THE LD. DR, THE MONEY RECEIVED BY THE ASSESSEE IN THE GUISE OF EXCESS PRICE OF AGRICULTURAL LAND RS.10,40,400(25,40,400 15,00,000) PER ACRE FOR 5 ACRES OR CONTRACT RECEIPT UNDER THE HEAD OTHER SOURCES IN THE HANDS OF THE ASSESSEE, AS THIS RIGHT BEING NOT LEGALLY ENFORCEABLE , CANNOT BE BROUGHT INTO THE AMBIT OF DEFINITION OF CAPITAL ASSET , AND HENCE, COULD NOT BE INCOME FROM CAPITAL GAINS. THE LD. DR CONTENDED THAT THE ASSESS EE HAD RECEIVED CONSIDERATION FOR THE EASE OF CESSATION OF HIS POSITION AS TRUSTEE IN THE TRUST IN FAVOUR OF IDENTIFIED INDIVIDUALS, WHICH WAS NOT ENFORCEABLE BY LAW BUT HAD EXISTENCE IN REALITY AND HENCE, THE PAYMENT RECEIVED CAN BE ACCOUNTED FOR ONLY U NDER THE HEAD INCOME FROM OTHER SOURCES AND THE ASSESSEES PLEA OF ATTRACTING THE PROVISION OF CAPITAL GAINS CANNOT BE ACCEPTED. 11. 4 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IN THE PRESENT CASE, THERE WAS UNSIGNED AGREEMENT DATED 23/02/2009 WHEREIN THE SALE CONSIDERATION WAS SHOWN AT RS.6.5 CRORES FOR SALE OF RUBBER PLANTATION. LATER AS PER REGISTERED DEED, IT WAS CHANGED TO RS.12.5 CRORES. IN OTHER WORDS, IN DRAFT AGREEMENT, THE SALES CONSIDERATION WAS AT RS. 15 LAKHS PER ACRE. HOWEVER, IN THE REGISTERED DEED THE SALES CONSIDERATION WAS SHOWN AT RS 25,40,400/ - PER ACRE. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 28 THUSTHERE WAS DIFFERENT OF AMOUNT OF RS.15 LAKHS PER ACRE. THIS DIFFERENCE CANNOT BE CONSIDERED AS A RECEIPT FOR SALE OF AGRICULTURAL PROPERTY SINCE A SIMILAR P ROPERTY WAS SOLD BY TRUSTEES AT AROUND RS.15 LAKH S PER ACRE. ACCORDING TO THE DEPARTMENT, THE ASSESSEE ADOPTED COLOURABLE DEVICES TO RECEIVE THE AMOUNT FROM BELIEVERS CHURCH BY WAY OF INFLATING THE VALUE OF RUBBER ESTATE IN THE SALE DEED EXECUTED BY THE A SSESSES S INCE THE SALE OF RUBBER PLANTATION, BEING AGRICULTURAL LAND IS EXEMPTED FROM TAX . T HE LD. AR MADE AN ALTERNATIVE ARGUMENT THAT EVEN IFIT IS PRESUMED THAT THE CONSIDERATION WAS RECEIVED FROM BELIEVERS CHURCH WHICH WAS FOR RELINQUISHMENT OF TRUSTEESHIP IN THE TRUST WHERE IN THESE PERSONS WERE TRUSTEES , IT IS EXEMPTED AND NOT TAXABLE IN THE HANDS OF THE TRUSTEES . IN OUR OPINION, THERE IS MERIT IN THE ARGUMENT OF THE LD. AR THAT EVEN IF IT IS A CAPITAL RECEIPT, IT IS TO BE TREATED AS CONSIDERATION FOR RELINQUISHMENT OF TRUSTEESHIP IN THE TRUST AND THE COST OF ACQUISITION IS NIL AND HENCE, THE GAINIS NOT TAXABLE ON ITS TRANSFER. T HE ASSESSES ARE LIFE TIME TRUSTEES IN CARMEL EDUCATION AL TRUST WHICH IS A PUBLIC CHARITABLE TRUST. THIS TRUST WAS TAKEN OVER BY BELIEVERS CHURCH, T HIRUVALLA VIDE AGREEMENT DATED 23/02/2009 AND BY THAT AGREEMENT ALL THE ASSE TS AND LIABILITIES OF CARMEL EDUCATION AL TRUST WERE TRANSFERRED TO BELIEVERS CHURCH AND THE ASSESSES CEASED TO BE THE TRUSTE ES OF CARMEL EDUCATION AL TRUST. ACCORDING TO THE CIT(A), THE RIGHT OF TRUSTEESHIP IS NOT LEGALLY ENFORCEABLE RIGHT AND IT CANNOT BE BROUGHT INTO THE AMBIT OF DEFINITION OF CAPITAL ASSET AND THE CONSIDERATION RECEIVED ON TRANSFER CANNOT BE TREATED AS I NCOME FROM CAPITAL GAIN. THE CIT(A) TREATED IT AS INCOME FROM OTHER I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 29 SOURCES SO AS TO TAX THE SAME. THIS FINDING OF THE CIT(A) IS NOT PROPER. THE ASSESSES HEREIN WEREHOLDING TRUSTEESHIP IN THE CARMEL EDUCATION AL TRUST WHICH WAS RELINQUISHED IN FAVOUR O F TRUSTEES OF BELIEVERS CHURCH , AND THIS RIGHT IS NOTHING BUT A CAPITAL ASSET. HAD THE CARMEL EDUCATION AL TRUST SURVIVE D AS IT IS , THEN THEY HAVE THE RIGHT TO CONTINUE AS A TRUST EE THROUGHOUT THEIR LIFE TIME. ONCE IT HAS CEASED TO EXIST AND RELINQUISHED THE RIGHT OF TRUSTEESHIP IN FAVOUR OF THE NEW TRUSTEES IN BELIEVERS CHURCH, THE CONSIDERATION RECEIVED FOR SUCH RELINQUISHMENT IS NOTHING BUT A CAPITAL RECEIPT AND GAIN ON SUCH TRANSACTION CANNOT BE CONSIDERED AS INCOME FROM OTHER SOURCES. 11.5 THE CONTENTION OF THE LD. AR IS THAT SINCE THERE IS NO COST OF ACQUISITION, IT IS NOT POSSIBLE TO COMPUTE CAPITAL GAIN AS SECTION 55(2) OF THE I.T. ACT DOES NOT INCLUDE THIS KIND OF ASSET AS CAPITAL ASSET. FOR BETTER UNDERSTANDING, WE WILL EXAMINE THE PROVISIONS OF SECTION 55(2) OF THE I.T. ACT. S. 55 (2) FOR THE PURPOSES OF SECTIONS 48 AND 49, 'COST OF ACQUISITION', (A) IN RELATION TO A CAPITAL ASSET, BEING GOODWILL OF A BUSINESS OR A TRADE MARK OR BRAND NAME ASSOCIATED WITH A BUSINESS OR A RIGHT TO MANUFACTURE, PRODUCE OR PROCESS ANY ARTICLE OR THING OR RIGHT TO CARRY ON ANY BUSINESS, TENANCY RIGHTS, STAGE CARNAGE PERMITS OR LOOM HOURS (I) IN THE CASE OF ACQUISITION OF SUCH ASSET BY THE ASSESSEE BY PURCHASE FROM A PREVIOUS OWNER, MEANS THE AMOUNT OF THE PURCHASE PRICE: AND (II) IN ANY OTHER CASE NOT BEING A CASE FALLING UNDER SUB - CLAUSES ( I ) TO (IV) OF SUB - SECTION ( 1 ) OF SECTION 49SHALL BE TAKEN TO BE NIL; I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 30 (A A ) IN A CASE WHERE, BY VIRTUE OF HOLDING A CAPITAL ASSET, BEING A SHARE OR ANY OTHER SE CURITY, WITHIN THE MEANING OF CLAUSE (H) OF SECTION 2 OF THE SECURITIES CONTRACTS (REGULATION) ACT, 1956 (42 OF 1956) (HEREAFTER IN THIS CLAUSE REFERRED TO AS THE FINANCIAL ASSET), THE ASSESSEE (A) BECOMES ENTITLED TO SUBSCRIBE TO ANY ADDITIONAL FINANCIAL ASSET; OR (B) IS ALLOTTED ANY ADDITIONAL FINANCIAL ASSET WITHOUT ANY PAYMENT, THEN, SUBJECT TO THE PROVISIONS OF SUB - CLAUSES ( I ) AND (II) OF CLAUSE (B) ( I) IN RELATION TO THE ORIGINAL FINANCIAL ASSET, ON THE BASIS OF WHICH THE ASSESSEE BECOMES ENTITLED TO ANY ADDITIONAL FINANCIAL ASSET, MEANS THE AMOUNT ACTUALLY PAID FOR ACQUIRING THE ORIGINAL FINANCIAL ASSET; (II) IN RELATION TO ANY RIGHT TO RENOUNCE THE S AID ENTITLEMENT TO SUBSCRIBE TO THE FINANCIAL ASSET, WHEN SUCH RIGHT IS RENOUNCED BY THE ASSESSEE IN FAVOUR OF ANY PERSON, SHALL BE TAKEN TO BE NIL IN THE CASE OF SUCH ASSESSEE; ( III ) IN RELATION TO THE FINANCIAL ASSET, TO WHICH THE ASSESSEE HAS SUBSCRIBE D ON THE BASIS OF THE SAID ENTITLEMENT, MEANS THE AMOUNT ACTUALLY PAID BY HIM FOR ACQUIRING SUCH ASSET; AND (IIIA) IN RELATION TO ANY FINANCIAL ASSET PURCHASED BY ANY PERSON IN WHOSE FAVOUR THE RIGHT TO SUBSCRIBE TO SUCH ASSET HAS BEEN RENOUNCED, MEANS THE AGGREGATE OF THE AMOUNT OF THE PURCHASE PRICE PAID BY HIM TO THE PERSON RENOUNCING SUCH RIGHT AND THE AMOUNT PAID BY HIM TO THE COMPANY OR INSTITUTION, AS THE CASE MAY BE, FOR ACQUIRING SUCH FINANCIAL ASSET; (AB) IN RELATION TO A CAPITAL ASSET, BEING EQU ITY SHARE OR SHARE ALLOTTED TO A SHAREHOLDER OF A RECOGNISED STOCK EXCHANGE IN INDIA UNDER A SCHEME FOR DEMUTILISATION OR CORPORATISATION APPROVED BY THE SECURITIES AND EXCHANGE BOARD OF INDIA ESTABLISHED UNDER SECTION 3 OF THE SECURITIES AND EXCHANGE BOAR D OF INDIA ACT, 1992 (15 OF 1992), SHALL BE THE COST OF ACQUISITION OF HIS ORIGINAL MEMBERSHIP OF THE EXCHANGE: PROVIDED THAT THE COST OF A CAPITAL ASSET, BEING TRADING OR CLEARING RIGHTS OF THE RECOGNISED STOCK EXCHANGE ACQUIRED BY A SHAREHOLDER WHO HAS BEEN ALLOTTED EQUITY SHARE OR SHARES UNDER SUCH SCHEME OF DEMUTUALISATION OR CORPORATISATION, SHALL BE DEEMED TO BE NIL; (B) IN RELATION TO ANY OTHER CAPITAL ASSET I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 31 (I) WHERE THE CAPITAL ASSET BECOME THE PROPERTY OF THE ASSESSEE BEFORE THE 1 ST DAY OF APRIL, 1981, MEANS THE COST OF ACQUISITION OF THE ASSET TO THE ASSESSEE OR THE FAIR MARKET VALUE OF THE ASSET ON THE 1 ST DAY OF APRIL, 1981, AT THE OPTION OF THE ASSESSEE; (II) WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE BY ANY OF THE MODES SPECIFIED IN SUB - SECTION (1) OF SECTION 49, AND THE CAPITAL ASSET BECAME THE PROPERTY OF THE PREVIOUS OWNER BEFORE THE 1 ST DAY OF APRIL, 1981, MEANS THE COST OF THE CAPITAL ASSET TO THE PREVIOUS OWNER OR THE FAIR MARKET VALUE OF THE ASSET ON THE 1 ST DAY OF APRIL, 1981, AT THE OPTION OF THE ASSESSEE; ( III) WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE ON THE DISTRIBUTION OF THE CAPITAL ASSET OF A COMPANY ON ITS LIQUIDATION AND THE ASSESSEE HAS BEEN ASSESSED TO INCOME TAX UNDER THE HE AD 'CAPITAL GAINS' IN RESPECT OF THAT ASSET UNDER SECTION 46, MEANS THE FAIR MARKET VALUE OF THE ASSET ON THE DATE OF DISTRIBUTION; (V) WHERE THE CAPITAL ASSET, BEING A SHARE OR A STOCK OF A COMPANY, BECAME THE PROPERTY OF THE ASSESSEE ON (A) THE CONSOLIDATION AND DIVISION OF ALL OR ANY OF THE SHARE CAPITAL OF THE COMPANY INTO SHARES OF LARGER AMOUNT** ** **' 11.6 A BARE READING THEREOF WOULD INDICATE HOW THE LEGISLATURE CONTEMPLATES THAT INCOME CHARGEABLE UNDER HEAD 'CAPITAL GAINS' HAS TO BE COMPUTED. THE MODE OF COMPUTATION IS LAID DOWN BY SECTION 48, WHEREAS BY SECTION 49, THE COST WITH REFERENCE TO CERTAIN MODES OF ACQUISITION HAS BEEN SET OUT. FOR THE PURPOSES OF BOTH SECTIONS, THE LEGISLATURE HAS DEVISED THE SCHEME IN SECTION 55 AND SUB - SECTION (2) THEREOF CLARIFIES THAT FOR THE PURPOSES OF SECTIONS 48 AND 49. 'COST OF ACQUISITION' IN RELATION TO A CAPITAL ASSET, BEING GOODWILL OF A BUSINESS OR A TRADE MARK OR BRAND N AME ASSOCIATED WITH A BUSINESS OR A RIGHT TO MANUFACTURE, PRODUCE OR PROCESS ANY I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 32 ARTICLE OR THING OR RIGHT TO CARRY ON ANY BUSINESS, TENANCY RIGHTS, STAGE CARRIAGE PERMITS OR LOOM HOURS HAS TO BE COMPUTED. IN THIS CASE, THE A SSESSEE STATED THAT NOTHING OF THESE THINGS WOULD COVER THE RELINQUISHMENT OF TRUSTEESHIP AND IN THE ABSENCE OF A SPECIFIC PROVISION, THE INCOME SHALL BE TAKEN AS NIL . 11 . 7 IN T HE CASE OF CADELL WEAVING MILL CO. (P.) LTD. (273 ITR 1),THE ARGUMENT BEFORE THE SUPREME COURT WAS ARISING OUT OF THE RETURN OF INCOME OF THE A SSESSEE . T HE AMOUN T RECEIVED BY THE A SESSEE ON SURRENDER OF TENANCY RIGHT, WHETHER LIABLE TO CAPITAL GAINS UNDER SECTION 45 OF THE INCOME TAX ACT, 1961 WAS INVOLVED IN THAT A PPEAL BEFORE THE SUPREME COURT. THERE WAS A LEASE AGREEMENT ENTERED INTO IN THE YEAR 1959 FOR 50 YEARS, UNDER WHICH, THE ANNUAL RENT WAS PAID BY THE LESSEE TO THE LESSOR. THE LEASE WOULD HAVE CONTINUED TILL 2009 . HOWEVER, DURING THE RELEVANT PREVIOUS YEAR I.E. IN MARCH, 1986, THE ASSESSEE SURRENDERE D TENANCY RIGHTS PREMATURELY AND RECEIVED A SUM OF 35 LACS. THAT SUM WAS CREDITED TO THE RESERVE AND SURPLUS ACCOUNT, WHICH WAS DISALLOWED BY THE ASSESSING OFFICER, HOLDING THAT IT WAS INCOME FROM OTHER SOURCE S . THE A SSESSEE APPEALED TO THE COMMISSIONER, W HO CAME TO THE CONCLUSION THAT THE A SSESSEE WAS LIABLE TO PAY TAX ON CAPITAL GAINS ON THE AMOUNT OF RS.35 LACS AFTER DEDUCTING AN AMOUNT OF RS.7 LACS AS COST OF ACQUISITION. THE DEPARTMENT AND A SSESSEE CHALLENGED THE DECISION BEFORE THE TRIBUNAL AND THE TR IBUNAL RELIED UPON THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF CIT V. B.C. SR INIV ASA SHE T TY [1981] 128 ITR AN D THE AMENDMENT TO SECTION I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 33 55(2) OF THE INCOME TAX ACT AND HELD THAT THE A SSESSEE DID NOT INCUR ANY COST TO ACQUIRE THE LEASEHOLD RIGHTS AND THAT IF AT ALL ANY COST HAD BEEN INCURRED IT WAS INCAPABLE OF BEING ASCERTAINED. IT WAS THEREFORE HELD THAT SINCE THE CAPITAL GAINS COULD NOT BE COMPUTED AS ENVISAGED IN SECTION 48 OF THE INCOME TAX ACT, THEREFORE, CAPITAL GAINS EARNED BY THE ASSESSEE, IF ANY, WAS NOT EXIGIBLE TO TAX. THE DEPARTMENT'S APPEAL TO THE HIGH COURT WAS DISMISSED AND THAT IS HOW IT APPROACHED THE HON'BLE SUPREME COURT. IN DEALING WITH THE RIVAL CONTENTIONS, THE HON'BLE SUPREME COURT HELD AS UNDER: '(8) IN 1981 THIS COURT IN CIT V. B.C. SRINIVASA SHE TTY (1981) 128 ITR 294; (1981) 2 SCC 460 HELD THAT ALL TRANSACTIONS ENCOMPASSED BY SECTION 45 MUST FALL WITHIN THE COMPUTATION PROVISIONS OF SECTION 48. IF THE COMPUTATION AS PROVIDED UNDER SECTION 48 COULD NOT BE APPLIED TO A PARTICULAR TRANSACTION, IT MUST BE REGARDED AS 'NEVER INTENDED BY SECTION 45 TO BE THE SUBJECT OF THE CHARGE'. IN THAT CASE, THE COURT WAS CONSIDERING WHETHER A FIRM WAS LIABLE TO PAY CAPITAL GAINS ON THE SALE OF ITS GOODWILL TO ANOTHER FIRM. THE COURT FOUND THAT THE CONSIDERATION RECEIVED FOR THE SALE OF GOODWILL COULD NOT BE SUBJECTED TO CAPITAL GAINS BECAUSE THE COST OF ITS ACQUISITION WAS INHERENTLY INCAPABLE OF BEING DETERMINED. PATHAK J. AS HIS LORDSHIP THEN WAS, SPEAKING FOR THE COURT SAID (PAGE 300) 'WHAT IS C ONTEMPLATED IS AN ASSET IN THE ACQUISITION OF WHICH IT IS POSSIBLE TO ENVISAGE A COST. THE INTENT GOES TO THE NATURE AND CHARACTER OF THE ASSET, THAT IT IS AN ASSET WHICH POSSESS THEINHERENT QUALITY OF BEING AVAILABLE ON THE EXPENDITURE OF MONEY TO A PERSON SEEKING TO ACQUIRE IT. IT IS IMMATERIAL THAT ALTHOUGH THE ASSET BELONGS TO SUCH A CLASS IT MAY, ON THE FACTS OF A CERTAIN CASE, BE ACQUIRED WITHOUT THE PAYMENT OF MONEY' (9) IN OTHER WORDS, AN ASSET WHICH IS CAPABLE OF ACQ UISITION AT A COST WOULD BE INCLUDED WITHIN THE PROVISIONS PERTAINING TO THE HEAD 'CAPITAL GAINS' AS OPPOSED TO ASSETS IN THE ACQUISITION OF WHICH NO COST AT ALL CAN BE CONCEIVED. THE PRINCIPLE PROPOUNDED IN B.C. SRINIVASA SHETTY (1981) 128 ITR 294 (SC)HAS BEEN A LLOWED BY SEVERAL HIGH COURTS WITH REFERENCE TO THE CONSIDERATION RECEIVED ON SURRENDER OF TENANCY RIGHTS, ( SEE AMONG OTHERS BAWA SHIV CHARAN SINGH V. CIT I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 34 (1984) 149 ITR 29 (DELHI); CIT V. MANGTU RAM J AIPURIA (1991) 192 ITR 533 (CAL); CIT V. , JOY ICE - CREAMS (BANGALORE ) P. LTD. (1993) 201 ITR 894 (KARN.); CIT V. MARKAPAKULA AGAMMA (1987) 165 ITR 386 (AP) ; CIT V. MERCHANDISERS P. LTD. (1990) 182 ITR 107 (KER.) IN ALL THESE DECISIONS, THE SEVERAL HIGH COURTS HELD THAT IF THE COST OF ACQUISITION OF T ENANCY RIGHTS CANNOT BE DETERMINED, THE CONSIDERATION RECEIVED BY REASON OF SURRENDER OF SUCH TENANCY RIGHTS COULD NOT BE SUBJECTED TO CAPITAL GAINS TAX. (10) ACCORDING TO A CIRCULAR ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CIRCULAR NO. 684 DATED 10 TH JUNE, 1994 (1994) 208 ITR (ST.) 8 IT WAS TO MEET THE SITUATION CREATED BY THE DECISION IN B.C. SRINIVASA SHETTY (128 ITR 294) (SC) AND THE SUBSEQUENT DECISIONS OF THE HIGH COURT THAT THE FINANCE ACT, 1994, AMENDED SECTION 55(2) TO PROVIDE THAT THE COST OF ACQUISITION OF, INTER ALIA, A TENANCY RIGHT WOULD BE TAKEN AS NIL. BY THIS AMENDMENT, THE JUDICIAL INTERPRETATION PUT ON CAPITAL ASSETS FOR THE PURPOSES OF THE PROVISIONS RELATING TO CAPITAL GAINS WAS MET. IN OTHER WORDS, THE COST OF ACQUISITION WOULD BE TAKEN AS DETERMINABLE BUT THE RATE WOULD BE NIL. (11) THE AMENDMENT TOOK EFFECT FROM 1 ST APRIL, 1995 AND ACCORDINGLY APPLIED, IN RELATION TO THE ASSESSMENT YEAR 1995 - 96 AND SUBSEQUENT YEARS. BUT TILL THAT AMENDMENT IN 1995, AND THEREFORE COVERING THE ASSESSMENT YEAR IN QUESTION, THE LAW AS PERCEIVED BY THE DEPARTMENT WAS THAT IF THE COST OF ACQUISITION OF A CAPITAL ASSET COULD NOT IN FACT BE DETERMINED, THE TRANSFER OF SUCH CAPITAL ASSET WOULD NOT ATTRACT CAPITAL GAINS. THE APPELLANT NOW SAYS THAT CIT V. B.C. SRINIVASA SHETTY'S CASE [1981] 128 ITR 294 (SC) WOULD HAVE NO APPLICATION BECAUSE A TENANCY RIGHT CANNOT BE EQUATED WITH GOODWILL. AS FAR AS GOODWILL IS CONCERNED, IT IS IMPOSSIBLE TO SPECIFY A DATE ON WHICH THE ACQUISITION MAY BE SAID TO HAVE TAKEN PLACE. IT IS BUILT UP OVER A PERIOD OF TIME. DIVERSE FACTORS WHICH CANNOT BE QUANTIFIED IN MONETARY TERMS MAY GO INTO THE BUILDING OF THE GOODWILL, SOME TANGIBLE SOME INTANGIBLE. IT IS CONTENDED THAT A TENANCY RIGHT IS NOT A CAPITAL ASSET OF SUCH A NATURE THAT THE ACTUAL COST ON ACQUISITION COULD NOT BE ASCERTAINED AS A NATURAL LEGAL COROLLARY. (12) IN A. R. KRISHNAMURTHY V. CIT (1989) 176 ITR 417 THIS COURT HELD THAT IT CANNOT BE SAID CONCEPTUALLY THAT THERE IS NO COST OF ACQUISITION OF GRANT OF THE LEASE. IT HELD THAT THE COST OF ACQUISITION OF LEASEHOLD RIGHTS CAN BE DETERMINED. IN THE PRESENT CASE, HOWEVER, THE DEPARTMENTS STAND BEFORE THE HIGH COURT WAS THAT THE COST OF ACQUISITION OF THE TENANCY WAS INCAPABLE OF BEING ASCERTAINED. IN VIEW O F THE STAND TAKEN BY THE DEPARTMENT BEFORE THE HIGH COURT, WE UPHOLD THE DECISION OF THE HIGH COURT. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 35 (13) IN UNITED COMMERCIAL BANK LTD. V. CIT (1957) 32 ITR 688 (SC), IT WAS HELD THAT THE HEADS OF INCOME PROVIDED FOR IN THE SECTIONS OF THE INDIAN INCOME TAX ACT, 1922 ARE MUTUALLY EXCLUSIVE AND WHERE ANY ITEM OF INCOME FALLS SPECIFICALLY UNDER ONE HEAD, IT HAS TO BE CHARGED UNDER THAT HEAD AND NO OTHER. IN OTHER WORDS, INCOME DERIVED FROM DIFFERENT SOURCES FALLING UNDER A SPECIFIC HEAD HAS TO BE COMPUTED FOR THE PURPOSES OF TAXATION IN THE MANNER PROVIDED BY THE APPROPRIATE SECTION AND NO OTHER. IT HAS BEEN FURTHER HELD BY THIS COURT IN EAST INDIA HOUSING AND LAND DEVELOPMENT TRUST LTD. V. CIT (1961) (42 ITR 49) THAT IF THE INCOME FROM A SOURCE FALLS WITH IN A SPECIFIC HEAD, THE FACT THAT IT MAY INDIRECTLY BE COVERED BY ANOTHER HEAD WILL NOT MAKE THE INCOME TAXABLE UNDER THE LATTER HEAD. (SEE ALSO CIT V. CHUGANDAS AND CO. (1965) 55 ITR 17 (SC) . (14) SECTION 14 OF THE INCOME TAX ACT, 1961 AS IT STOOD AT THE RELEVANT TIME SIMILARLY PROVIDED THAT 'ALL INCOME SHALL FOR THE PURPOSES OF CHARGE OF INCOME TAX AND COMPUTATION OF TOTAL INCOME BE CLASSIFIED UNDER SIX HEADS OF INCOME,' NAMELY: (A) SALARIES; (B) INTEREST ON SECURITIES; (C) INCOME FROM HOUSE PROPERTY; (D) PROFITS AND GAINS OF BUSINESS OR PROFESSION; ( E) CAPITAL GAINS; (F) INCOME FROM OTHER SOURCES UNLESS OTHERWISE, PROVIDED IN THE ACT. (15) SECTION 56 PROVIDES FOR THE CHARGEABILITY OF INCOME OF EVERY KIND WHICH HAS NOT TO BE EXCLUDED FROM THE TOTAL INCOME UNDER THE ACT, ONLY IF IT IS NOT CHARGEABLE TO INCOME - TAX UNDER ANY OF THE HEADS SPECIFIED IN SECTION 14, ITEMS A TO E. THEREFORE, I F THE INCOME IS INCLUDED UNDER ANY ONE OF THE HEADS, IT CANNOT BE BROUGHT TO TAX UNDER THE RESIDUARY PROVI SIONS OF SECTION 56. (16) THERE IS NO DISPUTE THAT A TENANCY RIGHT IS A CAPITAL ASSET THE SURRENDER OF WHICH WOULD ATTRACT SECTION 45 SO THAT THE VALUE RECEIVED WOULD BE A CAPITAL RECEIPT AND ASSESSABLE IF AT ALL ONLY UNDER ITEM E OF SECTION 14. THAT BEI NG SO, IT CANNOT BE TREATED AS A CASUAL OR NON - RECURRING RECEIPT UNDER SECTION 10(3) AND BE SUBJECTED TO TAX UNDER SECTION 56. THE ARGUMENT OF THE A PPELLANT THAT EVEN IF THE INCOME CANNOT BE CHARGEABLE UNDER SECTION 45, BECAUSE OF THE INAPPLICABILITY OF TH E COMPUTATION PROVIDED UNDER SECTION 4 8 , IT COULD STILL IMPOSE TAX UNDER THE RESIDUARY HEAD IS THUS UNACCEPTABLE. IF THE INCOME CANNOT BE TAXED UNDER SECTION I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 36 45, IT CANNOT BE TAXED AT ALL . (SEE S. G. MERCANTILE CORPORATION P. LTD. V. CIT ( 1972) 83 1TR 700 (SC) . (17) FURTHERMORE, IT WOULD BE ILLOGICAL AND AGAINST THE LANGUAGE OF SECTION 56 TO HOLD THAT EVERYTHING THAT IS EXEMPTED FROM CAPITAL GAINS BY THE STATUTE COULD BE TAXED AS A CASUAL OR NON - RECURRING RECEIPT UNDER SECTION 10(3) READ WITH SECTION 56. WE ARE FORTIFIED IN OUR VIEW BY A SIMILAR ARGUMENT BEING REJECTED IN NALINIKANT AMBA LAL MODY V. S.A.L. NARAYAN ROW,C I T (1966) 61 ITR 428 (SC). 11 . 8 THUS, THE CONCLUSION OF THE SUPREME COURT IS THAT AN ASSET WHICH IS CAPABLE OF ACQUISITION AT A COST WOULD BE INCLUDED WITHIN THE PROVISIONS PERTAINING TO THE HEAD 'CAPITAL GAINS' AS OPPOSED TO ASSETS IN THE ACQUISITION OF WHICH NO COST AT ALL CAN BE CONCEIVED. THERE WAS NO COST OF ACQUISITION, WHICH WAS DETERMINED AND ON T HE B ASIS OF WHICH THE ASSESSING OFFICER COULD HAVE PROCEEDED TO LEVY AND ASSESS THE GAINS DERIVED AS CAPITAL GAINS. S UB - SECTION (2) OF SECTION 55 CLAUSE (A) HAVING BEEN AMENDED, THERE IS NO STIPULATION WITH REGARD TO RELINQUISHMENT OF TRUSTEESHIP . HOWEVER, EVEN IN THE CASE OF TENANCY RIGHT, THE VIEW TAKEN BY THE S UPREME COURT, AFTER THE PROVISION WAS SUBSTITUTED W.E.F. 1ST APRIL, 1995, IS AS ABOVE , WHICH IS SQUARELY APPLICABLE TO THE ASSESSEES CASE ALSO. THE F URTH ER ARGUMENT OF THE LD. AR IS THAT THE RELINQUISHMENT OF TRUSTEESHIP CAN NOT BE BROUGHT WITHIN THE TAX NET THOUGH IT WAS CAPABLE OF BEING TRANSFERRED. TH E S UPREME COURT H ELD THAT IT MUST BE CAPABLE OF BEING ACQUIRED AT A COST OR THAT HAS TO BE ASCERTAINAB L E , THEN ONLY TRANSFER OF CAPITAL ASSET IS SUBJECT TO TAX . A SPECIFIC INSERTION WOULD THEREFORE BE NECESSARY SO AS TO ASCERTAIN ITS CASE FOR COMPUTING THE CAPITAL GAINS. SINCE THE ASSESSEE HAD NOT INCURRED ANY COST OF ACQUISITION IN RESPECT OF GAIN ON ACCOUN T OF I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 37 RELINQUISHMENT OF TRUSTEESHIP IN CARMEL EDUCATIONAL TRUST, IT CANNOT BE BROUGHT TO TAX AS CAPITAL GAINS. ACCORDINGLY, WE HOLD THAT CAPITAL RECEIPT ACCRUED TO THE ASSESSEE IN AY 2009 - 10 AND IN THAT ASSESSMENT YEAR ON RELINQUISHMENT OF TRUSTEESHIP , WHIC H BEING A CAPITAL ASSET WAS ACQUIRED WITHOUT ANY COST OF ACQUISITION, THE SAME CANNOT BE BROUGHT TO TAX AS HELD BY THE SUPREME COURT IN THE CASE OF B.C. SRINIVASA SHETTY (SUPRA). THIS GROUND OF APPEALS OF THE ASSESSES IS ALLOWED. ITA NOS. 208, 209, 210 & 211/COCH/ 2019 : (AY 2009 - 10 TO 2011 - 12) : (ASSESSEES APPEALS) 12 . THE NEXT COMMON GROUND IN ITA NOS. 208 , 209 , 210 & 211/ COCH/2019 FOR AY 2009 - 10 TO 2011 - 12 IS WITH REGARD TO ASSESSMENT OF AMOUNT RECEIVED FOR CIVIL CONSTRUCTION WORK AS INCOME DERIVED B Y THE TRUSTEES FROM THE RELINQUISHMENT OF PUBLIC CHARITABLE TRUST WHICH WAS CHARGED UNDER THE HEAD OTHER SOURCES AND ALSO IGNORING T HE EXPENSES INCURRED. 12.1 THE FACTS OF THE CASE ARE THAT THE AGREEMENT DATED 10/03/2009 HAS PROVIDED PAYMENTS I N RELATION TO ONGOING CONSTRUCTION IN THE COLLEGE BUILDING WHICH IS PAYABLE ON COMPLETION, OUT OF RS.37.50 CRORES. A SUM OF RS.34 LAKHS EACH HAD BEEN PAID TO GRACYBABU AND JOSE THOMAS IN MARCH, 2009. ACCORDING TO AGREEMENT ENTERED INTO BETWEEN BELIEVERS CHURCH AND SEVEN OUTGOING TRUSTEES BELONGING TO THE FAMILIES OF I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 38 GRACY BABU AND JOSE THOMAS ON 01/06/2010, THE CONSTRUCTION WAS COMPLETED AND A FURTHER SUM OF RS.4.50 CRORES EACH WAS PAYABLE TO GRACY BABU AND JOSE THOMAS SUBJECT TO DEDUCTION OF TAX U/S. 19 4C OF THE I.T. ACT. ON ENQUIRY, THE COLLEGE AUTHORITIES HAD STATED THAT NO CONSTRUCTION WORK WAS CARRIED OUT BY THE OUTGOING TRUSTEES. HENCE, THE TOTAL AMOUNT OF RS.4.84 CRORES EACH RECEIVED BY GRACY BABU AND JOSE THOMAS WAS TREATED AS CONSIDERATION RECEI VED IN LIEU OF RELINQUISHMENT OF TRUSTEESHIP WHICH IS ASSESSABLE AS INCOME FROM OTHER SOURCES. 12. 1 .1 A SUM OF RS.16 CRORES WAS PAID IN JUNE 2010 BY BELIEVERS CHURCH AND SIX ASSOCIATE TRUSTS, ST. THOMAS EDUCATIONAL TRUST IN WHICH GRACY BABU AND JOSE THO MAS ARE TRUSTEES. THE PURPOSE OF THIS DONATION WAS STATED TO BE FOR RESERVING ENGINEERING SEATS FOR THE BENEFICIARIES OF THE DONOR TRUSTS. SINCE NO SUCH RESERVATION WAS GIVEN IN THE ADMISSION AND PAYMENT OF DONATION WAS MADE AFTER RELINQUISHMENT OF TRUST EESHIP THE DONATION RECEIVED BY ST. THOMAS EDUCATIONAL TRUST WAS TREATED AS CONSIDERATION RECEIVED IN LIEU OF RELINQUISHMENT OF TRUSTEESHIP BY THE OUTGOING TRUSTEES GRACY BABU AND JOSE THOMAS. AS SUCH FIFTY PERCENT OF THE DONATION OF RS.16 CRORES IS CHARG EABLE IN THE HANDS OF GRACY BABU AND JOSE THOMAS IN THE AY 2011 - 12 BY TREATING IT AS CONSIDERATION RECEIVED IN LIEU OF RELINQUISHMENT OF TRUSTEESHIP WHICH IS ASSESSABLE AS INCOME FROM OTHER SOURCES. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 39 12.1.2 IN THE LIGHT OF THE ABOVE, CONSIDERATION IN LIE U OF RELINQUISHMENT OF TRUSTEESHIP RECEIVED INDIRECTLY IN THE FORM OF CONTRACT AMOUNT AND DONATION TO TRUST WAS ASSESSED IN THE HANDS OF GRACY BABU AND JOSE THOMAS ON RECEIPT BASIS IN THE FOLLOWING MANNER: GRACYBABU EXCESS PRICE OF RUBBER ESTATE CONTRACT R ECEIPTS DONATION TOTAL AY 2009 - 10 1,57,62,060 34,00,000 1,91,62,060 AY 2010 - 11 4,50,00,000 4,50,00,000 AY 2011 - 12 8,00,00,000 JOSE THOMAS AY 2009 - 10 52,02,349 34,00,000 AY 2010 - 11 4,50,00,000 4,50,00,000 AY 2011 - 12 8,00,00,000 8,00,00,000 12. 2 ON APPEAL, THE CIT(A) OBSERVED THAT FROM ALL THE EVIDENCES GATHERED DURING THE COURSE OF SEARCH PROCEEDINGS AND ASSESSMENTS AND APPELLATE PROCEEDINGS, IT WAS BORNE OUT THAT NO CONSTRUCTION WORK HAD ACTUALLY BEEN UNDERTAKEN BY THE ASSESSEE OR ANY OF THE TRUSTEES, AGAINST THE PAYMENT WHI CH WAS MADE TO THEM IN ADVANCE OR IN FINALITY AND THE ASSESSEE HAD NOT BROUGHT OUT ANY EVIDENCE IN SUPPORT OF THE CLAIM OF HAVING UNDERTAKEN ANY CONSTRUCTION ACTIVITY. FURTHER , IT WAS OBSERVED THAT THE ASSESSEE HA D CLA IMED TO HAVE RECEIVED PAYMENT OF RS.4.8 4 CRORES SPREAD OVER ASSESSMENT YEAR 2009 - 10, 2010 - 11, 2011 - 12 AND A S MANDATED BY LAW , NOT ONLY THE ASSESSEE IS SUPPOSE D TO MAINTAIN HIS BOOKS OF ACCOUNTS BUT ALSO HAVE THE SAME AUDITED. THE CIT(A) OBSERVED THAT THE ASSESSEE HA D NOT BEEN ABLE TO PRODUCE ANY AUDIT REPORT FOR ANY OF THE RELEVANT YEARS. IT WAS OBSERVED THAT EVEN THE BANK I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 40 ACCOUNT WAS INDICATIVE OF ONLY CASH WITHDRAWALS ( IN CLUDING THOSE OVER RS.20,000/ - ) AND THERE WAS NO CHEQUE PAYMENT TO ANY PARTY FOR ANY PURCHASE O R SERVICE AND THERE WAS NO T DS DEDUCTION TO SUPPORT ANY SUB CO NTRACT WORK. ACCORDING TO THE CIT(A), THESE FINDINGS SHOWED THAT NO CONSTRUCTION WORK HA D ACTUALLY BEEN UNDERTAKEN AND THE PAYMENTS SHOWN AS CONTRACTUAL RECEIPTS WERE NOTHING BUT PAYMENT R ECEIVED FOR THE EASY AND VOLUNTARY RELINQUISHMENT OF TRUSTEESHIP IN PAYMENT IN FAVOUR OF IDENTIFIED INDIVIDUALS. ACCORDING TO THE CIT(A), THE CARMEL T RUST HA D NOT DEDUCTED ANY TDS ON THE PAYMENTS MADE TO THE ASSESSEE AND OTHER OLD TRUSTEES FOR C ONSTRUCTION WORK DURING THE ASSESSMENT YEAR S 2009 - 10 & 2010 - 11, WHEN THE PAYMENT OF RS.4.84 CRORES HA D BEEN RECEIVED BY THE ASSESSEE , I NSTEAD THE CARMEL TRUST HAD DEDUCTED TDS FOR THE AFORESAID AMOUNT DURING ASSESSMENT YEAR 2011 - 12, WHICH WAS NOT CLAIMED B Y THE ASSESSEE AND IS A CLEAR CASE OF AFTER THOUGHT. A CCORDING TO THE CIT(A), THE TOTAL AMOUNT OF PAYMENT MADE TO THE ASSESSEE INCLUDING THE TDS AMOUNT (UNCLAIMED) DOES NOT MATCH IN THE AMOUNT REFLECTED INTHE AGREEMENT. THE CIT(A) FOUND THAT THERE WAS A CR EDIT OF RS.8.68 L AKHS I N THE BOOKS OF ACCOUNTS OF CARMEL TRUST WHICH HA D GONE INTO THE TDS ACCOUNT OF GRACY B ABU FOR AY 2011 - 12 AND HA D NOT BEEN CLAIMED BY HER SO FAR AND HENCE , THE PROTECTIVE ADDITION IN THE HANDS OF THE ASSESSEE FOR AY 2011 - 12 WAS REDUCE D FROM RS.4.84 CRORES TO RS . 8.68 LAKHS. HENCE, THE CIT(A) SUSTAINED ONLY SUBSTANTIVE ADDITION OF RS.34,00,000 / - IN THE AY 2009 - 10 AND RS.4,50,00,000/ - IN I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 41 THE AY 2010 - 11 AND ALSO BROUGHT INTO TAX THE AMOUNT OF RS.8.68 LAKHS IN THE AY 2011 - 12. 12.3 AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR SUBMITTED THAT ACCORDING TO THIS AGREEMENT THE COST OF ONGOING CONSTRUCTION AGREED RS.9.68 WAS ONLY PAYABLE TO JOSE THOMAS AND GRACY BABU WHO ARE THE FAMILY HEADS AND AFTER THE EXECUTION OF THI S AGREEMENT DATED 1/06/2010 THE AMOUNT SHOWN AS PAYABLE IN THE AGREEMENT DATED 10/03/2009 RS.37.50 CRORES HAD NO RELEVANCE. THE LD. AR SUBMITTED THAT A SUM OF RS.34 LACS AND RS.4.50 CRORES EACH HAD BEEN ASSESSED IN THE CASE OF BOTH ASSESSEES IN A.Y 2009 - 1 0 AND 2010 - 11 RESPECTIVELY UNDER THE HEAD OTHER SOURCES BEING FIFTY PERCENT OF RS 9.68 CRORES .THE AMOUNTS OF RS.34 LAKHS IN THE A.Y.2009 - 10 AND 4.50 CRORES IN THE A.Y.2010 - 11 RECEIVED BY THE ASSESSEE FROM CARMEL ENGINEERING C OLLEGE WERE, IN FACT, PAYMENTS TOWARDS THE ONGOING CONSTRUCTION WORKS AS MENTIONED IN PARAGRAPH 5 OF THE AGREEMENT DATED 10/03/2009 AND PAGES 4 & 5 OF THE DEED OF .AGREEMENT DATED 01/06/2010 ENTERED INTO BETWEEN BELIEVERS C HURCH AND GRACY BABU AND HER TWO SONS AND JOSE THOMAS AND HIS TH REE FAMILY MEMBERS. THE PARTIES TO THE AGREEMENT (7 PERSONS) TOGETHER HAD COMPLETED THE CONSTRUCTION IN THE F.Y 2010 - 11 AS EVIDENCED BY CLAUSE 2 OF THE AGREEMENT DATED 01/06/2010 FOR A TO TAL AMOUNT OF RS 9.68 CRORES AND VIDE PARAGRAPH 3 OF THE SAID AGREEME NT IT WAS AGREED TO APPROPRIATE THE CONTRACT AMOUNT FROM THE AMOUNT ALREADY PAID TO THE PARTIES (7 PERSONS}. THE ASSESSING I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 42 OFFICER HAD RELIED ON THE UNSIGNED AGREEMENT AND THE AGREEMENT DATED 10/03/2009, BUT HA D IGNORED THE AGREEMENT DATED 1/06/2010 WHICH CLEARLY CONFIRM ED THE CONSTRUCTION. IT WAS SUBMITTED THAT THE AMOUNT OF RS. ONE CRORE ( ISSUE IN REVENUE S APPEAL) GIVEN TO THE ASSESSEE ON 11/03/2009 AND ASSESSED IN THEIR HANDS IN THE ORIGINAL ASSESSMENT FOR A.Y.2009 - 10 FORMS PART OF THE TOTAL AMOUNT OF RS.4.84 CRORES. HENCE ,IT WAS SUBMITTED THAT THE ADDITION MADE IN THE ORIGINAL ASSESSMENT IS TO BE DELETED AS THE SAME AMOUNT IS INCLUDED IN THE TOTAL AMOUNT OF RS.4.84 CRORES. 12. 4 THE LD. AR SUBMITTED THAT CONSTRUCTION WAS CARRIED OUT BY ALL THE SEVEN P ERSONS WHO ARE PARTIES TO THE AGREEMENT DATED 01/06/2010 AND A STATEMENT TO THAT EFFECT WAS GIVEN AS WAS AGREED IN CLAUSE 6 OF THAT AGREEMENT. TAX WAS ALSO DEDUCTED IN THE F Y 2010 - 11 U/S 194 C @ 2 PERCENT AS THE CONSTRUCTION WAS OVER AND THE AMOUNT HA D BE EN BROUGHT UNDER THE FIXED ASSET SCHEDULE OF THE CARMEL EDUCATION AL SOCIETY. IT WAS SUBMITTED THAT I N ADDITION TO THE RECEIPT OF 9.68 CRORES , THE CIT(A) HA D DIRECTED THAT THE TAX DEDUCTED ON THIS AMOUNTING TO RS.8.68 LAKHS ALSO FORMS PART OF THE CONTRACT RECEIPTS TO BE CONSIDERED IN THE ASSESSMENT FOR THE A.Y.2011 - 12. THE ASSESSEE ACTUALLY INCURRED LOSS ON THIS WORK AND BY INADVERTENCE HA D OMITTED TO CLAIM SUCH LOSS IN THE RETURN.WITH REGARD TO THE DENIAL OF CONSTRUCTI ON BY THE COLLEGE AUTHORITIES ( BELIEV ERS CHURCH) IT WAS EVIDENT FROM THEIR BALANCE SHEET AS AT 31/03/2010 THAT THEY HAD ACCOUNTED THE ENTIRE SUM RS.9.68 CRORES IN A.Y.2010 - 11 AND SHOWN THIS AMOUNT AS ADVANCE FOR WORK IN PROGRESS IN ITS I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 43 BALANCE SHEET AS ON 31.03.2010. ON COMPLETION OF THE WORK THIS AMOUNT WAS TAKEN BY THE COLLEGE IN ITS BALANCE SHEET AS ON 31.03.2011 UNDER FIXED ASSET SCHEDULE. THE ASSESSING OFFICER HAS WITHOUT PROPER INQUIRY AND WITHOUT APPRECIATING FULL FACTS STATED THAT NO WORK HA D BEEN DONE AT THE COLLEGE. ACCORDING TO THE ASSESSING OFFICER, THE COLLEGE AUTHORITIES HAD REPORTED THAT THEY HAD NOT DONE ANY CONSTRUCTION ACTIVITY DURING THE YEAR AND NOT MENTIONED ANYTHING ABOUT THE WORK DONE BY THE ASSESSEE. THE REASON FOR MAKING SUCH A STATEMENT BY THE COLLEGE AUTHORITIES (BELI EVERS CHURCH GROUP) BEFORE THE ASSESSING OFFICER IS NOT KNOWN TO THE ASSESSEE ESPECIALLY WHEN THEIR AUDITED FINANCIAL STATEMENTS SHOWED OTHERWISE. THE STATEMENT OF COLLEGE AUTHORITIES MAY BE WITH REGARD TO ANY NEW WORK ENTRUSTED WHERE AS THE PAYMENT OF RS 9.68 CRORES TO THE APPELLANT AND 6 OTHERS WAS FOR THE ONGOING WORK. 12. 5 THE LD. AR SUBMITTED THAT THE ASSESSEE HAD NOT EARNED THIS INCOME AS THE ENTIRE MONEY HA D BEEN SPENT ON CONSTRUCTION. THE QUESTION AND PRINCIPLE OF TAXING REAL INCOME NEEDS TO BE MENTIONED HERE. THE ASSESSING OFFICER HA D NO EVIDENCE IN HAND OTHER THAN THE STATEMENT BY COLLEGE AUTHORITIES TO SAY THAT THE ASSESSEE HA D NOT DONE ANY CONSTRUCTION O R HA D NO PROOF TO SHOW THAT THE ASSESSEE HAD KEPT THE ENTIRE RECEIPTS IN TACT WITHOUT SPENDING FOR THE CONSTRUCTION. THE AGREEMENTS DATED 10/03/2009 ( CLAUSE 5) AND 01/06/2010 ( CLAUSE 2 TO 6 ) CLEARLY PROVE D THAT THE ONGOING CONSTRUCTION WAS COMPLETED BY THE ASSESSEES DURING THE FINANCIAL YEAR I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 44 2010 - 11 , I . E . A.Y.2011 - 12. IT WAS SUBMITTED THAT AS SUCH THE AMOUNT OF RS 4.84 CRORES CANNOT BE ASSESSED AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES AND I F ANY INCOME IS DERIVED FROM THE CONSTRUCTION WORK , IT HAS TO BE ASSESSED AS BUSINESS INCOME IN THE ASSESSMENT YEAR 2011 - 12. HENCE , IT WAS SUBMITTED THAT THE PROFIT DERIVED FROM THE WORK CAN ONLY BE CHARGED TO TAX AND NO PROFIT WAS DERIVED BY THE ASSESSEE FROM THE WORK AS EQUAL EXPENSES WERE INCURRED IN THE EXECUTION OF ONGOING CONSTRUCTION. 12. 6 THE LD. DR RELIED ON THE ORDER OF THE CIT(A). 12. 7 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THE AMOUNTS OF RS.34,00,000/ - IN AY 2009 - 10 AND RS.4.50 CRORES IN AY 2010 - 11 EACH RECEIVED BY GRACY BABU AND JOSE THOMAS FROM WHICH IS SAID TO BE TOWARDS THE ON - GOING CONSTRUCTION WORK AS MENTIONED IN CLAUSE 5 OF THE AGREEMENT DATED 10/03/2009 AND PAGES 4 & 5 OF THE DEED OF AGREEMENT DATED 01/06/2010 ENTERED INTO BETWEEN BELIEVERS CHURCH AND GRACY BABU AND HER TWO SONS AND JOSE THOMAS AND HIS THREE FAMILY MEMBERS. THE PARTIES TO THE AGREEMENT (7 PERSONS) TOGETHER HAD COMPLETED THE CONSTRUCTION IN THE F.Y. 2010 - 11 AS EVIDENCED BY CLAUSE 2 OF THE AGREEMENT DATED 01/06/2010 FOR A TOTAL AMOUNT OF RS.9 .68 CRORES AND VIDE CLAUSE 3 OF THE SAID AGREEMENT IT WAS AGREED TO APPROPRIATE THE CONTRACT AMOUNT FROM THE AMOUNT ALREADY PAID TO THE PARTIES. CONTRARY TO THIS, THE ASSESSING OFFICER HAD RELIED ON THE I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 45 UNSIGNED AGREEMENT AND THE AGREEMENT DATED 10/03/200 9, BUT HAD IGNORED THE AGREEMENT DATED 01/06/2010 WHICH CONFIRMED THE CONSTRUCTION. CLAUSE 5 OF THE AGREEMENT DATED 10/03/2009 READS AS FOLLOWS: 5. IT IS AGREED BY THE FIRST AND SECOND PARTIES TOGETHER THAT THEY WITH THE HELP OF THEIR CHARTERED ACCOUNTANTS SHALL PREPARE ALL THE DEBTS AND LIABILITIES DURING THE ABOVE SAID PERIOD OF WITHIN SIX MONTHS SINCE FROM THE EXECUTION OF THIS AGREEMENT IN ORDE R TO CLEAR IT BY RECEIVING THE ABOVE SAID AMOUNT OF 37.50 CRORES (RUPEES THIRTY SEVEN CRORES AND FIFTY LAKHS ONLY) IN DIFFERENT INSTALMENTS AND THE FIRST PARTIES AGREE THAT THEY WILL RELEASE SUCH FUNDS WITHOUT ANY DELAY AS PER THE DEMAND OF THE SECOND PART IES. IT IS FURTHER AGREED BY THE SECOND PARTIES THAT THEY SHALL COMPLETE THE ONGOING CONSTRUCTIONS OF BUILDINGS, LANDSCAPE, HOSTELS, PLAY GROUNDS ETC. WITH APPROVE ESTIMATES AND SUPPORTING BILLS WITHIN THE SAID PERIOD AND THE 1 ST PARTY SHALL RELEASE THE S AID AMOUNT ON THE BASIS OF SUCH RECORDS FROM THE SAID AMOUNT OF RS.37.50 CRORES (RUPESS THIRTY SEVEN CRORES AND FIFTY LAKHS ONLY) PROPORTIONATELY TO EACH THREE GROUPS AMONG THE 2 ND PARTIES. CLAUSE 2 TO 6 OF THE AGREEMENT DATED 01/06/2010 READS AS UNDER: 2. THE STATEMENT OF DEBTS AND LIABILITIES AS PREPARED PURSUANT TO CLAUSE 5 OF THE AGREEMENT DOES NOT DISCLOSE ANY DEBTS OR LIABILITY AS ON THE DATE OF AGREEMENT AND THE 2 ND PARTY IS NOT ELIGIBLE FOR ANY FURTHER AMOUNT FOR THE SAID PURPOSE AS ENVISAGED I N THE AGREEMENT DATED 10/03/2009. 3. THE 2 ND PARTIES I.E. PARTIES 1 TO 3 AND PARTIES 8 TO 11 IN THE AGREEMENT DATED 10 - 03 - 2009 CAN APPROPRIATE FROM THE PAYMENT OF RS.9.68 CRORES ALREADY MADE TO THEM, SUBJECT TO DEDUCTION OF TAX AT SOURCE UNDER SECTION 194C OF THE INCOME TAX ACT, TOWARDS THE COST OF THE SAID CONSTRUCTION AS PER CLAUSE ABOVE WHICH WILL BE ACCOUNTED BY THE FIRST PARTY IN THE BOOKS OF ACCOUNTS OF THE TRUST. 4. THE 2 ND PARTY I.E. PARTIES 1 TO 3 AND 8 TO 11 CONFIRM THAT THEY HAVE NO FURTHER CLAIM FROM THE AMOUNT OF RS.37.5 CRORES AS PER CLAUSE 4 OF THE AGREEMENT OTHER THAN THE AMOUNT ALREADY APPROPRIATED TOWARDS THE COST OF CONSTRUCTION. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 46 5. THE 2 ND PARTIES 1 TO 3 AND 8 TO 11 WILL SETTLE THE ACCOUNTS IN RESPECT OF THE BALANCE AMOUNT DUE TO T HE 1 ST PARTY FROM THE PAYMENT OF RS.9 CRORES IN THE EVENT IF REQUIRES SO. 6. THE 2 ND PARTY I.E. PARTIES 1 TO 3 AND (8,9,10 AND 11) IN THE SAID AGREEMENT HAS UNDERTAKEN THE CONSTRUCTION AS PER CLAUSE 5 OF THE DEED DATED 10.03.2009, INCURRING A COST OF RS.9.68 CRORES FOR WHICH THE STATEMENT WILL BE FILED BY THE SAID PARTIES 1 TO 3 AND 8 TO 10 TO THE FIRST PARTY IN THE AGREEMENT DT.10.03.2009 WITHIN ONE MONTH FROM TODAY. 12.8 THE BELIEVERS CHURCH HAD DISCLOSED THIS CONSTRUCTION IN ITS B ALANCE S HEET AS ON 31/03/2010 AND 31/03/2011. BEING SO, THERE WAS CONSTRUCTION ACTIVITY AND THE BELIEVERS CHURCH PAID THE CONTRACT AMOUNT TO THESE TWO ASSESSES. BY ANY STRETCH OF IMAGINATION, IT CANNOT BE CONSIDERED AS AN AMOUNT PAID TOWARDS RELINQUISHMENT OF TRUSTEESHIP IN CARMEL EDUCATION AL SOCIETY . IN OUR OPINION, IT IS APPROPRIATE TO ESTIMATE T HE INCOME FROM CONSTRUCTION CONTRACT AMOUNT AT 8% FOR THESE ASSESSMENT YEARS. DIRECTED ACCORDINGLY. THUS THE APPEALS OF THE ASSESSEE IN ITA NOS. 208,209, 21 0 & 211 /COCH/2019 ARE PARTLY ALLOWED. ITA NOS. 210 & 213/COCH/2019 : ( AY 2011 - 12 ) [ASSESSEES APPEALS] 1 3. COMING TO THE APPEALS IN ITA NOS. 210 & 213/COCH/2019, THERE WAS TAX DEDUCTION BY BELIEVERS CHURCH IN RESPECT OF RS.8.68 LAKHS RELATING TO ASSESSMENT YEAR 2011 - 12. THE CIT(A) SUSTAINED THE ADDITION OF RS.8.68 LAKHS. IN OUR OP INION, THERE IS NO REASON FOR SUSTAINING THE ENTIRE ADDITION OF TDS AMOUNT AS INCOME OF THE ASSESSEE IN THE ASSESSMENT YEAR 2011 - 12. WE DIRECT THE ASSESSING OFFICER TO I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 47 CONSIDER 8% OF RS.8.68 LAKHS AS INCOME OF THE ASSESSEE AS DISCUSSED EARLIER IN PARA NO. 12.8 OF THIS ORDER FOR AYS 2009 - 10 AND 2010 - 11 . THIS GROUND OF APPEALS OF THE ASSESSES ARE PARTLY ALLOWED. IN THE RESULT, THE APPEALS OF THE ASSESSES IN ITA NO. 208 TO 213/COCH/2019 ARE PARTLY ALLOWED. ITA NOS.238/COCH/2019:REVENUE APPEAL:JOSETHOMAS:AY 2011 - 12 ITA NO. 239/COCH/2019:REVENUE APPEAL:GRACY BABU :AY 2011 - 12 1 4 . THE REVENUE HAS RAISED THE FOLLOWING COMMON GROUNDS OF APPEALS: 1 . THE LEARNED CIT(A) IN HIS ORDER DATED 31/01/2019 HAS ERRED IN CONCLUDING THAT THE PAYMENT OF RS 8 CRORES OF THE RS 16 CRORES RECEIVED BY ST THOMAS EDUCATIONAL SOCIETY IN WHICH THE ASSESSEE WAS A TRUSTEE CANNOT BE TREATED AS INCOME OF THE ASSESSEE AS NO MONEY HAD BEEN RECEIVED BY HER NOR ANY BENEFIT HAD ACCRUED TO HER. ' 2. THE ORDER OF THE LEARNED CIT(A) DATED 31/01/2019 IS CONTRADICTORY, WHEN THE CIT(A) HAS ACKNOWLEDGED THAT THE INTENTION OF THE ERSTWHILE TRUSTEES OF CARMEL EDUCATIONAL TRUST (OF WHICH, THE ASSESSEE WAS ONE) IN TRANSFERRING THE EDUCATIONAL INSTITUTION AND OTHER ASSETS OF THIS TRUST TO THE ACQUIR ERS, BELIEVERS CHURCH OF INDIA, THROUGH ITS NOMINEES, AS ESPOUSED IN THE DRAFT AGREEMENT DATED 23/02/2009 FOR A SUM OF RS 43.5 CRORES AND ONE OF THE CHANNELS OF THE PAYMENT TO THE TRUSTEES IS THROUGH MAKING CONTRIBUTION TO A TRUST WHEREIN THE ASSESSEE AND HIS FAMILY MEMBERS WERE TRUSTEES THROUGH TRUSTS IN THE CONTROL OF THE ACQUIRER, BELIEVERS CHURCH OF INDIA, UNDER THE GUISE OF INTER TRUST DONATIONS FOR RESERVING ENGINEERING SEATS IN THE ENGINEERING COLLEGE OPERATED BY THIS TRUST, WHICH HAS BEEN DISPROVED BY THE ASSESSING OFFICER. 3. THE LEARNED CIT(APPEALS) H A D ALSO ERRED IN HOLDING THAT THE PAYMENT OF RS . 8 CRORES OF THE RS 16 CRORES RECEIVED BY ST THOMAS EDUCATIONAL SOCIETY IN WHICH THE ASSESSEE AND HIS FAMILY M E MBERS WERE TRUSTEES CANNOT BE TREATED AS INCOME OF THE ASSESSEE AS NO MONEY HAD BEEN RECEIVED BY HIM NOR ANY BENEFIT HAD ACCRUED TO HIM WHEN THE LEARNED CIT(APPEALS) HAS ACKNOWLEDGED THAT THIS TRANSFER IS ALSO PART AND PARCEL OF T HE ORIGINAL TRANSACTION AS ESPOUSED IN THE DRAFT AGREEMENT DATED 23 /02/2009 AND THE ONLY REASON WHY THIS MANNER OF TRANSFER OF THE ACQUISITION COST WAS ADOPTED WAS DUE TO FACT THAT THE INTENTION OF THE ASSESSEE AND HIS FAMILY MEMBERS WERE KNOWN TO THE INCOME - I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 48 TAX DEPARTMENT BY VIRTUE OF THE RECOVERY OF THE DRAFT AGREEMENT DATED 23/02/2009 DURING THE SEARCH PROCEEDINGS AGAINST THE ASSESSEE. 4. THE LEARNED CIT(APPEALS) HAS ALSO ERRED IN HOLDING THAT SINCE THE MONEY HAD GONE TO A CHARITABLE TRUST EXEMPT U/S 12AA AND THAT THE ASSESSEE HAS DERIVED NO BENEFIT FROM THIS TRANSFER BY NOT APPRECIATING THE FACT THAT THE HOST OF AGREEMENTS ENTERED INTO BETWEEN THE ERSTWHILE TRUSTEES AND THE NOMINEES OF BELIEVERS CHURCH WERE JUST CAMOUFLAGE FOR EFFECTING THE TRANSFER OF THE SALE CONSIDERATION WITHOUT INVITING THE INCIDENCE OF TAX, PRIMA RILY BECAUSE THE INTENTION OF THE TRUSTEES WERE KNOWN TO THE INCOME TAX DEPARTMENT BY RECOVERY OF THE DRAFT AGREEMENT DATED 23/02/ 20 09 DURING THE SEARCH PROCEEDINGS. 5. THE LEARNED CIT(APPEALS) HAD RIGHTLY CONCLUDED THAT THE EXCESS CONSIDERATION RECEIVED BY THE TRUSTEES FOR THE SALE OF ADJACENT LAND VIS A VIS THAT RECEIVED BYTHE NON TRUSTEES, PAYMENT FOR CLEARIN G NONEXISTENT LIABILITIES OF THE ERSTWHILE TRUST RECEIVED BY THE ASSESSEE, CONTRACTUAL PAYMENTS FOR NONEXISTENT CONSTRUCTION ALL REPRESENTED BENEFIT S RECEIVED BY THE ASSESSEE AND HENCE ACQUIRED THE CHARACTER OF INCOME IN THE HANDS OF THE ASSESSEE. THE LEARNED CIT(APPEALS) HAD ERRED IN NOT APPRECIATING THE FACT THAT THE THIRD WAY OF PAYMENT UNDER THE GUISE OF INTER TRUST DONATIONS FROM TRUSTS UNDER THE CONTROL OF BELIEVERS CHURCH TO THE TRUST NEWLY CREATED BY THE ASSESSEE IS ALSO PART AND PARCEL OF THE ABOVE MENTIONED CONSIDERATION FOR THE BENEFIT OF THE ASSESSEE AND HENCE CANNOT BE TREATED AS SEPARATE AND DISTINCT FROM THE OTHER TRANSFERS ONLY BECAUSE IT IS DISGUISED AS AN INTER TRUST TRANSFER. 6. THE ORDER OF THE LEARNED CIT(A) DATED 31/01/2019 IS ERRONEOUS AND SO MAYBE QUASHED AND THE ORDER OF THE ASSESSI NG OFFICER DATED 30/11/2016 MAY BE UPHELD. 1 4.1 THE CRUX OF THE ABOVE GROUND IN ITA NOS. 238 & 239/COCH/2019 IS WITH REGARD TO DELETION OF ADDITION BY THE CIT(A) OF RS.8 CRORES IN EACH ASSESSMENT YEAR RECEIVED BY ST. THOMAS EDUCATIONAL SOCIETY IN WHICH THE ASSESSEES WERE TRUSTEES. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 49 1 4.2 THE FACTS OF THE CASE ARE THAT DURING THE YEAR ST. THOMAS EDUCATIONAL TRUST IN WHICH THE ASSESSEE AND GRACYBABU WERE TRUSTEES RECEIVED DONATION OF RS.16 CRORES FROM SEVEN TRUSTS FOR PROMOTING THE EDUCATIONAL OBJECTIVES OF THE TRUST. THE ASSESSING OFFICER HAD TAKEN 50% OF THIS, I.E., 8 C RORES AS INCOME OF THE ASSESSEE SINCE THE SAID AMOUNT WAS RECEIVED AS COMPENSATION FOR RELINQUISHMENT OF TRUSTEESHIP. THE AMOUNT OF RS . 8 CRORES EACH WAS ASSESSED UNDER THE HEAD OTHER SOURCE S IN THE HANDS OF ASSESSEES . ACCORDING TO THE ASSESSING OFFICER SUCH DONATION CAN BE TREATED AS CONSIDERATION RECEIVED IN LIEU OF RELINQUISHMENT OF TRUSTEESHIP OF CARMEL EDUCATION TRUST WHICH IS MANAGED BY THE BELIEVERS CHUR CH GROUP AFTER THE RELINQUISHMENT OF THE RIGHT OF SUCCESSION OF LIFELONG TRUSTEESHIP BY THE ASSE SSEES AS PER THE SUPPLEMENTARY DEED OF THE TRUST EXECUTED ON 25/03/2009. 1 4.3 ON APPEAL, THE CIT(A) HELD THAT AMOUNT OF RS.8,00,00,000/ - RECEIVED AS DONATION BY THE TRUST IN WHICH THE ASSESSEE WAS A TRUSTEE I.E. ST THOMAS EDUCATIONAL SOCIETY, CANNOT BE CONSIDERED AS INCOME IN THE HANDS OF ASSESSEE AS NO MONEY HAD BEEN R ECEIVED BY THE ASSESSEE OR ANY BENEFIT ACCRUED TO HER OUT OF THE AFORESAID DONATION. THE CIT(A) OBSERVED THAT THE GIVING OF DONATION BY THE DONOR TRUST TO THE DONEE TRUST, COULD HAVE BE EN DONE AS A PART OF THE ARRANGEMENT FOR THE VOLUNTARY AND EASY EXIT OF THE ASSESSEE FROM THE TRUSTEESHIP, BUT THE VERY FACT THAT THE MONEY HAD GONE INTO A DONEE TRUST FOR A CHARITABLE OBJECTIVE, WHICH IS IN RECEIPT OF EXEMPTION OF INCOME U/S. 12AA OF THE I.T. ACT, 1961, IS INDICATIVE OF THE FACT THAT I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 50 NO BENEFIT CAN ACCRUE TO THE ASSESSEE IN THE FUTURE WITHOUT THE RECEIPT GETTING TAXED AND THE FACT THAT NO MONEY OR BENEFIT OF ANY KIND WAS ACCRUED TO THE ASSESSEE BY VIRTUE OF THE AFORESAID DONATION, NO ADDI TION IN THE HANDS OF THE ASSESSEE WAS POSSIBLE AND IF EVER ANY BENEFIT WERE TO BE PASSED BY THE DONEE TRUST TO ITS TRUSTEE, IT WOULD BE AT THE RISK OF NOT ONLY BEING TAXED BUT ALSO LOSING ITS EXEMPTION OF INCOME STATUS. HENCE THE ADDITION OF RS.8,00,00,0 00/ - FOR THE AY 2011 - 12 WAS DELETED BY THE CIT(A). 1 4 . 4 AGAINST THIS THE REVENUE IS IN APPEAL BEFORE US. THE LD. DR RELIED ON THE ABOVE GROUNDS. 1 4.5 THE LD. AR SUBMITTED THAT R ECEIPT OF MONEY BY ST. THOMAS EDUCATION AL TRUST AS DONATION WOULD CON STITUTE INCOME IN THE HANDS OF ST. THOMAS EDUCATION AL TRUST WITHIN THE MEANING OF SECTION2(24)(IIA) OF THE ACT. SUCH DONATION WILL NOT CONSTITUTE INCOME IN THE HANDS OF TRUSTEES AND I F IT WAS TAKEN AS INCOME OF THE TRUSTEES, SUCH AN ACTION WOULD AMOUNT TO DOUBLE ASSESSMENT WHICH IS NOT CONTEMPLATED IN SCHEME OF ASSESSMENT OF INCOME UNDER THE IT ACT. THE LD. AR SUBMITTED THAT IN CASE THE DONATION RECEIVED BY ST. THOMAS EDUCATION AL TRUST IS TREATED AS CONSIDERATION RECEIVED BY THE ASSESSEE FOR RELINQUISHMENT OF THEIR TRUSTEESHIP IN CARMEL EDUCATION AL TRUST IN MARCH 2009, THE AMOUNT RECEIVED CAN ONLY BE TREATED AS CAPITAL RECEIPT WHICH IS RECEIVED OR RECEIVABLE AS ON THE DATE OF RELINQUISHMENT OF I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 51 TRUSTEESHIP. THIS IS BECAUSE THE RIGHT OF SUCCESSION OF LIFELONG TRUSTEESHIP CAN BE A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) AND ITS EXCHANGE OR RELINQUISHMENT OR EXTINGUISHMENT OF THEREIN AMOUNTS TO TRANSFER U/S 2(47) OF THE ACT AND T HE TRANSFER TOOK PLACE ON 25/03/2009. HENCE , IT WAS SUBMITTED THAT NO INCO ME, IN THIS REGARD CAN BE ASSESSED UNDER THE HEAD OTHER SOURCES OR CAPITAL GAINS FOR THE AY 2011 - 12. THE LD. AR SUBMITTEDTHAT NO BENEFIT HAD ACCRUED TO THE ASSESSEE OR RECEIVED BY THE ASSESSEE FROM THE DONATION RECEIVED BY ST THOMAS EDUCATION AL TRUST. 1 4. 6 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THIS AMOUNT OF RS.8 CRORES EACH WAS TREATED AS INCOME IN THE HANDS OF THESE TWO ASSESSES WHICH WAS PAID BY BELIEVERS CHURCH TO ST. THOMAS EDUCATION AL TRUST WHERE SHRI JOSE THOMAS AND SMT. GR ACY BABU WERE TRUSTEES. THE ASSESSING OFFICER ASSESSED THE AMOUNT OF RS.8 CRORES IN THE HANDS OF THESE TWO ASSESSES AS INCOME FROM OTHER SOURCES AS THE RECEIPT WAS IN LIEU OF RELINQUISHMENT OF TRUSTEESHIP IN CARMEL EDUCATION AL TRUST WHICH WAS MANAGED BY BELIEVERS CHURCH AFTER THE RELINQUISHMENT OF TRUSTEESHIP BY THESE TWO PARTIES. THE AMOUNT OF RS.8 CRORES WAS NOT RECEIVED BY THESE TWO ASSESSES BUT BY ST. THOMAS EDUCATION AL TRUST, HENCE, IT CANNOT BE TREATED AS INCOME OF THESE TWO ASS ESSES, AS THESE ASSESSEES ARE DIFFERENT FROM TRUST. BEING SO, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) AND THE I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 52 SAME IS CONFIRMED. THUS, THE APPEALS OF THE REVENUE IN ITA NOS. 238 & 239/COCH/2019 ARE DISMISSED. ITA NO.207/COCH/2019 :REENA JOSE: AY 2009 - 10 : (ASSESSEE APPEAL) 1 5 . T HE ASSESSEE HAS RAISED THE FOLLOWING G ROUND S OF APPEAL : 1. THE CIT(A) WENT WRONG IN UPHOLDING THE ASSESSMENT OF INCOME FROM RELINQUISHMENT OF TRUSTEESHIP OF A PUBLIC CHARITABLE TRUST AS INCOME OF THE TRUSTEES CHAR GEABLE UNDER THE HEAD INCOME FROM OTHER SOURCES BY IGNORING THE FACT THAT THE RECEIPT CONSTITUTE CAPITAL RECEIPTS. 2. THE CIT(A) WENT WRONG IN UPHOLDING THE ASSESSMENT OF INCOME FROM SALE OF AGRICULTURAL LAND OF TRUSTEES AS INCOME DERIVED BY THE TRUSTE ES FROM RELINQUISHMENT OF TRUSTEESHIP OF A PUBLIC CHARITABLE TRUST WHICH IS CHARGED UNDER THE HEAD OTHER SOURCE. 1 5 . 1 AS DISCUSSED IN ITA NO. 208 & 211/ COCH/2019 IN PARA 11.4 TO 11.8 , THIS APPEAL IS DISPOSED OFF ACCORDINGLY. THUS, THE APPEAL OF THE ASS ESSEE IN ITA NO.207/COCH/2019 IS ALLOWED. ITA NOS. 304 T0 310/COCH/2019 : CARMEL EDUCATIONAL TRUST : AY 2004 - 05 TO 2010 - 11 [ASSESSEES APPEALS] 1 6. THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT( A) - III, KOCHI DATED 25/02/2019 AND PERTAIN TO THE ASSESSMENT YEARS 2004 - 05 TO 2010 - 11. 1 6 . 1 THE ASSESSEE HAS RAISED THE FOLLOWING COMMONGROUNDS OF APPEALS: I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 53 1. THE CIT(A) ERRED IN MAKING AN ADDITION OF RS.27,84,000/ - TO THE INCOME OF THE TRUST WHIC H WAS ASSESSED ON A PROTECTIVE BASIS IN THE HANDS OF THE TRUST AND ON A SUBSTANTIVE BASIS IN THE HANDS OF THE TRUSTEES. 2. THE CIT(A) WAS WRONG IN UPHOLDING THE DENIAL OF EXEMPTION U/S. 11 OF THE ACT WHICH WAS AGAINST LAW DUE TO FOLLOWING REASONS: A) TRU ST IS NOT RESPONSIBLE FOR THE ILLEGAL COLLECTION MADE BY THE TRUSTEES WHICH WERE SHARED BY THEM AND NEVER ACCOUNTED IN THE BOOKS OF THE TRUST. THEREFORE, THE ADDITION OF SUCH INCOME IF AT ALL MADE COULD BE ONLY IN THE NAMES OF THE TRUSTEES AND NOT IN THE HANDS OF THE TRUST. B) THE ASSESSING OFFICER HAS NOT POIN TED OUT A SINGLE CASE WHERE ANY ACCOUNTED INCOME OF THE TRUST HAS BEEN MISUTILISED OR DIVERTED BY THE TRUSTEES FOR PERSONAL USE. 3. THERE WAS NO VIOLATION OF SECTION 13 OF THE I.T. ACT BY THE TRUST AND THE ASSESSING OFFICER AND C IT(A) WERE MISDIR ECTED IN CONSIDERING ITS ACTIVITY OF RUNNING AN ENGINEERING COLLEGE AS RUNNING OF A BUSINESS. 4. TRUST CLAIMED UTILIZATION AND SET OFF O F CARRY FORWARD DEFICIT FOR EARLIER YEARS BUT THE CIT(A) ERRED IN NOT CONSIDERING SUCH CLAIM, JUST FOR A REASON THAT RETURNS WERE FILED BELATEDLY WITHIN THE PRESCRIBED TIME. 1 6.2 THE FACTS OF THE CASE ARE THAT A SEARCH U/S. 132 OF THE I .T. ACT WAS CON DUCTED AT THE RESIDENCES OF SMT. GRACY BABU, SHRI JOSE THOMAS AND SHRI P.J. POULOSE, THE C HAIRPERSON, TREASUER AND SECRETARY OF THE TRUST. DURING THE COURSE OF SEARCH, DOCUMENT/ACCOUNT RELATING TO CARMEL EDUCATION TRUST WERE SEIZED. AS PER THE ACCOUNT OF TRUST RECEIVED FROM THE CARMEL EDUCATIONAL TRUST THE AMOUNT ADVANCED BY THE TRUSTEES TO THE TRUST FOR THE DIFFERENT YEARS ARE AS UNDER : I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 54 FINANCIAL YEAR SMT. GRACY BABU (RS.) SHRI JOSE THOMAS (RS.) SHRI P.J. POULOSE (RS.) SMT. LIZZY POULOSE ESTATE LOAN (RS.) 31.03.2003 17,74,097 41,04,994 95,416 5,00,000 24,76,000 31.03.2004 5,87,623 50,26,658 11,75,000 3,00,000 23,34,808 31.03.2005 6,49,235 57,61,501.50 13,16,299.74 3,00,000 14,80,756 31.03.2006 0 54,61,501.50 18,06,299.74 0 22,28,756 31.03.2007 0 46,31,488.50 16,93,799.74 0 6,78,270 31.03.2008 0 44,06,488.50 16,47,879.74 0 4,35,2 70 31.03.2009 0 41,98,118.50 12,15,851.74 0 50,730 1 6.3 THESE BOOKS OF ACCOUNTS/DOCUMENTS BELONGED TO/CONTAIN ED ACCOUNTS RELATING TO THE CARMEL EDUCATIONAL TRUST , ADOOR. THE ACCOUNTS SO FOUND/ SEIZED INDICATE D THAT THE TRUST HAD RECEIVED AMOUNTS FROM STUDENTS IN ADDITION TO THE FEE PRESCRIBED BY THE GOVERNMENT INCLUDED IN ACCOUNTS OF THE T RUST, AND EARNED INCOME W HICH WAS NOT CORRECTLY REFLECTED IN THE ACCOUNTS. THE GOVERNING BODY MEMBERS WERE ALSO WITHDRAWING THE MONEY FROM THE TRUST WITHOUT PROPER RECORDS/ACCOUNTS . HENCE , A NOTICE U/S 153C R.W.S 153A OF THE I T ACT WAS ISSUED TO THE ASSESSEE ON 31.08.2010. IN RE SPONSE TO THE ABOVE NOTICE, THE TRUST FILED ITS RETURN OF INCOME ON 15.11.2010. DURING THE RELEVANT YEARS, AS PER THE SEIZED RECORDS, THE ASSESSEE T RUST WAS IN RECEIPT OF UNDISCLOSED AMOUNTS, RECEIVED AS PART OF THE CAPITATION FEE COLLECTED BY THE TRUSTEES AND THEY HAD ALSO ADVANCED PAYMENTS TO THE TRUSTEES IN EXCESS OF THE PRESCRIBED BYLAWS. SINCE THE COMPOSITION OF THE TRUST WAS TOTALLY CHANGED POST ACTION U/S 132 AND THE CONSIDERATION INVOLVED FOR UNDERTAKING SUCH A CHANGE WAS A PART OF THE SEIZED RECORD S, BUT THE CHANGE OF GUARDS HAPPENED MUCH AFTER, THE ISSUE PERTAINING TO UNDISCLOSED COMPENSATION RECEIVED FOR RELINQUISHMENT OF TRUSTEESHIP I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 55 COULD NOT BE DETERMINED IN THE ORDERS U/S 153A OF THE IT ACT AND SUBSEQUENTLY WHEN THE COMPENSATION AMOUNT WERE NOT DISCLOSED IN THE RETURN OF INCOME OF THE TRUSTEES AND THE T RUST, THE CASES FOR THE RELEVANT YEARS WERE ASSESSED U/S 143(3) OF THE IT ACT 1961. 1 6.4 ON THE BASIS OF AN AGREEMENT DATED 10.03.2010 THE TRUSTEES OF THE CARMEL EDUCATIONAL TRUST, HANDED OVER TH E POSSESSION OF THE CARMEL ENGINEERING COLLEGE AND ALL OTHER ASSETS OF THE TRUST TO A SET OF NEW TRUSTEES WHO WERE NOMINEES OF THE BELIEVERS CHURCH. AS PER THE ABOVE AGREEMENT THE BELIEVERS CHURCH AGREED TO PAY 37.5 CRORES TO THE ERSTWHILE TRUSTEES ON HAND ING OVER OF THE ASSETS OF THE TRUST AND ON EXECUTION OF A SUPPLEMENTARY DEED OF TRUST WHEREBY ALL THE EXISTING TRUSTEES WERE SUBSTITUTED BY PERSONS WHO ARE NOMINATED BY THE BELIEVERS CHURCH (NEW TRUSTEES).AS PER THE ABOVE AGREEMENT THE AMOUNT HANDED OVER T O THE ERSTWHILE TRUSTEES WAS FOR MEETING THE LIABILITIES OF THE TRUST. OUT OF THE ABOVE 37.5 CRORES ,RS.1 CRORE EACH TOTALING TO RS. 3 CRORES WAS GIVEN TO SMT. GRACY BABU, SRI JOSE THOMAS AND SRI P J POULOSE IN MARCH 2009. THE BALANCE AMOUNT WAS AGREED TO BE PAID WITHIN 6 MONTHS ON FULFILLING THE OTHER CO NDITIONS NAMELY DISCHARGING OF A LL LIABILITIES OF THE TRUST AND CARRYING OUT OF THE REMAINING CONSTRUCTIONS OF THE ENGINEERING COLLEGE. IT WAS NOTICED THAT NO FURTHER CONSTRUCTION WORK HAD BEEN CARRIED OUT BY THE ERSTWHILE TRUSTEES TO THE COLLEGE BUILDING. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 56 16 .5 BY THE SUBSTITUTION OF THE ERSTWHILE TRUSTEES BY THE NEW TRUSTEES AND THE HANDING OVER AND TAKING OVER OF THE ASSETS OF THE COLLEGE AND THE TRUST, THE ERSTWHILE TRUSTEES HAD IN FACT, SOLD THE ASSETS OF THE TRUST TO NEW TRUSTEES FOR A CONSIDERATION OF RS. 3 7.5 CRORES AS PER EXECUTED AGREEMENT, BUT WAS MUCH MORE(43.5 CRORES) AS PER THE SEIZED RECORDS. A T THE SAME TIME, WHEN THE COMPOSITION OF THE T RUST WAS BEING CHANGED, THE TRUSTEES DECIDED TO SELL AN ADJACENT PIECE OF LAND TO BELIEVERS CHURCH AND ITS ASSOC IATED CHURCHES. A PART OF THE COMPENSATION FOR RELINQUISHMENT OF TRUSTEESHIP WAS SOUGHT TO BE PASSED ON TO THE TRUSTEES BY INCREASING THE SALE CONSIDERATION, WHICH WOULD OTHERWISE HAVE BEEN RECEIVED BY THEM AS THE FAIR MARKET VALUE. THIS WAS MORE SO SINCE THE LAND IN QUESTION WAS AN AGRICULTURAL LAND AND HENCE ITS SALE WAS NOT CHARGEABLE TO CAPITAL GAINS. THE ORIGINAL AGREED SALE CONSIDERATION FOR THE TOTAL PLOT OF LAND WAS INCREASE FROM RS.6.5 CRORE TO 12.5 CRORES. THOSE LAND OWNERS WHO OWNED A PART OF THE PLOT OF LAND IN QUESTION BUT WERE NON TRUSTEES RECEIVED MUCH LESSER AMOUNT. SINCE LEGALLY THE TRUSTEES COULD NOT SELL THE TRUST, THE OLD TRUSTEES SURRENDERED THEIR TRUSTEESHIP IN FAVOUR OF THE NEW TRUSTEES AND RECEIVED THE SALE/ COMPENSATION CONSIDERATION BY CAMOUFLAGING THE CONSIDERATION RECEIVED BY: - A. CLAIMING IT AS THE SALE CONSIDERATION FOR LAND OWNED BY THE TRUSTEES IN THEIR PERSONAL CAPACITY AND OF A VALUE MUCH HIGHER THAN THE FAIR MARKET VALUE. B. CLAIMING IT FOR NON EXISTENT CONSTRUCTION WORK DO NE BY THEM C . DONATION TO THEIR NEW TRUSTS FORMED BY THEM I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 57 1 6.6 THE DETAILS OF INCOME AND THE EXEMPTION CLAIMED ON ACCOUNTS OF EXPENSES ON CHARITABLE PURPOSES AS PER RETURNS FILED U/S 139 AND U/S 153C ARE GIVEN BELOW: AS PER RETURNS FILED U/S 153C INCOME AS PER INCOME & EXPENDITURE STATEMENT ADDITION OF FIXED ASSETS DURING THE YEAR CLAIMED AS UTILIZED FOR CHARITABLE PURPOSES 2003 - 04 15,51,297 ( - ) 4,21,36,687 2004 - 05 10,50,980 ( - ) 1,44,25,959 2005 - 06 41,82,731 1,36,73,316 2006 - 07 64,91,222 1,42,03,803 2007 - 08 2,40,34,444 1,90,76,299 2008 - 09 2,99,17,018 2,59,85,137 2009 - 10 2,64,46,323 1,39,37,615 AS PER ORIGINAL RETURNS FILED U/S 139 INCOME AS PER INCOME & EXPENDITURE STATEMENT AMOUNT CLAIMED AS UTILIZED FOR CHARITABLE PURPOSES 2003 - 04 2,41,97,800 2,41,97,800 2004 - 05 1,91,27,477 1,87,73,094 2005 - 06 2,57,11,373 2,57,11,373 2006 - 07 64,91,220 1,52,03,803 I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 58 2007 - 08 5,87,81,220 5,87,81,220 2008 - 09 6,88,77,429 6,88,77,429 2009 - 10 8,25,96,750 1,39,37,635 THE ASSESSMENT IN THE CASE OF THE ASSESSEE T RUST WAS COMPLETE D U/S 143(3 ) R . W . S . 153C OF THE IT ACT, 1961, ON 31.12.2010 FOR AY 2003 - 04 TO 2009 - 10. 16. 7 THE ASSESSING OFFICER FOUND THAT A S PER THE ACCOUNTS OF THE TRUST FOUND AND SEIZED FROM THE RESIDENTIAL PREMISES OF SRI PJ POULOSE, SMT GRACY BABU AND SRI JOSE THOMAS , THEY, AS GOVERNING BODY MEMBERS, HAD RECEIVED DONATIONS FROM STUDENTS FOR GIVING ADMISSION TO THE MANAGEMENT QUOTA SEATS. THEY WERE ALSO DRAWING ALLOWANCES FROM THE TRUST. FURTHER THEY WERE FREQUENTLY DRAWING MONEY FROM THE TRUST AND PARTLY RETURNING IT AS IF IN A PROPRIETARY BUSINESS. BUT THESE TRANSACTIONS ARE NOT INCLUDED IN THE ACCOUNTS OF THE TRUST WHICH HAVE BEEN FILED IN THE IN COME TAX OFFICE. S H RI PJ POULOSE, IN HIS STATEMENT DATED 26.02.2009 GIVEN BEFORE THE AUTHORIZED OFFICER HAS STATED THAT THE GOVERNING BODY MEMBERS WERE COLLECTING APPROXIMATELY RS.40,000 FROM EACH STUDENTS ADMITTED TO THE MANAGEMENT QUOTA SEATS AND THAT TH E SAME HAS BEEN APPROPRIATED BY THE GOVERNING BODY MEMBERS BY SHARING IT. DURING THE EARLY YEARS, PART OF THE ABOVE DONATION WAS PAID TO THE TRUST FOR EXPENSES/INVESTMENT. S H RI JOSE THOMAS IN HIS STATEMENT DATED 19.03.2009 GIVEN BEFORE THE DEPUTY DIRECTOR OF IT INV - LL , ERNAKUALM U/S 131 OF THE IT ACT HAD IN I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 59 ANSWER TO QUESTION NO.21 STATED THAT THE ENTRIES IN JTP - 4 RELATE TO THE ADVANCE FEES (DONATION) RECEIVED FROM STUDENTS ADMITTED TO THE MANAGEMENT QUOTA SEATS. HE HAD ADMITTED THAT FOR THE YEAR 2008 - 09 THE ADVANCE FEES COLLECTED WAS RS.2,11,93,500/ - WHICH WAS DIVIDED BETWEEN HIMSELF AND SMT. GRACY BABU EQUALLY. IT WAS ADMITTED THAT THIS AMOUNT WAS NOT REFLECTED IN THE COLLEGE ACCOUNTS. IN ANSWER TO QUESTION NO.25 HE HAD STATED AS UNDER : ' I DECLARE THAT I HA VE RECEIVED RS.1,01,88,875/ - AS MY SHARE DURING FY 2008 - 09. THIS COMPRISE S 'ADVANCE FEES' RECEIVED FROM STUDENTS WHO SECURED ADMISSION TO MANAGEMENT QUOTA SEATS. A PORTION OF THIS IS REMITTED TO COLLEGE. AGAINST THE RECEIPT MENTIONED ABOVE, I CONSIDER RS.60,00,000/ - WILL BE INCOME TO THE BEST OF MY KNOWLEDGE AND BELIEF. THIS IS HOWEVER SUBJECT TO DETAIL VERIFICATION TO ARRIVE AT THE ACTUAL FIGURE. I AM WILLING TO PAY TAX ON THIS DECLARED INCOME. I REQUEST THAT I MAY BE GRANTED IMMUNITY FROM THE PENAL CO NSEQUENCES', SMT. GRACY BABU IN HER STATEMENT GIVEN BEFORE THE DY. DIRECTOR OF INCOME TAX ON 30.03.2009 IN ANSWER TO QUESTION NO. 10 HAD ADMITTED THAT AMOUNT IN EXCESS OF THE FEES PRESCRIBED BY THE GOVT. WER E COLLECTED FROM MANAGEMENT QUOTA STUDENTS AND T HAT THE AMOUNT SO COLLECTED WAS NOT REFLECTED IN THE ACCOUNTS OF THE COLLEGE. ACCORDING TO HER THE ADMISSION FOR THE YEAR 2008 - 09 WAS MANAGED BY S H RI JOSE THOMAS AND THE AMOUNT COLLECTED ON HER BEHALF IS KEPT BY S H RI JOSE THOMAS. OUT OF THE AMOUNT SO COLLE CTED RS.40 LAKHS HAS BEEN INVESTED IN ST. THOMAS EDUCATIONAL SOCIETY. AS PER HER STATEMENT ADMISSION DURING THE YEAR 2007 - 08 WAS DONE BY S H RI JOSE THOMAS HIMSELF AND ITS ACCOUNTS ARE AVAILABLE WITH HIM ONLY. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 60 16. 8 THE SEIZED MATERIAL PJP - 5, KRS - 2, CONTAIN ED THE DETAILS OF DONATIONS RECEIVED FROM STUDENTS, THE AMOUNT GIVEN BY THE GOVERNING BODY MEMBERS TO THE TRUST AND THE AMOUNT APPROPRIATED BY THEM. IT WAS NOTICED FROM THE ACCOUNT OF THE TRUST THAT NO AMOUNT OF DONATION RECEIVED FROM STUDENTS WAS ACCOUNTED IN ITS ACCOUNTS . DETAILS OF THE DONATIONS RECEIVED BY THE GOVERNING BODY MEMBERS ARE AS UNDER: ASSE S SMENT YEAR DONATIONS FROM STUDENTS COLLECTED DONATIONS HANDED OVER TO THE TRUST. DONATIONS ACCOUNTED BY THE TRUST. DONATIONS SHARED BY TRUSTEES AS PER SEIZED MATERIAL. PERCENTAGE OF DONATION SHARED BY THE TRUSTEES. 2003 - 04 NIL NIL NIL NIL NIL 2004 - 05 RS. 47,31,000 - COMMISSION RS. 25000 RS. 47,06,000/ - RS. 27,84,000/ - RS.19,04,000/ - 33.33% 2005 - 06 RS.31, 67,000/ - RS.20,63,000/ - NIL RS. 11,04,000/ - 33.33% 2006 - 07 RS. 15,07,300/ - RS. 7,57,300/ - NIL RS. 7,50,000/ - 33.33% 2007 - 08 RS. 76,92,450/ - RS.67,94,950/ - NIL RS. 8,97,500/ - PJ POULOSE RS.7,27,500/ - JOSE THOMAS RS. 1,70,000 / - GRACY BABU RS. 0 2007 - 08 LAPSED SEAT RS. 17,94,750/ - NIL NIL RS. 17,94,750/ - PJ POULOSE RS.6,39,000/ - JOSE THOMAS RS.11,55,750 / - 2008 - 09 NO ACCOUNTS SEEN 2009 - 10 RS.1,93,55,000 NIL NIL RS.1,93,55,000 GRACY BABU I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 61 16. 9 THE ASSESSING OFFICER NOTICED THAT O UT OF THE TOTAL SEATS FOR ADMISSIONS TO THE COURSES IN THE CARMEL ENGINEERING COLLEGE, 50% ARE FILLED UP BY THE GOVERNMENT AND THE BALANCE 50% IS FILLED UP BY THE MANAGEMENT. THE FEES THAT CAN BE COLLECTED FROM STUDENTS ADMITTED IN THE MANAGEMENT QUOTA ARE FIXED BY THE GOVERNMENT, BUT THE GOVERNING BODY MEMBERS OF THE TRUST COMPRISING OF THE CHAIRMAN, THE SECRETARY AND THE TREASURER USED TO GET AMOUNT IN EXCESS OF PRESCRIBED FEES FOR GI VING ADMISSIONS TO THE MANAGEM ENT QUOTA SEATS. THE AMOUNTS SO COLLECTED FROM STUDENTS IN THE MANAGEMENT QUOTA IS NOT ACCOUNTED IN THE ACCOUNTS OF THE COLLEGE AND THE TRUST. IT IS SHARED AMONG THE GOVERNING BODY MEMBERS AND UTILIZED BY THEM. DURING THE YEAR 2006 - 07, THE ASSESSING OFFICER NOTICED THAT M/S CARMEL EDUCATIONAL TRUST HAD COLLECTED RS. 94,87,2 00/ - FROM STUDENTS AS DONATION FOR ADMISSION TO THE ENGINEERING COLLEGE AS EVIDENCED BY THE ACCOUNTS RELATING TO ADMISSION SEIZED AS ITEM NO. KRS - 2, FROM THE RESIDENCE OF SMT GRACY BABU. THE TOTAL DONATION RECEIVED FOR THE YEAR 2008 - 09 WAS RS.3,97 , 32,7 50 / - . SINCE NO ACCOUNT WA S MAINTAINED FOR THIS YEAR, AN AMOUNT OF RS.21193500/ - (AVERAGE OF RS.2,11,93,500 NIL NIL RS.2,11,93,500 50% JOSE THOMAS 50% I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 62 RS.9487200 AND RS.39732750/ - ) WAS CONSIDERED AS THE DONATION RECEIVED FOR THE YEAR 2007 - 08. 16. 9.1 AS PER THE ABOVE ACCOUNTS, THE ALLOWANCE DUE TO THE GOVERNING BODY MEMBERS ARE AS UNDER. THEY HAVE DRAWN THE AMOUNTS ON DIFFERENT DATES: - ASSESSMENT YEAR ALLOWANCE DUE TO GOVERNING BODY MEMBERS AS PER THE ACCOUNT GRACY BABU RS. JOSE THOMAS RS PJ POULOSE RS 2003 - 04 75000 .75000 225000 2004 - 05 300000 300000 300000 2005 - 06 300000 300000 300000 2006 - 07 475000 475000 475000 2007 - 08 600000 600000 600000 2008 - 09 600000 600000 600000 2009 - 10 300000 300000 300000 16. 9.2 THE DETAILS OF INCOME AND THE EXEMPTION CLAIMED ON ACCOUNT OF EXPENSES ON CHARITABLE PURPOSE AS PER RETURNS FILED U/S 139 AND U/S 153C ARE GIVEN BELOW: AS PER RETURNS FILED U/S 153C INCOME AS PER INCOME & EXPENDITURE STATEMENT ADDITION AFFIXED ASSETS DURING THE YEAR CLAIMED AS UTILIZED FOR CHARITABLE PURPOSES 2003 - 04 15,51,297 ( - ) 4,21,36,687 2004 - 05 10,50,980 ( - ) 1,44,25,959 2005 - 06 41,82,731 1,36,73,316 I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 63 2006 - 07 64,91,222 1,42,03,803 2007 - 08 2,40,34,444 1,90,76,299 2008 - 09 2,99,17,018 2,59,85,137 2009 - 10 ' 2,64,46,323 1,39,37,615 AS PER ORIGINAL RETURNS FILED U/S 239 INCOME AS PER INCOME & EXPENDITURE STATEMENT AMOUNT CLAIMED AS UTILIZED FOR CHARITABLE PURPOSES 2003 - 04 2,41,97,800 2,41,97,800 2004 - 05 1,91,27,477 1,87,73,094 2005 - 06 2,57,11,373 2,57,11,373 2006 - 07 64,91,220 1,52,03,803 2007 - 08 5,87,81,220 5,87,81,220 2008 - 09 6,88,77,429 6,88,77,429 2009 - 20 8,25,96,750 1,39,37,635 16. 9.3 FROM THE ABOVE FACTS , THE ASSESSING OFFICER FOUND THAT THE ADMINISTRATION AND MANAGEMENT OF THE TRUST AND ITS COLLEGE AND FINANCIAL MANAGEMENT WERE NOT CARRIED OUT AS EXPECTED OF A TRUST THE FINANCIAL TRANSACTIONS WERE CARRIED OUT AS IF THE GOVERNING BODY MEMBERS WERE EAR N ING ON THEIR OWN PERSONAL BUSINESS AND T H E AMOUNTS COLLECTED FROM STUDENTS AS DONATION WAS KEPT SEPARATELY IN A PARALLEL SECRET ACCOUNT WITHOUT DISCLOSING IT IN THE REGULAR ACCOUNTS OF THE COLLEGE/ TRUST. THEY WERE DRAWING ALLOWANCES WITHOUT FULLY ACCOUNTING IN THE TRUST. ALSO MONEY WAS I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 64 TAKEN OUT WITHOUT PROPER ACCOUNTING. THE TRUSTEES WERE USING THE TRUST FOR THEIR PERSONA L PROFIT AND NOT FOR THE CHARITABLE OBJECTIVES OF THE TRUST. IN THESE CIRCUMSTANCE , THE ASSESSING OFFICER HELD THAT THE TRUST CANNOT BE CONSIDERED AS A CHARITABLE ONE. AS THE FU NDS OF THE TRUST HAVE BEEN MISUTILIZED BY THE TRUSTEES AND THEY WERE MAKING PROFIT OUT OF THE ACTIVITIES OF THE TRUST, THE TRUST CANNOT BE GIVEN EXEMPTION U/S 11 AS PER PROVISIONS OF SECTION 13(I)C(II) OF THE IT ACT, 1961. THUS, I T WAS ASSESSED AS ON AOP DOING BUSINESS IN RUNNING OF THE COLLEGE AND THE TRUSTEES WERE DOING BUSINESS IN THE GUISE OF CHARITY. GROUND NO. 1 : DENIAL OF EXEMPTION U/S. 11: A.YS 2004 - 05 TO 2010 - 11 1 7 . T HE CIT(A) OBSERVED THAT THE ASSESSING OFFICER WAS CORRECT IN HOLDING THAT I T WAS EVIDENT THAT THE ADMINISTRATION AND MANAGEMENT OF THE TRUST AND ITS COLLEGE AND FINANCIAL MANAGEMENT WERE NOT CARRIED OUT AS EXPECTED OF A TRUST. THE FINANCIAL TRANSACTIONS WERE CARRIED OUT AS IF THE GOVERNING BODY MEMBERS WERE CARRYING ON THEIR OWN PERSONAL BUSINESS. THE AMOUNT COLLECTED FROM STUDENTS AS DONATION WAS KEPT SEPARATELY IN A PARALLEL SECRET ACCOUNT WITHOUT DISCLOSING IT IN THE REGULAR ACCOUNTS OF THE COLLEGE/TRUST. ACCORDING TO THE CIT(A), THEY WERE DRAWING ALLOWANCES WITHOUT FULLY ACCO UNTING IN THE TRUST AND ALSO MONEY WAS TAKEN OUT WITHOUT PROPER ACCOUNTING. THE TRUSTEES WERE USING THE TRUST FOR THEIR PERSONAL PROFIT AND NOT FOR THE CHARITABLE OBJECTIVES OF THE TRUST. IN THESE CIRCUMSTANCES, IT WAS OBSERVED THAT THE TRUST CANNOT BE CON SIDERED AS A 'CHARITABLE ONE'. AS THE I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 65 FUNDS OF THE TRUST HAD BEEN MISUTILIZED BY THE TRUSTEES AND THEY WERE MAKING PROFIT OUT OF THE ACTIVITIES OF THE TRUST, THE CIT(A) HELD THAT TRUST CANNOT BE GIVEN EXEMPTION U/S 11 AS PER THE PROVISIONS OF SECTION 13( 1 ) ( C ) (II) OF THE IT ACT, 1961, AND HENCE, THE CIT(A) CONFIRMED THE FINDING OF THE AO THAT THE ACTIVITY OF THE TRUST WAS BEING CARRIED OUT IN CONTRAVENTION TO THE PROVISIONS OF SECTION 11 & 12 OF THE IT ACT, 1961. HENCE, THE CIT(A) HELD THAT IT IS TO BE ASSES SED AS AN AOP DOING BUSINESS IN RUNNING OF THE COLLEGE, AND THE TRUST WAS DOING BUSINESS IN THE GUISE OF CHARITY. 1 7 .1 AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR SUBMITTED THAT NO S EARCH WAS CONDUCTED IN THE PREMISES OF ASSESSEE T RUST. BASED ON MATERIALS FOUND IN THE SEARCH ON ERSTWHILE TRUSTEES, ASSESSMENT U/S. 1 43 ( 3) R.W.S. 1 53C MADE IN THE HANDS OF TRUST FOR A.YS.2004 - 05 TO 2008 - 09 AND U/S. 143(3) FOR A.YS.2009 - 10 AND 2010 - 11. T HE LD. AR SUBMITTED THAT ASSESSING OFFICER HA D DENIED EXEMPTION U/S. 11 FOR VIOLATION OF SECTION 13( 1 )(C) FOR THE REASON THAT UNACCOUNTED DONATIONS FROM STUDENTS WERE COLLECTED BY ERSTWHILE TRUSTEES AND FURTHER ERSTWHILE TRUSTEES WERE DRAWING ALLOWANCES WITHOUT FULLY ACCOUNTING IN THE TRUST , THEREBY AS SESSING TRUST AS AOP AND PROTECTIVELY ADDED ENTIRE DONATIONS COLLECTED BY ERSTWHILE TRUSTEES IN THE HANDS OF TRUST. IT WAS SUBMITTED THAT L OOSE PAPERS AND COMPUTERS PRINTS DO NOT HAVE EVIDENTIARY VALUE AND ASSESSMENT MADE SOLELY BASED ON SAME IS NOT VALID . RELIANCE WAS PLACED ON COMMON CAUSE V UOI [2017] 77 TAXMANN.COM I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 66 245 (SC). IT WAS SUBMITTED THAT ILLEGAL DONATIONS WERE SUBMITTED BY THE ERSTWHILE TRUSTEES AND NOT THE TRUST. THEREFORE , THERE WAS NO VIOLATION OF SECTION 13(L)(C). IT WAS SUBMITTED THAT TH E INCRIMINATING MATERIALS WHICH WERE FOUND IN THE RESIDENCE OF 3 ERSTWHILE TRUSTEES AND THE WHOLE OF DONATIONS HA D BEEN ASSESSED SUBSTANTIVELY IN THE HANDS OF 3 ERSTWHILE TRUSTEES PROVED T HAT THE TRUST INCLUDING OTHER ERSTWHILE TRUSTEES WERE NOT PARTY TO S UCH COLLECTIONS BY THE 3 ERSTWHILE TRUSTEES. HENCE, PROTEC TIVE ASSESSMENT OF DONATIONS COLLECTED BY ERSTWHILE TRUSTEES IN THE HANDS OF TRUST WAS NOT VALID. 1 7 . 2 THE LD. AR SUBMITTED THAT NO DISCREPANCIES WERE FOUND IN THE ALLOWANCES TO ERSTWHILE TRU STEES ACCOUNTED IN THE BOOKS OF THE ASSESSEE AND THE TRUST WAS NOT RESPONSIBLE FOR THE DONATIONS OR THE AMOUNT OF ALLOWANCES SHARED BY THE 3 ERSTWHILE TRUSTEES FROM SUCH DONATIONS. IT WAS SUBMITTED THAT THE ACT OF THE ERSTWHILE TRUSTEES COLLECTING CAPITAT ION FEES WAS ILLEGAL AND THE TRUST CANNOT BE FASTENED WITH THE LIABILITIES FOR THE ILLEGAL DEEDS OF THREE AMONG ELEVEN ERSTWHILE TRUSTEES. THE ILLEGALITY IS MANIFEST FROM THE FOLLOWING : I. SECTION 6( 1) OF THE KERALA SELF FINANCING PROFESSIONAL COLLEGES (PR OHIBITION OF CAPITATION FEES AND PROCEDURE FOR ADMISSION AND FIXATION OF FEES) ACT , 2004 PROHIBITS COLLECTION OF CAPITATION FEES FROM ANY CANDIDATE OR STUDENT. SECTION 6( 1) OF THE ACT IS STATED BELOW I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 67 'COLLECTION OF CAPITATION FEE PROHIBITED. (1) NO CAPITATION FEE SHALL BE COLLECTED BY OR ON BEHALF OF ANY SELF - FINANCING, PROFESSIONAL COLLEGE OR BY ANY PERSON WHO IS IN CHARGE OF OR IS RESPONSIBLE FOR THE MANAGEMENT OF SUCH COLLEGE FROM OR IN RELATION TO AN Y CANDIDATE/STUDENT IN CONSIDERATION OF HIS ADMISSION TO, OR PROSECUTION OF ANY COURSE OF STUDY, OR HISPROMOTION TO A HIGHER CLASS IN SUCH COLLEGE OR AN INSTITUTION UNDER SUCH MANAGEMENT . 1 7 . 3 THE LD. AR RELIED ON THE JUDGMENT OF THE APEX C OURT IN T HE CASE OF MISS MOHINI JAIN VS STATE OF KARNATAKA AND ORS ( 1992 AIR 1858) WHEREIN IT WAS HELD THAT '... ...CAPITATION FEE IN CONSIDERATION OF ADMISSIONS TO EDUCATIONAL INSTITUTIONS IS WHOLLY ARBITRARY' AND AS SUCH INFRACTS ARTICLE 14 OF THE CONSTITUTION........... WE, THEREFORE, HOLD AND DECLARE THAT CHARGING OF CAPITATION FEE BY THE PRIVATE EDUCATIONAL INSTITUTIONS AS A CONSIDERATION FOR ADMISSION IS WHOLLY ILLEGAL AND CANNOT BE PERMITTED...... ' . THE LD. AR SUBMITTED THAT TRUSTEESHIP BEIN G FIDUCIARY IN NATURE, IT CALLS FOR DUE CARE. , ES PECIALLY SO, IN A PUBLIC TRUST. IT WAS SUBMITTED THAT THE ERSTWHILE TRUSTEES HAD INVOLVED IN ILLEGAL ACTIVITIES FOR THEIR OWN PROFITS. SECTION 51 OF THE INDIAN T RUSTS ACT, 1882 CLEARLY STATE D THAT 'A TRUSTEE MAY NOT USE OR DEAL WITH THE TRUST - PROPERTY FOR HIS OWN PROFIT OR FOR ANY OTHER PURPOSE UNCONNECTED WITH THE TRUST '. CAPITATION FEES COLLECTED, IF ANY, BY FEW OF THE ERSTWHILE TRUSTEES FROM THE CANDIDATES/STUDENTS WERE ILLEGAL AND THIS HAS NOTHING TO DO W ITH THE TRUST WHICH HA D ONLY LAWFUL OBJECTS. SUCH ILLEGAL COLLECTION DONE BY FEW OF THE TRUSTEES WERE NEITHER INCOME OF THE TRUST NOR PART OF ITS RECEIPTS. TRUST I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 68 CANNOT BE PENALIZED FOR THE ILLEGAL ACTIVITIES PERFORMED BY THE THREE AMONG THE ELEVEN ERSTWHI LE TRUSTEES. 1 7 . 4 THE LD. AR RELIED ON THE JUDGMENT OF THE KERALA H IGH C OURT IN THE CASE OF PRATHEESH V V STATE OF KERALA (CASE NO. WP(C) NO. 33278 OF 2016 & W.A. NOS. 71 & 72 OF 2017 DATED 24 JANUARY 2017 THAT ' IT IS THE SETTLED POSITION OF LAW THAT A REGISTERED TRUST IS A LEGAL ENTITY AND JURISTIC PERSON ENTITLED TO HOLD PROPERTY BY ITSELF . IT WAS SUBMITTED THAT S IMILAR TO THE TRUST MENTIONED IN THE ABOVECITED CASE, THE ASSESSEE IS ALSO A TRUST WHICH WAS GIVEN AFFILIATION TO RUN AN EDUCATIONAL INSTITU TION AND THEREFORE , HAS TO BE DEEMED AS A LEGAL ENTITY DIFFERENT FROM ITS TRUSTEES. IT WAS SUBMITTED THAT T HE TRUST WAS RUNNING AN ENGINEERING COLLEGE WHICH WAS AFFILIATED TO ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (A STATUTORY BODY OF THE GOVERNMENT OF INDIA) AND HENCE , IT HA D ITS OWN SEPARATE LEGAL EXISTENCE. THUS, IT WAS SUBMITTED THAT THE TRUST SHOULD NOT BE PUT ON PERIL FOR THE ILLEGAL ACTIVITIES COMMITTED BY FEW OF THE TRUSTEES OF THE TRUST RUNNING AN AFFILIATED COLLEGE. 1 7 . 5 THE LD. AR SUBMITTED THAT SECTION 13(1) (C) HA D NO APPLICABILITY HERE. THE LD. AR REPRODUCED THE SAID SUBSECTION AS BELOW: 'SECTION 13(1) NOTHING CONTAINED IN SECTION II OR SECTION 12 SHALL OPERATE SO AS TO EXCLUDE FROM THE TOTAL INCOME OF THE PREVIOUS YEAR O F THE PERSON IN RECEIPT THEREOF (A): ... ... ... ... (B): ... ... ... ... I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 69 (C): IN THE CASE OF A TRUST FOR CHARITABLE OR RELIGIOUS PURPOSES OR A CHARITABLE OR RELIGIOUS INSTITUTION, ANY INCOME THEREOF (I) ... ... ... (II) IF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR THE INSTITUTION (WHENEVER CREATED OR ESTABLISHED) IS DURING THE PREVIOUS Y EAR USED OR APPLIED, DIRECTL Y OR INDIRECTLY FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB - SECTION (3) ' ACCORDING TO THE LD. AR, TH IS SECTION RESTRICT ED EXCLUSION OF CERTAIN INCOME FROM TOTAL INCOME, TO THE EXTENT SUCH INCOME HA D BEEN APPLIED DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF THE TRUSTEES. HERE, THE LD. AR SUBMITTED THAT NO INCOME HA D BEEN RECEIVED BY THE TRUST AS CAPITATION FEES AND THERE WAS NO CLAIM FOR EXCLUSION OF ANY NON - EXISTENT INCOME UNDER SECTION 11 OR SECTION 12 AND HENCE SECTION 13(1) HAS NO APPLICABILITY HERE. CAPITATION FEES, IF ANY, WERE COLLECTED BY THE ERSTWHILE TRUSTE ES AND WAS NEVER A PART OF THE INCOME OF THE TRUST. 1 7 . 6 THE LD. AR SUBMITTED THAT NO SEIZED MATERIAL WAS FOUND FOR A.Y.2008 - 09. HOWEVER , IT WAS SUBMITTED THAT THE AO HAD TAKEN AVERAGE OF PRECEDING AND SUBSEQUENT YEARS' DONATION TO ARRIVE AT AMOUNT COL LECTED BY THE ERSTWHILE TRUSTEES. WHERE NO SEIZED MATERIAL IS AVAILABLE NO ADDITION CAN BE MADE. IT WAS SUBMITTED THAT THE CONSOLIDATION OF SEIZED MATERIALS REFLECTED SOME AMOUNTS AS D ONATIONS COLLECTED BY TRUSTEES AND HANDED OVER TO THE TRUST IN A.YS.2004 - 05 TO 2007 - 08. IT WAS SUBMITTED THAT IF AT ALL, ONLY THIS AMOUNT CAN BE CONSIDERED IN THE HANDS OF TRUST THIS, HOWEVER , WOULD STILL NOT RESULT IN DENIAL OF EXEMPTION U/S. 11 OF THE ACT. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 70 17.6.1 THE LD. AR RELIED ON THE FOLLOWING CASE LAWS: 1. COMMON CA USE VS. UOI (2017) 77 TAXMANN.COM 245 (SC) 2. BADRIDASDAGA VS. CIT (1958) 34 ITR 10 (SC) 3. CIT VS. RAJASTHAN AND GUJARATI CHARITABLE FOUNDATION POONA (2018) 402 ITR 441(SC) 4. CIT VS. SARDARILAL& CO. (2001) 251 ITR 864 (DEL) (FB) 5. SANJAY RUNGTA VS. OFFICE OF THE CIT (2014) 266 CTR 181 (JHAR) 6. M.M. FINANCIERS (P) LTD. VS. DCIT (2007) 107 TTJ 200 (CHENNAI) 7. ITO VS. RAJKUMAR B IRLA IN ITA NO.943 TO 945/HYD/2012 HYDERABAD TRIBUNALR 1 7 .7 THE LD. DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 1 7 .8 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IN THIS CASE, EXEMPTION U/S. 11 OF THE I.T. ACT WAS DENIED ON THE REASON THAT THE TRUSTEE S COLLECTED THE EXCESS FEES FROM THE STUDENTS AND THEY THEMSELVES WERE MANAGING THE F INANCIAL AFFAIRS OF THE ASSESSEE - TRUST AS THEIR OWN PERSONAL BUSINESS. HENCE, THE AMOUNTS COLLECTED FROM THE STUDENTS WERE KEPT BY THEMSELVES WITHOUT DISCLOSING IN THE BOOKS OF ACCOUNTS OF THE TRUST. THEY WERE DRAWING ALLOWANCES WITHOUT ACCOUNTING THE SA ME IN THE BOOKS OF ACCOUNTS OF THE TRUST. THE Y USED THE TRUST FOR THEIR PERSONAL BENEFIT AND NOT FOR THE OBJECTIVES OF THE TRUST. HENCE, EXEMPTION U/S. 11 OF THE I.T. ACT WAS DENIED BY INVOKING THE PROVISIONS OF SECTION 13(1)(C)(II) OF THE ACT AND THE IN COME OF THE ASSESSEE - TRUST WAS ASSESSED AS AOP. HOWEVER, IN TH IS CASE, THERE WAS NO ALLEGATION THAT THE TRUST WAS NOT ESTABLISHED FOR IMPARTING EDUCATION. T HE RECORDS SHOW THAT THE TRUST HAS ESTABLISHED EDUCATIONAL INSTITUTIONS I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 71 AND CONDUCTED ENGINEERING A ND MANAGEMENT COURSES . HUGE INVESTMENTS WERE MADE FOR CONSTRUCTION OF BUILDING FOR HOUSING THE COLLEGE AND TO PROVIDE OTHER FACILITIES TO THE STUDENTS WHO WERE ST UDY ING IN THE COLLEGE. THE COLLEGE IS RECOGNIZED B Y COMPETENT AUTHORITY. THEREFORE, IT CANNOT BE SAID THAT THE TRUST IS NOT GENUINE. ADMITTEDLY, THE STUDENTS ARE BEING ADMITTED EVERY YEAR AND THE STUDENTS ARE ST UDYING IN THE TRUST - OWNED COLLEGE. THUS, THE OBJECT OF ESTABLISHMENT OF THE TRUST IS FOR IMPARTING EDUCA TION WHICH IS GOING ON UNINTERRUPTEDLY. THEREFORE, IT CANNOT BE SAID THAT THE ACTIVITIES OF THE TRUST ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTIVES OF THE TRUST. WHEN THESE CONDITIONS ARE FULLY SATISFIED, IT CANNOT BE SAID THAT THE TRUST IS MISAPPROPRIATING FUNDS OF THE TRUST AND HENCE EXEMPTION U/S. 11 OF THE ACT CANNOT BE DENIED. IN THE PRESENT CASE, THE TRUSTEES ADMITTED THAT THEY HAVE COLLECTED EXCESS FEES IN THEIR PERSONAL CAPACITY AND PAID A PORTION OF IT TO THE TRUST. HOWEVER, THE DEP ARTMENT HAS NOT FOUND ANY INCRIMINATING MATERIAL IN THE CASE OF THE TRUST. THE ACCOUNTS OF THE ASSESSEE - TRUST SHOWS THAT THE ASSESSEE CARRIED ON EDUCATIONAL ACTIVITIES BY RUNNING VARIOUS INSTITUTIONS WITHIN THE DOMAIN OF CENTRAL AND STATE LAWS. THE ASSESS EE - TRUST HAS BEEN MAINTAINING REGULAR BOOKS OF ACCOUNTS AND THEY WERE AUDITED UNDER THE RELEVANT PROVISIONS OF THE ACT. THE LOWER AUTHORITIES HAVE NOT FOUND ANY ERROR IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE - TRUST. THE ONLY ALLEGATION IS THAT A PORTION O F THE EXTRA FEES COLLECTED BY THE TRUSTEES HAS BEEN HANDED OVER TO THE ASSESSEE - TRUST WHICH IS UN ACCOUNTED FOR. SINCE THERE WERE NO DEFECTS FOUND IN THE BOOKS OF I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 72 ACCOUNTS OF THE ASSESSEE AND ALSO THE ASSESSEE IS IMPARTING EDUCATION, HAVING VALID REGISTRAT ION U/S. 12AA OF THE ACT, IT IS NOT PROPER TO TOTAL DEN IAL OF EXEMPTION U/S. 11 OF THE I.T. ACT BY ALLEGING THE VIOLATION OF SECTION 13(1)(C)(II) OF THE I.T. ACT. THE ONLY ALLEGATION IS THAT THE EXCESS FEES COLLECTED BY THE TRUSTEES HAVE BEEN USED FOR TH E BENEFIT OF THE TRUSTEES AND AS SUCH, THE PROVISIONS OF SECTION 13(1)(C)(II) OF THE I.T. ACT IS APPLICABLE. IN OUR OPINION, IF THE TRUSTEES HAVE COLLECT E D EXCESS FEES FROM THE STUDENTS OR PARENTS OF THE STUDENTS, THE TRUST CANNOT BE HELD RESPONSIBLE FOR SUCH ACTIVITIES OF THE TRUSTEES AND THE TRUSTEES ARE INDIVIDUALLY LIABLE FOR COLLECTION OF EXCESS FEES AS THIS WAS COLLECTED BY THEM WITHOUT AUTHORIZATION FROM THE TRUST. THE MISCONDUCT OF THE TRUSTEES OF THE ASSESSEE - TRUST, IF ANY, COULD NOT BE MADE TO LOSE BENEFIT OF EXEMPTION U/S. 11 OF THE I .T. ACT ON THAT COUNT. FOR THE WRONG DOING OF SOME TRUSTEES OF THE TRUST, THE ASSESSEE CANNOT BE BLAMED OR PENALISED IF THE TRUSTEES HAVE COLLECTED FEES UNAUTHORIZEDLY AND KEPT IT WITH THEM. IT CANNOT BE SAID THAT THERE IS VIOLATION OF SECTION 13(1)(C)(II) OF THE I.T. ACT. IF THE TRUSTEES THEMSELVES COLLECTED EXTRA FEES FROM THE STUDENTS FOR ADMISSION AND RETAINED IT WITHOUT AUTHORITY , THE TRUST HA S NOTHING TO DO WITH TH ATACTION OF THE TRUSTEES AND IT CANNOT BE SA ID THAT THE TRUSTEES HAVE BEEN GIVEN ANY BENEFIT OR FRUITS OF THE TRUST. THE TRUSTEES HAVE UNAUTHORIZEDLY USED THE NAME OF THE TRUST FOR THE PERSONAL BENEFIT OF THE TRUSTEES AND IF THE TRUSTEES HAVE FAILED TO DISCHARGE THEIR DUTY, WITH BONA FIDE AND EARNED CERTAIN BENEFIT FROM THE TRUST , T HE TRUST IS NOT I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 73 AWARE OF THAT FACT, THE BENEFIT OF EXEMPTION U/S. 11 OF THE ACT CANNOT BE DENIED TO THE VALID TRUST . 17.9 TH E TRUST IS ONLY LIABLE FOR THE AMOUNT RECEIVED FROM THE TRUSTEES OUT OF THE EXCESS FEES COLLECTED BY THEM . IF THE EXCESS FEES COLLECTED BY THE TRUSTEES WAS RECEIVED BY THE TRUST WHICH WAS NOT ACCOUNTED, THE DEPARTMENT CAN TAX THE SAME IN THE HANDS OF THE TRUST AND EXEMPTION U/S. 11 OF THE ACT CAN BE DENIED ON THAT AMO UNT AND TOTAL DENIAL OF EXEMPTION U/S 11 IS NOT POSSIBLE . IN THE PRESENT CASE, THE EXTRA FEES RECEIVED BY THE ASSESSEE - TRUST FROM THE TRUSTEES WAS NOT ACCOUNTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND ALSO THERE IS NO EVIDENCE TO SHOW THAT IT WAS APP LIED FOR THE PURPOSE OF CHARITABLE ACTIVITIES OF THE ASSESSEE - TRUST. THUS, IT IS DEEMED THAT IT WAS APPLIED FOR PURPOSES OTHER THAN CHARITABLE PURPOSE OF THE ASSESSEE - TRUST. BEING SO, ONLY THAT PART OF INCOME IS LIABLE TO BE TAXED AT MAXIMUM MARGINAL RAT E AS ENVISAGED IN SECTION 164(3) OF THE I.T. ACT WHICH READS AS FOLLOWS: (3) IN A CASE WHERE THE RELEVANT INCOME WHICH IS DERIVED FROM PROPERTY HELD UNDER TRUST IN PART ONLY FOR CHARITABLE OR RELIGIOUS PURPOSES(OR IS OF THE NATURE REFERRED TO IN SUB - CLAUS E (IIA) OF CLAUSE (24) OF SECTION 2) OR IS OF THE NATURE REFERRED TO IN SUB - SECTION (4A) OF SECTION 11) AND EITHER THE RELEVANT INCOME APPLICABLE TO PURPOSES OTHER THAN CHARITABLE OR RELIGIOUS PURPOSES (OR ANY PART THEREOF) IS NOT SPECIFICALLY RECEIVABLE O N BEHALF OR FOR THE BENEFIT OF ANY ONE PERSON OR THE INDIVIDUAL SHARES OF THE BENEFICIARIES IN THE INCOME SO APPLICABLE ARE INDETERMINABLE OR UNKNOWN, THE TAX CHARGEABLE ON THE RELEVANT INCOME SHALL BE THE AGGREGATE OF I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 74 (A) TAX WHICH WOULD BE CHARGEABLE ON THAT PART OF THE RELEVANT INCOME WHICH IS APPLICABLE TO CHARITABLE OR RELIGIOUS PURPOSES (AS REDUCED BY THE INCOME, IF ANY, WHICH IS EXEMPT UNDER SECTION 11) AS IF SUCH PART (OR SUCH PART AS SO REDUCED) WERE THE TOTAL I NCOME OF AN ASSOCIATION OF PERSONS; AND (B) THE TAX ON THAT PART OF THE RELEVANT INCOME WHICH IS APPLICABLE TO PURPOSES OTHER THAN CHARITABLE OR RELIGIOUS PURPOSES, AND WHICH IS EITHER NOT SPECIFICALLY RECEIVABLE ON BEHALF OR FOR THE BENEFIT OF ANY ONE PE RSON OR IN RESPECT OF WHICH THE SHARES OF THE BENEFICIARIES ARE INDETERMINATE OR UNKNOWN (SUCH INCOME, SUCH PART OF THE INCOME AND SUCH PERSONS BEING HEREAFTER IN THIS SECTION REFERRED TO AS RELEVANT INCOME, PART OF RELEVANT INCOME AND BENEFICIARIES, RESPECTIVELY, (TAX SHALL BE CHARGED ON THE RELEVANT INCOME OR PART OF RELEVANT INCOME AT THE MAXIMUM MARGINAL RATE) 17.9.1 FOR THIS PROPOSITION, WE RELY ON THE FOLLOWING CASE LAWS: 1. FATHER MULLERS CHARITABLE INSTITUTIONS 363 IT 230 (KAR.) 2. DIT(E) VS. SHETH MAFATLAL GAGALBHAI FOUNDATION TRUST (249 ITR 533) (BOM.) 3. CIT VS. RED ROSE SCHOOL (163 TAXMAN 19 (ALL.) 4. DIT(E) VS. ALARIPPU (224 ITR 358(DELHI) 5. CIT VS. SARLA DEVI SARABAI TRUST (172 ITR 698 (GUJ) ACCORDINGLY, THAT PORTION OF EXTRA FEES RECEIVED BY THE ASSESSEE - TRUST IS TO BE TAXED AT MAXIMUM MARGINAL RATE. THE OTHER INCOME OF THE TRUST IS ENTITLED TO EXEMPTION U/S. 11 OF THE I.T. ACT . AND DIRECTED ACCORDINGLY. THIS GROUND OF APPEALS OF THE ASSESSEE IS PARTLY ALLOWED. GROUND NO. 2 ENHANCEMENT BY CIT(A) : AYS 2004 - 05 TO 2007 - 08 I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 75 1 8 . REGA RDING ADDITION MADE IN THE HANDS OF THE TRUST, THE CIT(A) OBSERVED THAT TRUSTEES OF THE ASSESSEE TRUST WERE COLLECTING CAPITATION FEES FROM THE STUDENTS, PART OF WHICH THEY WERE POCKETED AND THE REMAINING WAS BEING HANDED OVER TO THE TRUST WHICH WAS UNDISCLOSED IN THE BOOKS OF ACCOUNTS OF THE TRUST AND HENCE, THE CIT(A) HELD THAT THE CONTENTION OF THE ASSESSEE TRUST WAS NOT MAINTAINABLE. 1 8 .1 THE CIT(A) CONFIRMED THE FINDINGS OF THE ASSESSING OFFICER THAT THE D ETAILS GATHERED FROM THE SEIZED DOCUMENTS SHOWED THAT THE FUNDS OF THE TRUST HAVE BEEN M ISUTILIZED AND DIVERTED FOR THE PERSONAL USE OF TRUSTEES. FURTHER, THE TRUSTEES NAMELY GRACY BABU, JOSE THOMAS AND P.J. PAUL OSE, DURING THE RELEVANT YEARS, HAD WITHDRAWN AMOUNTS IN EXCESS OF THE RECEIPTS AND ALLOWANCES ALLOWABLE TO THEM AS PER THE BYLAWS OF THE TRUST AND THIS ADDITIONAL AMOUNT WITHDRAWN HAD BEEN CORRECTLY ADDED IN THE HANDS OF THE TRUSTEES BY THE AO IN EACH OF THE RELEVANT ASSESSMENT YEARS. 1 8 .2 THE CIT(A) OBSERVED THAT A PART OF THE CAPITATION FEES COLLECTED BY THE TRUSTEES HA D BEEN PASSED ON TO THE TRUST, AS PER THE SEIZED DOCUMENTS, BUT HAVE NOT BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS OF THE APPELLANT TRUST, DURING AY 2004 - 05, 2005 - 06, 2006 - 07 AND 2007 - 08. ACCORDING TO THE CIT(A), TH ESE AMOUNTS HA D BEEN COLLECTED BY THE TRUSTEES FROM THE ST UDENTS DURING THE RELEVANT I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 76 ASSESSMENT YEARS AND ARE EVIDENCED IN THE SEIZED DOCUMENTS AND THE ASSESSEE T RUST HA D NOT BEEN ABLE TO SUBSTANTIATE AND PRODUCE EVIDENCE FOR DENIAL OF RECEIPTS OF THE SAME AND THUS , AS PER THE PRESUMPTION ARISING OUT OF SECTION 132(4A), THE SAME IS TO BE ADDED IN THE HANDS OF THE ASSESSEE TR UST. THE CIT(A) DIRECTED THE AO TO ENHANCE THE INCOME OF THE T RUST, AFTER TREATING AS AOP ON A SUBSTANTIVE BASIS AS FOLLOWS: A Y AMOUNT 2004 - 05 RS.27,84,000/ - 2005 - 06 RS.20,63,000/ - 2006 - 07 RS. 7,57,300/ - 2007 - 08 RS.67,94,950/ - THE DIFFERENCE OF THE 'DONATION FROM STUDENTS COLLECTED' AND 'DONATION HANDED OVER TO THE TRUST' WAS TO BE PROTECTIVELY ADDED IN THE CASE OF THE ASSESSEE. ACCORDINGLY, THE CIT(A) ENHANCED THE INCOME . 1 8 .3 AGAINST THIS, TH E ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR SUBMITTED THAT T HE CIT(A) UPHELD THE PROTECTIVE ASSESSMENT TO THE EXTENT OF AMOUNT SHARED BY ERSTWHILE TRUSTEES AS PER SEIZED MATERIAL WHILE SUBSTANTIVELY ASSESSING THE DONATION HANDED OVER TO T RUST . HOWEVER WHILE DOING SO, THE CIT(A) HAD WRONGLY ENHANCED THE INCOME OF TRUST. IT WAS SUBMITTED THAT THE ENHANCEMENT AMOUNTS TO DOUBLE ADDITION AND AO HAS ALREADY ADDED THE ENTIRE DONATIONS COLLECTED BY ERSTWHILE I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 77 TRUSTEES WHICH INCLUDES THE DONATIONS PURPORTEDLY H ANDED OVER TO TRUST. HENCE , IT WAS SUBMITTED THAT ENHANCEMENT IS TO BE DELETED. 1 8 . 4 ON THE SUBSTANTIVE SUSTAINMENT OF ADDITION IN RESPECT OF DONATION HANDED OVER TO T RUST, THAT THE INCRIMINATING MATERIALS WERE FOUND IN THE RESIDENCE OF 3 ERSTWHILE TRUSTEES AND THE WHOLE OF DONATIONS HA D BEEN ASSESSED SUBSTANTIVELY IN THE HANDS OF 3 ERSTWHILE TRUSTEES, PROVE D THAT THE TRUST INCLUDING OTHER ERSTWHILE TRUSTEES WERE NOT P ARTY TO SUCH COLLECTIONS BY THE 3 ERSTWHILE TRUSTEES. IT WAS SUBMITTED THAT IF AT ALL THE DONATION HANDED OVER TO TRUST CAN ONLY BE CONSIDERED AS LOAN FROM ERSTWHILE TRUSTEES AND WOULD NOT FORM PART OF INCOME OF TRUST. IT WAS SUBMITTED THAT IF THE DONAT ION HANDED OVER TO TRUST IS CONSIDERED AS INCOME, THE TRUST HAVING APPLIED THE ENTIRE SUCH AMOUNT FOR ITS APPLICATION PURPOSE, NO FURTHER ADDITION WOULD BE WARRANTED IN THIS REGARD. 1 8 . 5 THE LD. AR SUBMITTED THAT IT CANNOT BE SAID THAT RS.1.23 CRS (I.E ., THAT AMOUNTS PURPORTEDLY HANDED OVER BY THE ERSTWHILE TRUSTEES TO THE T RUST) SHOULD BE ADDED AS INCOME BUT THE SAME SHOULD BE TAKEN AS PART OF GROSS RECEIPTS & THEREAFTER IT SHOULD BE SEEN IF 85% APPLICATION HAD BEEN MET BY THE TRUST , I N WHICH CASE THE TRUST WILL ENJOY FULL EXEMPTION, ELSE SUCH SHORTFALL IN APPLICATION ALONE CAN CONSTITUTE INCOME. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 78 1 8 .6 THE LD. DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 1 8 .7 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IN VIEW OF OUR FINDINGS IN PARA 17.8 OF THIS ORDER WHEREIN WE HAVE OBSERVED THAT ONLY UNACCOUNTED INCOME RECEIVED BY THE ASSESSEE - TRUST FROM THE TRUSTEES IS TO BE TAXED AT MAXIMUM MARGINAL RATE, THERE CANNOT BE ANY ENHANCEMENT OF INCOME SO AS TO ASSESSEE THE ENTIRE AMOUNT COLLECTED BY THE TRUSTEES IN THE HANDS OF THE ASSESSEE - TRUST. MORE SO, THE AMOUNT RETAINED BY THE TRUSTEES HAS BEEN ASSESSED IN THEIR RESPECTIVE HANDS. THUS, THERE CANNOT BE ANY DOUBLE ADDITION. THIS ENHANCEMENT WAS ALSO MADE BY THE C IT(A) WITHOUT GIVING ANY OPPORTUNITY OF HEARING TO THE ASSESSEE WHICH IS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE . THUS, THIS GROUND OF APPEALS OF THE ASSESSEE IS ALLOWED. GROUND NO. 3 : ENHANCEMENT BY CIT(A) AMOUNT PAID FOR CONSTRUCTION OF BUILDING RS.14.55 CRORES : FOR AY 2010 - 11 19 . THE CIT(A) OBSERVED THAT THE ASSESSEE HAD CREATED A FRESH ASSET IN HIS BALANCE SHEET FOR AY 2010 - 11 WHICH HAS IN THE SUBSEQUENT YEARS BEEN CLUBBED IN THE BUILDING EXPENDITURE UNDERTAKEN BY THE ASSESSEE TRUST DURING TH E RELEVANT YEAR AND HENCE, AN ENHANCEMENT NOTICE WAS GIVEN TO THE ASSESSEE IN REPLY TO WHICH THE ASSESSEE SUBMITTED THAT IT WAS THE OLD TRUSTEES WHO HAVE BENEFITED FROM THE VARIOUS TRANSACTIONS AND NONE OF THE CAPITATION FEES COLLECT ED BY THEM WAS PASSED ON TO THE I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 79 TRUST. FURTHER , IT WA S STATED THAT A PAYMENT OF RS.14,54,59,169/ - WAS MADE TO THE OLD TRUSTEES AS PER AGREEMENT AND REPEATED REQUEST FROM THEM STATING THAT THEY HAVE CONSTRUCTED THE BUILDING AND SUPPORTING VOUCHERS AND BI LL S S HALL BE SUBMITTED TO THE TRUST FOR THE CONSTRUCTION MADE. IT WAS SUBMITTED THAT THE PAYMENT WAS MADE AND REMITTED THE T DS PORTION U/S 194C ALSO ON THE PAYMENT TOWARDS EXPENSES INCURRED BY THEM FOR CONSTRUCTING THE BUILDING. IT WAS SUBMITTED THAT THE ADVAN CE GIVEN WAS NOT SHOWN AS UTILIZATION IN THE COMPUTATION OF INCOME OF THE TRUST AND A JOURNAL ENTRY ONLY WAS MADE IN THE BOOKS OF ACCOUNTS OF THE TRUST TRANSFERRING THE ADVANCE AMOUNT TO THE BUILDING ACCOUNT WITHOUT CLAIMING IT AS UTILIZATION. REJECTING T HE CONTENTIONS OF THE ASSESSEE THE CIT(A) ADDED THE AMOUNT OF RS.14,54,59,169/ - TO THE INCOME OF THE ASSESSEE - TRUST, WHICH IS TO BE ASSESSED AS AOP. 19.1 AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. IT WAS SUBMITTED THAT THE CIT( A) HAD ENHANCED THE INCOME OF THE TRUST BY AMOUNT OF RS. 14,54,59,169/ - FOR THE REASON THAT THE TRUST HAS PAID THE AMOUNT FOR THE PURPOSE OF CONSTRUCTION OF BUILDING TO ERSTWHILE TRUSTEES BUT HAD FAILED TO PRODUCE BILLS AND INVOICES TO SUBSTANTIATE THE SAM E. IT WAS SUBMITTED THAT THE CIT(A) HAD ACTED BEYOND JURISDICTION BY GOING INTO NEW ADDITION NOT AT ALL IN THE REALM OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER DENIED EXEMPTION U/S.11 FOR THE REASON OF VIOLATION OF SECTION 13(1)(C) AND PROTECTIVELY AD DED THE AMOUNTS PURPORTEDLY IN VIOLATION I.E., I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 80 DONATIONS. THE ISSUE OF AMOUNT GIVEN FOR CONSTRUCTION WAS AN ENTIRELY NEW ISSUE WHICH WAS NOT AT ALL CONSIDERED BY AO AND THE JURISDICTION TO DEAL WITH THE SAME IS ONLY U/S..1 47 / 148 / 263. RELIANCE IN THIS C ONNECTION WAS PLACED ON THE DECISION OF FULL BENCH OF DELHI HIGH COURT IN CIT V SARDARILAL & CO (2011 251 ITR 684 (DEL) (FB). 19 . 2 IT WAS SUBMITTED T HAT THE BUILDING EXIST ED AND A COLLEGE WAS RUNNING IS TESTIMONY OF THE CONSTRUCTION HAVING TAKEN PLACE AN D THE TOTAL BUILT - UP AREA OF THE BUILDINGS TOTALS TO 236,999.78 SQUARE FEET (220,118.57 SQUARE METER). IT WAS SUBMITTED THAT E VEN CONSIDERING A CONSERVATIVE PER SQUARE FEET RATE OF OF RS.1400 PER SQUARE FEET, THE TOTAL COST COMES TO RS.33.18 CRORES. THE LD . AR SUBMITTED THAT A S PER THE AUDITED BALANCE SHEET OF AY 2018 - 19, THE GROSS BUILDI NG VALUE (WITHOUT DEPRECIATION) WAS RS.24,38,23,931.53 AND THIS AMOUNT WAS INCLUSIVE OF RS.14,54,59,169 / - GIVEN TO THE ERSTWHILE TRUSTEES WHO CONSTRUCTED THE BUILDINGS FOR THE TRUST WHICH CLEARLY SHOW ED THAT THERE HAD BEEN NO OVERSTATEMENT OF BUILDING VALUE AND THE AMOUNT PAID WAS FOR THE BUILDINGS CONSTRUCTED BY THEM. THUS, THERE WAS NO VIOLATION OF SECTION 13( 1 )(C). THE AMOUNT PAID TO THE ERSTWHILE TRUSTEES WERE FOR THE CON STRUCTION OF INFRASTRUCTURE. IT WAS SUBMITTED THAT NO BENEFIT ARISES TO THE ERSTWHILE TRUSTEES THROUGH THE PAYMENT OF RS. 14,54,59,169/ - MADE TO THEM BY THE TRUST. SUCH BENEFIT WOULD HAVE BEEN THERE, IF IT WAS DIVERSION OF TRUST FUNDS BY VIRTUE OF SECTION 13(2)(G). IT WAS SUBMITTED THAT THE PAYMENTS WERE MADE TO OFFSET I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 81 THE COST OF CONSTRUCTION OF BUILDING DONE BY THE ERSTWHILE TRUSTEES A ND HENCE , THERE WAS NO DIVERSION. 19 .3 THE LD. AR SUBMITTED THAT THE TRUST DID NOT CLAIM RS. 14.55 CRORES AS EXPENDITURE OR APPLICATION AND HENCE , THE SAME CANNOT BE ADDED TO INCOME OF THE TRUST (COPY OF B ALANCE SHEET AND INCOME AND EXPENDITURE ACCOUNT FOR YEAR ENDED 31.03.2009, 31.03.2010 AND 31.03.2011 ALONG WITH ENCLOSURES PLACED BEFORE THE BENCH IN SERIAL NUMBER 11 TO 1 2 OF THE PAPER BOOK). EVEN OTHERWISE, IT WAS SUBMITTED THAT THE TOTAL VALUE OF THE BUILDING WITH THE BUILT UP AREA OF 236,999 . 78 SQUARE FEET WOULD NOT BE LESS THAN RS.3 3.18 CRORES AGAINST THE BALANCE SHEET VALUE AS ON 31.03 . 2018 IS ONLY RS.24,38,23,931.53 AND T HIS WILL OFFSET THE DIFFERENCE . IT WAS SUBMITTED THAT THE ASSESSEE HAD GIVEN CONSTRUCTION CONTRACT TO ERSTWHILE TRUSTEES WHO CARRIED OUT THE SAME AND SINCE THE ASSESSEE DID NOT UNDERTAKE CONSTRUCTION IT WAS NOT IN POSSESSION OF BILLS AND INVOICES. I T WAS SUBMITTED THAT IF AT ALL ONLY THE INCOME OVER EXPENDITURE FOR THE A.Y.2010 - 11 AMOUNTING TO RS.2,31,78,710 / - CAN BE TAXED SUBJECT TO SET OFF OF EXCESS APPLICATION OF EARLIER YEARS. 19 .4 THE LD. DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 19 .5 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. AS DISCUSSED IN THE CASE OF JOSE THOMAS AND GRACY BABU IN ITA NOS. 23 8 & 239/COCH/2019 IN PARA I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 82 12.7 AND 12.8 OF THIS ORDER, WHEREIN IT WAS HELD THAT THERE WAS CONSTRUCTION ACTIVITY CARRIED OU T BY TH O SE TWO ASSESSES AS EVIDENCED BY THE AGREEMENTS CITED SUPRA AND THE CONSTRUCTION WAS REFLECTED IN THE BALANCE SHEET OF THE PRESENT ASSESSES WHICH WAS SUBJECTED TO TDS. THUS, BY ANY STRETCH OF IMAGINATION, IT CANNOT BE SAID THAT THERE WAS NO CONSTRU CTION ACTIVITY CARRIED OUT BY THE ASSESSES AND IT CANNOT BE SAID THAT PAYMENTS WERE NOT MADE TOWARDS CONSTRUCTION OF BUILDING WHICH WAS FOR THE ESTABLISHMENT OF EDUCATIONAL INSTITUTION . THUS, THIS GROUND OF APPEALS OF THE ASSESSEE IS ALLOWED. GROUND NO. 4 : SET OFF OF EXCESS APPLICATION OF EARLIER YEARS 2 0 . WITH RESPECT TO NON - CONSIDERATION OF CARRY FORWARD OF DEFICITS OF EARLIER YEARS BEFORE COMPUTING THE INCOME OF THE TRUST AS AO P, THE CIT( A) OBSERVED THAT ONCE THE STATUS OF THE ASSESSEE IS CHANGED TO THAT OF AN AOP, THE CARRY FORWARD OF DEFICIT OF EARLIER YEARS CANNOT BE ALLOWED AS THE SAME WAS ELIGIBLE ONLY FOR THE STATUS IN WHICH VALID RETURN OF INCOME WAS FILED WITHIN THE PRESCRIBED TIM E. HENCE, THE CIT(A) CONFIRMED THE FINDING OF THE ASSESSING OFFICER. 2 0 . 1 THE LD. AR SUBMITTED THAT E XCESS APPLICATION OF EARLIER YEARS CAN BE SET OFF AGAINST DEFICITS IN SUBSEQUENT YEAR. RELIANCE WAS PLACED ON FOLLOWING CASE LAWS: CIT (EXEMPTION) V SUBROS EDUCATIONAL SOCIETY 2018 (4) TMI 1622 (SC), CIT V MATRISEVA TRUST [2000] 242 ITR 0020 (MAD) I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 83 GONVINDU NAICKER ESTATE V ADIT [2001 ] 248 ITR 0368 (MAD) CIT V SHRI PLOT SWETAMBER MURTI PUJAK JAIN MANDAL [1995] 211 ITR 0293 (GUJ) CIT V MAHARANA OF MEWAR CHARITABLE FOUNDATION [1987] 164 ITR 0439 (RAJ) IT WAS SUBMITTED THAT T HE AO AND THE CIT(A) HAD NOT ALLOWED SET OFF FOR THE REASON THAT THE TRUST HAS LOST ITS STATUS ON ACCOUNT OF DENIAL OF EXEMPTION U/S. 11 DUE TO WHICH IT WAS ASSESSED A S AOP. 2 0 . 2 THE LD. DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 2 0 .3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. SINCE WE HAVE HELD THAT THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S. 11 OF THE ACT, EXCESS APPLICATION OF EARLIER YEARS COULD BE SET OFF AGAINST DEFICITS IN THE NEXT ASSESSMENT YEAR. THIS VIEW OF OURS IS SUPPORTED BY VARIOUS JUDGMENTS IN THE CASES CITED BY LD. AR WHEREIN IT WAS HELD THAT THE EXPENDITURE INCURRED BY THE TRUST ON RELIGIOUS/CHARITABLE PURPOSES IN EARLIER YEAR OR YEARS CAN BE ADJUSTED AGAINST THE INCOME OF THE SUBSEQUENT YEAR IRRESPECTIVE OF THE HEAD OF INCOME UNDER WHICH IT WAS INCURRED. ACCORDINGLY, THE ASSESSING OFFICER HAS TO RE - COMPUTE THE INCOME. THUS, THIS GROUND OF APPEALS OF THE ASSE SSEE IS ALLOWED. THUS, THE ASSESSES APPEALS IN ITA NO. 304 TO 310/COCH/2019 ARE PARTLY ALLOWED. I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 84 21. IN THE RESULT, THE APPEAL S OF THE ASSESSES IN ITA NO. 27 TO 30/COCH/2019 AND 32 TO 34/COCH/2019 ARE DISMISSED. T HE APPEAL S OF THE ASSESSES IN ITA NO. 31 & 35/COCH/2019, 208 TO 213/COCH/2019 AND 304 TO 310/COCH/2019 ARE PARTLY ALLOWED. T HE APPEAL OF THE ASSESSE IN ITA NO. 207/COCH/2019 IS ALLOWED. T HE APPEAL S OF THE REVENUE IN ITA NO. 54 , 55/COCH/2019 , 238 AND 239/COCH/2019 ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH SEPTEMBER , 2019 SD/ - SD/ - (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 30 TH SEPTEMBER , 2019 G J COPY TO: 1 . JOSE THOMAS, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. 2. SMT. GRACYBABU, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. 3. SMT. REENA JOSE, PADIJAREVEETTIL, PUTHENVEEDU, ADOOR P.O., PATHANAMTHITTA - 691 523. 4. M/S. CARMEL EDUCATIONAL TRUST , KOONAMKARA P.O., PERUNAD, RANNI, PATHANAMTHITTA - 689 711. 5 . THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. 6. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOTTAYAM. 7 . THE COMMISSIONER OF INCOME - TAX (AP P EALS) - III , KO CHI. 8 . THE COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOCHI. 9 . D. R., I.T.A.T., COCHIN BENCH, COCHIN. 10 . GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN I.T.A. NOS.27 - 35/COCH/2019, 54&55/COCH/2019, 208 - 213/COCH/2019, 238&239/COCH/2019, 207/COCH/2019 & 304 - 310/COCH/2019 85