IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 ITA.No. 271 of 2009() --------------------- ITA.457/COCH/2005 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ---------------------------------------- THE COMMISSIONER OF INCOME TAX TRIVANDRUM. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): APPELLANT ------------------------ M/S. P.T.CHACKO & CO. CONTRACTORS, KALANJOOR, PATHANAPURAM. ADV. SRI.P.BALAKRISHNAN (E) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- I. T. A. No. 271 OF 2009 -------------------------------------------- Dated this the 9th day of November, 2009 JUDGMENT Ramachandran Nair, J. The question raised is whether the Tribunal was justified in casting burden on the department to prove concealment of income before levying penalty under Section 271(1)(c) of the Income Tax Act. Standing counsel has relied on the Division Bench decision of this Court in CIT V. GURUVIJAYA KURI CO. LTD., 302 I.T.R. 239 (Ker.) and that of the Supreme Court in UNION OF INDIA V. DHARMENDRA TEXTILES PROCESSORS , 306 I.T.R. 277 and contended that the Tribunal was not justified in holding that in the absence of concealment established by the Officer, penalty could not be levied under Section 271(1)(c) of the Act. We find force in this contention because addition sustained is work-in-progress which is expenditure incurred by the assessee for executing the work in the previous year. Further, payment is received in the beginning of the subsequent year. It is seen that assessment is sustained in appeals and 2 assessee has not contested the orders sustaining assessment. Even though assessee put up a case that wages were paid after the end of the previous year, the lower authorities have not accepted the same. In any case, we feel the Tribunal went wrong in completely casting burden on the department to prove concealment of income. When suppression was detected and addition made in assessment and sustained in appeals, it is for the assessee to establish how addition cannot be treated as income representing concealment. Since the Tribunal has decided the case by merely holding that the department has not discharged their burden, which we find not acceptable, we set aside the order of the Tribunal and remand the matter back to the Tribunal for reconsideration of the matter after giving opportunity to the assessee to establish their case. (C.N.RAMACHANDRAN NAIR) Judge. (V.K. MOHANAN) Judge. kk 3