2021 (8) TMI 663 - HC - Income Tax

Penalty levied u/s 271G - non furnish of information as per section 92D - bonafide belief - HELD THAT - Though we have held that the explanation offered by the assessee stating that they are a novice to transfer pricing transactions, which is not prima facie acceptable, but the conduct of the assessee in complying with 12 items out of 16 items as called for by the TPO can be considered to be reasonable and the act cannot be held to be an unreasonable act, but can be considered as a reasonable act of an organization acting with prudence under normal circumstances without negligence or inaction or want of bonafides. There is no finding recorded by the Assessing Officer that the conduct of the assessee lacks bonafide or there was supine indifference on the part of the assessee in not producing the records called for by the TPO, despite notice and despite fixing time frame and not furnishing all the details was on account of inaction leading to failure on the part of the assessee to invoke Section 271G of the Act. - Decided against revenue. Therefore, we are of the view that on facts, the Tribunal rightly held in favour of the assessee by affirming the order passed by the CIT(A). - Decided against revenue.

Summary

Issues:
1. Appeal against order under Section 260A of the Income Tax Act, 1961.
2. Penalty under Section 271G of the Income Tax Act, 1961.
3. Compliance with notice under Section 92D(3) of the Act.
4. Justification for penalty imposition.
5. Comparison with similar cases.
6. Defect in notice issuance.

Analysis:
1. The appeal was filed against an order under Section 260A of the Income Tax Act, 1961, concerning the assessment year 2006-07. The issue revolved around upholding the order of the CIT(A) directing the Assessing Officer to delete the penalty levied under Section 271G of the Act.

2. The penalty under Section 271G was initiated as the assessee allegedly did not comply with the letter issued by the Transfer Pricing Officer (TPO) requiring information under Sections 92D and 92E of the Act. The TPO found no need for adjustments, and the Assessing Officer accepted the total income/loss returned by the assessee. The penalty was imposed at 2% of the value of the international transaction.

3. The key contention was whether the notice issued by the TPO under Section 92D(3) was valid. The TPO's communication dated 25.11.2008 requested specific information within a deadline. The Tribunal did not explicitly determine if this communication constituted a notice under Section 92D(3), but the High Court found it to be a valid notice. The assessee argued belated compliance due to lack of experience in transfer pricing regulations.

4. The High Court analyzed the justifiability of penalty imposition under Section 271G. It noted that the TPO was satisfied with the documents produced by the assessee and did not initiate penalty proceedings. The Court found the assessee's compliance with 12 out of 16 items reasonable, considering the circumstances. It emphasized the absence of findings indicating lack of bonafide conduct or negligence on the assessee's part.

5. A comparison with a similar case where no leniency was shown in penalty imposition was made. The Court distinguished the current case based on factual features, highlighting the reasonable conduct of the assessee in complying with most requirements despite initial unfamiliarity with transfer pricing regulations.

6. Lastly, the argument regarding a defective notice issuance under Section 92D(3) was addressed. The Court dismissed this claim, stating that the notice was in full compliance with the statutory provision. Consequently, the tax case appeal was dismissed, and the substantial question of law was answered against the Revenue without costs.