2016 (3) TMI 824 - AT - Income Tax

Penalty u/s 271(1)(c) - assessee not adopting for CUP method and not benchmarking each of the transaction separately - Held that - Failures of the assessee include (i) not adopting for CUP method and (ii) not benchmarking each of the transaction separately. AO actually benchmarked all transactions in aggregation while applying the CPM. Assessee is well aware about the availability of CUPs atleast for the two international transactions. In that sense, we find due diligence is not in existence in not using the CUP method and not benchmarking the transaction with the TP study. As such, assessee agreed to the above benchmark study of the TPO considering the merits of the TPO s proposals. Next condition relates to the good faith . Good faith is not demonstrated before us / lower authorities. In fact, the assessee is silent in the explanations on both the due diligence and good faith issues. We have perused the explanation furnished by the assessee before the AO and the CIT (A) and find, assessee is casual and his explanation is general in nature. Therefore we are of the opinion, this is the fit case for levy of penalty and therefore, we affirm the decision taken by the lower authorities. - Decided against assessee

Summary

Issues Involved:
Levy of penalty under section 271(1)(c) of the Income Tax Act based on transfer pricing adjustments for the assessment year 2003-2004.

Detailed Analysis:

1. Background and Transfer Pricing Adjustment:
The appeal concerns the imposition of a penalty under section 271(1)(c) of the Income Tax Act due to transfer pricing adjustments made by the Transfer Pricing Officer (TPO). The TPO added a sum under section 92C of the Act, leading to a penalty of Rs. 71,812. The appellant, engaged in pharmaceutical products manufacturing and trading, had international transactions with associated enterprises in Cyprus, UK, and Switzerland. The TPO identified comparable uncontrolled transactions (CUP) involving unrelated parties for benchmarking purposes, resulting in the adjustment of Rs. 2,05,177.

2. Penalty Proceedings and Assessee's Explanation:
Penalty proceedings were initiated, and the appellant explained the necessity of dealing through AEs in stable countries due to the unstable conditions in Ukraine. The appellant argued against concealment of income, citing the agreed additions based on price differences with unrelated parties. The Assessing Officer (AO) levied the penalty, emphasizing the failure to use CUP method in transfer pricing studies.

3. First Appellate Authority's Decision:
The CIT (A) upheld the penalty, highlighting the appellant's failure to demonstrate good faith and due diligence in using the CUP method. The appellant's submissions were deemed inadequate in meeting the conditions under Explanation 7 of section 271(1)(c) of the Act, leading to the confirmation of the penalty.

4. Arguments Before the Tribunal:
The appellant's counsel argued for the absence of dishonesty and reasonable decision-making in selecting the Cost Plus Method, citing a relevant ITAT decision. However, the failure to provide detailed explanations on due diligence and good faith in the selection of the transfer pricing method weakened the appellant's case.

5. Tribunal's Decision and Rationale:
After considering both parties' arguments and the TP study material, the Tribunal found the appellant's failure to utilize available CUPs and transaction-to-transaction benchmarking. The Tribunal emphasized the lack of due diligence and good faith in the appellant's actions, leading to the affirmation of the penalty based on Explanation 7 of the Act. The Tribunal dismissed the appellant's appeal, concluding that the penalty was justified given the circumstances.

In conclusion, the Tribunal upheld the penalty under section 271(1)(c) due to the appellant's failure to demonstrate due diligence and good faith in transfer pricing practices, resulting in the confirmation of the penalty imposed by the lower authorities.