2019 (1) TMI 1524 - AT - Income Tax

Penalty u/s 271(1)(c) - TPA adjustment - assessee has used multiple year data in computing the ALP - Held that - TPO/Assessing Officer has held that such action by the assessee is contrary to the provisions of the Act and would tantamount to furnishing of inaccurate particulars of income. In our understanding of the law, prior to 2007, there was a legal debate as to whether multiple year data can be used or current year data has to be used. In our considered opinion, this being a debatable issue at that point when the assessee filed its return of income, adoption of multiple year data for arriving at ALP is a bonafide exercise. Therefore, it cannot be said that the assessee has not done TP exercise in good faith and with due diligence. Another reason for making the adjustments was that the assessee had claimed capacity utilisation which was denied by the TPO/CIT(A)/ITAT. The difference in level of capacity utilisation is an accepted principle though denied in the case of the assessee but then the same cannot tantamount to filing TP report without good faith and due diligence. Considering the TP documentation of the assessee in totality, we are of the considered opinion that neither Explanation 1 as applied by the Assessing Officer nor Explanation 7 as applied by the CIT(A) to section 271(1)(c) of the Act apply. No merit in the penalty so levied and we, accordingly, direct the Assessing Officer to delete the same. - decided in favour of assessee

Summary

Issues:
Levy of penalty under section 271(1)(c) of the Income-tax Act, 1961 based on inaccurate particulars of income claimed by the assessee.

Analysis:

1. Background: The appeal pertains to the levy of penalty under section 271(1)(c) of the Income-tax Act, 1961 by the DCIT, Circle 12(1), New Delhi for A.Y 2007-08. The penalty was imposed based on the assessment order dated 24.10.2011, which made adjustments related to software development services, purchase of raw material, consultancy fees, and purchase of finished goods.

2. Tribunal's Decision: The Tribunal, in an earlier order dated 15.03.2013, upheld some adjustments while deleting others, leading to the Assessing Officer invoking Explanation 1 of section 271(1)(c) for penalty imposition.

3. Contentions: The assessee argued that the Transfer Pricing (TP) analysis was done diligently and in good faith, maintaining proper documentation. The Assessing Officer, on the other hand, supported the penalty imposition based on inaccurate particulars furnished by the assessee.

4. Consideration by the Tribunal: The Tribunal analyzed the TP documentation and the adjustments made. It noted that the use of multiple-year data for ALP computation was a debatable issue pre-2007. The Tribunal found that the TP exercise was done in good faith and with due diligence, considering the legal ambiguity at the time of filing.

5. Capacity Utilization Claim: Another reason for adjustments was the capacity utilization claim by the assessee, which was denied by authorities. However, the Tribunal held that this difference did not imply bad faith or lack of diligence in filing the TP report.

6. Conclusion: After a thorough review of the TP documentation and the circumstances, the Tribunal concluded that neither Explanation 1 nor Explanation 7 to section 271(1)(c) applied in this case. The Tribunal directed the Assessing Officer to delete the penalty imposed, as it found no merit in its levy.

7. Final Decision: Consequently, the appeal of the assessee was allowed, and the penalty under section 271(1)(c) was directed to be deleted. The order was pronounced on 28.01.2019.

This detailed analysis showcases the Tribunal's evaluation of the TP exercise, legal ambiguities, and the absence of mala fide intent in the assessee's actions, leading to the decision to overturn the penalty imposition.