2020 (1) TMI 44 - AT - Income Tax

Penalty imposed u/s 271G - assessee has not maintained information/documents required under section 92D(1) r/w rule 10D for enabling him to determine the ALP - HELD THAT - In the present case, it is not a fact that the assessee has not maintained any information as required under section 92D(1) r/w rule 10D(1). The facts on record clearly indicate that the assessee, indeed, has maintained a number of information/documents as required under the statutory provisions. In fact, the assessee has furnished segmental profitability at gross level. No specific discrepancy has been pointed out by the TPO with regard to the information furnished by the assessee including segmental profitability. Further, the assessee has also explained why it is not possible to furnish certain information sought by the TPO qua applicability of internal CUP method. In this regard, detailed written submission has been filed by the assessee before the TPO which has been properly evaluated by learned Commissioner (Appeals) and the difficulty in maintaining the information sought by the TPO has been well explained and analysed. Ultimately the TPO has accepted the benchmarking done by the assessee under TNMM and no variation/adjustment was made by him to the ALP. Even, assuming that the assessee has not maintained documents as required or was unable to support the benchmarking done by it under TNMM, nothing prevented the TPO in discarding the benchmarking done by the assessee and determining the ALP of the international transaction with the AE independently by applying any one of the prescribed method. When the statutory provisions confer enough power on the TPO to benchmark the international transaction as per the provisions of the Act, the allegation of the TPO that due non furnishing of documents by the assessee he was prevented from determining the arm's length price under CUP or PS method is unacceptable. Therefore, when the TPO has accepted the benchmarking of the assessee, the imposition of penalty under section 271G of the Act is unsustainable. See M/S. LEO SCHACHTER DIAMONDS INDIA PVT. LTD. 2019 (3) TMI 690 - ITAT MUMBAI - Decided in favour of assessee.

Summary

Issues:
Challenge to deletion of penalty under section 271G for assessment year 2012-13 based on Transfer Pricing Officer's (TPO) observations and compliance with arm's length price (ALP) determination.

Analysis:
The appeal was filed by the Revenue against the order deleting the penalty imposed under section 271G of the Income-tax Act, 1961 for the assessment year 2012-13. The case involved an Indian company engaged in international transactions with its overseas Associated Enterprises (AEs). The TPO was unable to determine the ALP due to alleged lack of profitability details of AE and non-AE transactions at net margin level. The TPO initiated penalty proceedings under section 271G, imposing a penalty of ?16,14,61,108. The Commissioner (Appeals) deleted the penalty based on the assessee's submissions.

The Departmental Representative argued that the onus was on the assessee to prove ALP compliance, highlighting the lack of segment-wise documentation. The Authorized Representative contended that substantial compliance was made, and the TPO ultimately accepted the ALP shown by the assessee. Various decisions were cited by both parties to support their arguments.

The Tribunal analyzed the penalty order and observed that the assessee maintained necessary information for benchmarking international transactions under TNMM. The TPO requested segmental details, which the assessee partially provided, explaining the difficulty in maintaining segment-wise profitability for diamond sales. The Tribunal noted the assessee's compliance with statutory provisions and the TPO's acceptance of the TNMM benchmarking. It found no specific discrepancies in the information furnished by the assessee and upheld the Commissioner (Appeals) decision to delete the penalty.

The Tribunal concluded that the TPO had the power to independently determine ALP if the benchmarking was inadequate, making the penalty imposition baseless. It dismissed the Revenue's appeal, citing previous decisions supporting the deletion of penalties in similar cases. The decision relied upon by the Departmental Representative was found inapplicable to the present case. The Tribunal upheld the Commissioner (Appeals) order and dismissed the Revenue's appeal.

In summary, the Tribunal upheld the deletion of the penalty under section 271G, emphasizing the assessee's compliance with maintaining necessary information for ALP determination and the TPO's acceptance of the benchmarking methodology used by the assessee. The Tribunal found no grounds for penalty imposition based on the provided evidence and statutory provisions.