2017 (11) TMI 209 - AT - Income Tax

Penalty u/s 271(1)(c) - transfer pricing adjustment - difference in determination of ALP - Held that - The assessee had obtained a transfer pricing study from an outside expert and the objectivity of the same was not called into question. Therefore, lack of due diligence in determining the ALP is neither indicated nor can be inferred. In such a situation, it cannot be said that the assessee had not determined the ALP in accordance with the scheme of section 92C in good faith and with due diligence and accordingly, the conditions precedent for invoking Explanation 7 to section 271(1)(c) did not exist on the facts of the instant case. Disallowance of advances/balances written off and disallowance out of miscellaneous expenses - CIT (A) has confirmed the penalty on these additions on the ground that the assessee had accepted these additions and that the assessee did not furnish any evidence in support of the write off of advances - Held that - In the instant case it cannot be said that the assessee had withheld any relevant information regarding miscellaneous expenses or advances/balances written off. The assessee has duly disclosed these amounts in its profit/loss account and has also submitted details thereof during the assessment proceedings. The only reason the penalty was imposed was that the lower authorities did not accept the explanation of the assessee and imposed penalty for concealment of income. Thus, the bona fides of the assesssee cannot be doubted in such circumstances. With regard to the provisions of section 271(1)(c ) of the Act pertaining to penalty, the Hon ble Apex Court has authoritatively laid down that making of a claim by the assessee which is not sustainable will not tantamount to furnishing inaccurate particulars in CIT vs. Reliance Petroproducts Pvt. Ltd. (2010 (3) TMI 80 - SUPREME COURT ) Assessee appeal allowed.

Issues Involved:
1. Legality and jurisdiction of the notice and order imposing penalty under section 271(1)(c).
2. Failure to record satisfaction before initiating penalty proceedings.
3. Consideration of information and materials on record.
4. Specificity of the charge in initiating and imposing penalty.
5. Opportunity of being heard before imposing penalty.
6. Interpretation differences in computing Arm's Length Price (ALP).
7. Disallowance of balances and advances written off.
8. Disallowance of miscellaneous expenses without opportunity to explain.
9. Equating addition/disallowance with concealment of income.
10. Legal sustainability of additions/disallowances under the Income Tax Act.
11. Justification and excessiveness of the penalty imposed.

Detailed Analysis:

1. Legality and Jurisdiction of Notice and Penalty Order:
The assessee argued that the notice issued under section 271(1)(c) and the subsequent penalty order were illegal, bad in law, and without jurisdiction. The Tribunal noted that the Assessing Officer (AO) did not record satisfaction before initiating penalty proceedings, making the notice and penalty order defective and without jurisdiction.

2. Failure to Record Satisfaction:
The assessee contended that no satisfaction was recorded before initiating penalty proceedings. The Tribunal agreed, emphasizing that the AO failed to establish a specific charge of concealment or furnishing inaccurate particulars of income, rendering the penalty proceedings flawed.

3. Consideration of Information and Materials:
The assessee claimed that the information and materials on record were not properly considered. The Tribunal observed that the AO and CIT(A) did not thoroughly examine whether penalty was imposable, especially regarding the transfer pricing adjustment and corporate tax additions.

4. Specificity of the Charge:
The assessee argued that the penalty was imposed without specifying the charge. The Tribunal found that the notice issued under section 274 did not mention the specific charge, making the penalty imposition unsustainable.

5. Opportunity of Being Heard:
The assessee contended that the penalty was imposed in haste without giving an opportunity to be heard. The Tribunal noted that the AO did not provide adequate opportunity to the assessee to explain its position, particularly concerning miscellaneous expenses.

6. Interpretation Differences in Computing ALP:
The assessee argued that the disallowance proposed by the TPO was due to different interpretations. The Tribunal held that the determination of ALP was a debatable issue, and merely because the TPO adopted a different method, it could not lead to the conclusion of concealment or furnishing inaccurate particulars of income. The Tribunal emphasized that the assessee computed ALP in good faith and due diligence, and the penalty could not be imposed on debatable issues.

7. Disallowance of Balances and Advances Written Off:
The assessee claimed that complete disclosure was made regarding balances and advances written off. The Tribunal found that the assessee disclosed these amounts in its profit/loss account and provided details during assessment proceedings. The Tribunal held that the penalty could not be imposed merely because the lower authorities did not accept the assessee's explanation.

8. Disallowance of Miscellaneous Expenses:
The assessee argued that no opportunity was given to explain the position regarding miscellaneous expenses. The Tribunal noted that the AO did not establish any concealment of income or furnishing of inaccurate particulars, and the expenses were for business purposes. The Tribunal held that the penalty imposition was unjustified.

9. Equating Addition/Disallowance with Concealment:
The assessee contended that additions/disallowances should not be equated with concealment of income. The Tribunal agreed, stating that making an incorrect claim does not tantamount to furnishing inaccurate particulars, as per the Supreme Court judgment in CIT vs. Reliance Petroproducts Pvt. Ltd.

10. Legal Sustainability of Additions/Disallowances:
The assessee argued that the additions/disallowances were not legally sustainable. The Tribunal found that the lower authorities did not provide a sound basis for imposing the penalty, and the assessee's claims were made in good faith.

11. Justification and Excessiveness of Penalty:
The assessee contended that the penalty imposed was unjust, arbitrary, and excessive. The Tribunal held that the penalty was not justified, given the facts and circumstances of the case and the settled judicial precedents.

Conclusion:
The Tribunal allowed the appeal, setting aside the order of the CIT (A) and directing the AO to delete the penalty. The Tribunal emphasized that the penalty under section 271(1)(c) could not be sustained due to the debatable nature of the issues, lack of specific charge, and the assessee's good faith and due diligence in computing ALP.

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