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TMI Blog2014 (5) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... sent appeal. He submitted that against the order of CIT(A), the Assessee should have filed appeal before Hon. Tribunal on or before 28.12.2009 but the same was filed on 28.01.2010 thereby causing a delay of 31 days. The Assessee has filed a petition for condoning the delay and also filed a sworn affidavit of the Director of the Assessee wherein the reasons for delay has been stated and has also prayed for condoning the delay. The ld. D.R. objected to the condonation petition. 4. We have heard the rival submissions and perused the material on record. On perusing the affidavit of the Director of the Assessee, we find that there was reasonable cause in the filing of the present appeal. We therefore condone the delay and admit the appeal. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simply purchasing and export of goods and it also covered sales promotion etc. He was of the view that all operations starting from procuring orders from where the customers getting medicine manufactured in India as per requirement, exporting outside India, sales realization and the commission payments to the agents are performed by the Indian Branch only and therefore the entire activities relating to the business of the Assessee was done from the Indian Branch. The Assessee was asked to submit the Profit and Loss account and the Balance Sheet of the Assessee as a whole. Assessee however only submitted the Profit and Loss account and the Balance Sheet of Indian Branch only. On perusing the accounts, A.O noticed that Assessee had entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04-05 in ITA No. 2246/AHD/2008, dated 06.12.2013 has directed to apply the flat the net profit rate of 1.25% by holding as under:- "6. The learned DR submitted that sufficient opportunity was given to the assessee before applying the profit rate of 4.7% on the basis of data gathered from prowess database, but the assessee had not availed the opportunity, and therefore, the Revenue has justified in applying the profit rate of 4.7% to the case of the assessee, He referred to the relevant portions of the assessment order in support of the case of the Revenue. He relied on the decision of the Bangalore Bench of the Tribunal in Aztec Software & Technology Services Ltd., 107 ITD 141 (Bang). The learned counsel for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and circumstances of the case including the data gathered from Prowess database by the Revenue, and the past history of the assessee itself, wherein the loss was accepted in A.Y.2002-2003 and 2003-2004 and net profit of 1% in the same export business was applied for A.Y. 2001-2002 by the Department, we hold that it shall be reasonable to apply flat net profit rate of 1.25% on the gross receipts of the assessee as against the profit rate of 4,7% applied by the AO, and the AO is directed to determine the taxable income accordingly, and the ground no.2 of the Revenue is partly allowed." 10. Since the facts of the case in the year under appeal are identical to that of earlier year as admitted by both the parties before us, we respectf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 271G of the Act and therefore the Assessee was liable for penalty. He accordingly levied penalty of Rs. 13,22,250/- vide order dated 13.03.2009. Aggrieved by the aforesaid order of A.O., Assessee carried the matter before CIT(A). CIT(A) confirmed the order of A.O. Aggrieved by the aforesaid order of CIT(A), Assessee is now in appeal before us. 13. Though the Assessee has raised various grounds, the only effective ground is with respect to levy of penalty under section 271G. 14. Before us, the ld. A.R. submitted that Assessee had set up a branch in India and the operations of the company was confined to purchase of goods in India for the purpose of export. Assessee was of the view that as per the provisions of Section 9(1)(i) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of the Assessee submitted the Assessee in connection with the condonation of delay, it is seen that the Branch operations of the Assessee closed down in the month of December 2006 and no further business activities have stated to have taken place in the Branch. We also find that during the course of assessment proceedings, Assessee had submitted that it was not liable to tax in view of the provisions of section 9 of the Act and since it was not liable to tax it was also not required to maintain the documents required for Transfer Pricing. These submissions made by the Assessee appears to be bona-fide more so when the same has not been controverted by Revenue by bringing any contrary material on record. Section 273 B of the Act states t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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