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TMI Blog2003 (7) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the burden of proof on Revenue in respect of concealment of income - matter must be remitted to the Tribunal for fresh consideration in accordance with law - - - - - Dated:- 4-7-2003 - Judge(s) : G. SIVARAJAN., KURIAN JOSEPH. JUDGMENT This is an appeal filed by the Commissioner of Income-tax, Thiruvananthapuram, against the order of the Income-tax Appellate Tribunal, Cochin Bench, in C. O. No. 41 (Coch.) of 1999 in I. T. A. No. 682 (Coch.) of 1995 cancelling the penalty under section 271(1)(c) of the Income-tax Act, 1961, for short "the Act". While admitting the appeal notice was ordered on the following questions of law: "1. Whether, on the facts and in the circumstances of the case and in the light of the decisions of the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) on the ground that there was concealment of income on the part of the assessee? 5. Whether, on the facts and in the circumstances of the case, (i) should not the Tribunal have considered the case under the relevant Explanation; (ii) the Tribunal is right in law in placing the burden of proof on the Revenue? 6. Whether, on the facts and in the circumstances of the case and after having found that 'as the assessee admitted that the sum of Rs. 1,68,748 could be assessed as income he cannot now deny that there was no omission or error in not disclosing the same in the return of income furnished by him' should not the Tribunal have considered the case under the relevant Explanation without placing the burden of proof on the Revenue? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case and solely relying on the submission of counsel and the self-serving affidavit of the assessee and without giving an opportunity to the Revenue to rebut, the Tribunal is right in law and fact in condoning the long delay of four years in filing the cross objection? 10. Whether, on the facts and in the circumstances of the case and in view of the fact that only when the assessee received summons from the Chief Judicial Magistrate, Ernakulam, in the case filed by the Revenue under section 276C, the assessee has chosen to file the cross objection the Tribunal is right in law in condoning the delay based on some other 'material' and without affording an opportunity to the Revenue to rebut the evidence or material?" The brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. After considering the objections filed by the assessee the officer imposed a minimum penalty of Rs. 1,20,000 as per order dated August 17, 1992, on a concealed income of Rs. 2,12,245 (annexure A). The assessee took up the matter in appeal before the Commissioner of Income-tax (Appeals), Thiruvananthapuram, who by his order dated June 28, 1995, (annexure B), allowed the appeal in part. The first appellate authority held that the sum of Rs. 43,499 disallowed cannot be reckoned since this was deleted by the Commissioner of Income-tax (Appeals) in the quantum appeal. It was also held that the assessee had surrendered the amount of Rs. 1,68,748 only as a result of the queries made by the Assessing Officer and therefore the offer made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other decisions in ITO v. C. D. Joseph (Late) [2004] 266 ITR 609 (Ker) and Kerala Chemicals and Proteins Ltd. v. CIT [1999] 235 ITR 467 (Ker). Senior counsel on the basis of all these decisions submitted that the decision of the Tribunal is erroneous. Senior counsel therefore submits that the Tribunal must be directed to consider the question in the light of the principles laid down by the Supreme Court and this court on the question of burden in the abovementioned cases. Sri Thottathil B. Radhakrishnan, learned counsel appearing for the respondent/assessee, submits that the Tribunal had in fact found as a fact that the omission to include the two amounts, namely, Rs. 40,413 shown as advance received from Kalpaka Finance, Thiruvananthap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it observed that the omission to include the two amounts in the return was bona fide. However, the Tribunal has considered the matter in the light of the principles laid down by the Supreme Court and of this court mentioned in the order itself. It is an admitted position that those principles are no more good law in view of the decisions of the Supreme Court and of this court relied on by senior counsel for the Revenue in support of his contentions regarding the burden. In these circumstances, we are of the view that the matter must be remitted to the Tribunal for fresh consideration in accordance with law. We accordingly set aside the order of the Tribunal and remit the matter back to the Tribunal for fresh consideration in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X
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