2012 (12) TMI 237 - AT - Income Tax

Penalty u/s 271(1)(c) - Transfer pricing Arm length price - Whether multiple year data can be used or the current year data has to be used to calculate arm length price Held that - This is a debatable issue at the point of time when the assessee filed its return of income, the assessee adopting multiple year data for arriving at arm s length price is a bonafide exercise. Thus penalty levied on that account cannot be sustained. The law on this issue was evolving. Transfer pricing Deletion of comparable - TPO has accepted the same in the earlier AYs Held that - Selection of comparables is a subjective exercise. The assessee has seriously contested the conclusions drawn by the TPO on selection of comparables for bench marking of international transactions. It is another matter that the assessee chose not to carry the issue in appeal, the reasons of which have been explained. the assessee acted in the bonafide manner in conducting its transfer pricing study and arriving at an arm s length price. The explanation is bonafide and under those circumstances the levy of penalty under Section 271(1)(c)is not warranted. In favour of assessee

Summary

Issues:
Penalty under Section 271(1)(c) of the Income Tax Act, 1961 for inaccurate particulars and failure to provide a bonafide explanation in respect of the addition made to the returned income.

Detailed Analysis:

Issue 1: Penalty under Section 271(1)(c) for inaccurate particulars
The appellant, a company providing marketing support services, filed a return of loss for the Assessment Year 2006-07, which was selected for scrutiny. The Assessing Officer made a transfer pricing adjustment of &8377; 2,25,67,539 and initiated penalty proceedings under Section 271(1)(c). The penalty was levied based on the grounds that the appellant furnished inaccurate particulars and failed to disclose all material facts in the computation of total income. The First Appellate Authority confirmed the penalty, stating that the comparability analysis was based on earlier years' data, which was against the provisions of the Income Tax Act, 1961. The appellant contended that the penalty was unjustified as the issue was debatable, and there was no malafide intention. The Tribunal held that the penalty cannot be automatically ruled out in transfer pricing cases and must be determined based on the facts of each case. The burden is on the assessee to explain the difference between assessed and returned income, and the bonafide nature of the explanation is crucial. The Tribunal considered various case laws and concluded that in this case, the appellant's use of multiple year data for transfer pricing was a bonafide exercise, making the penalty unjustified.

Issue 2: Failure to provide a bonafide explanation for the addition made to the returned income
The appellant argued that the penalty for inaccurate documentation and failure to provide a bonafide explanation was erroneous. The appellant's counsel contended that no penalty can be levied when certain comparables are included and excluded, causing variations. The Departmental Representative argued that the appellant's actions, including using multiple year data and selecting comparables without proper justification, amounted to furnishing inaccurate particulars. The Tribunal noted that the selection of comparables is a subjective exercise and that the appellant's transfer pricing study was conducted in a bonafide manner. The Tribunal found that the explanation provided by the appellant was bonafide, and therefore, the levy of penalty under Section 271(1)(c) was not warranted. The Tribunal allowed the appeal of the assessee, setting aside the penalty imposed by the Assessing Officer.

This detailed analysis highlights the key arguments, legal principles, and the Tribunal's reasoning in the judgment regarding the penalty under Section 271(1)(c) of the Income Tax Act, 1961 for inaccurate particulars and failure to provide a bonafide explanation in respect of the addition made to the returned income.