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TMI Blog2016 (4) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty u/s 271G of the Act of ₹ 28500100/- levied by ld AO vide order dated 25th March 2013. 2. The assessee has raised the following grounds of appeal:- 1. That the order passed by learned CIT(Appeal) confirming penalty of ₹ 28500100/-imposed by the assessing officer under Section 271G of the Income Tax Act, 1961 is bad in law. 2. That the learned CIT(Appeals) erred on facts and in law in upholding penalty imposed by the assessing officer under Section 271G of the Income Tax Act, 1961. 3. On the facts and circumstances of the case and in law, the penalty of ₹ 28500100/-levied by the assessing officer u/s 271G is erroneous and the CIT(A) should have cancelled the same. 4. On the facts and circumstances of the case and in law, the penalty imposed by the assessing officer u/s 271G of Income Tax Act, 1961 and confirmed by CIT(A) is without jurisdiction and bad-in-law and, therefore, the penalty imposed is liable to be cancelled. 3. The brief facts of the case is that the assesse is a private limited company filed its return of income on 30th September 2009 declaring total income of ₹ 5,09,20,284/-. The case of the assessee was refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld CIT(A) for non timely furnishing of the same. Therefore it was submitted that there is no violation of any of the provisions of section 92D or Rule 10D. ii. That in the order u/s 92CA (3) the ld. TPO has emphatically mentioned that transfer pricing documentation containing functional and economic analysis prescribed under Rule 10D of the Income Tax Rules was submitted and placed on the record. Therefore these observation of the ld. TPO clearly shows that assesse has complied so far as submission of details is concerned with the utmost satisfaction of ld. TPO. Further no adjustment in the determination of ALP also supports the view of the assessee. iii. that in AY 2005-06 on similar facts and circumstances and having similar transactions no penalty u/s 271G was initiated or levied. iv. As the complete details were provided by the assesse merely non furnishing of the TP Study report is a technical breach and for this penalty may not be levied. This fact has also been mentioned by ld CIT(A) that it is a technical penalty. v. That the words used in section 271G is may and not shall and therefore there is no justification in the levy of penalty as it is not an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PO issued letter dated 25.10.2011 asking various information most of which are referred in Rule 10D(1). In response to this assessee submitted some information vide letter25.11.2011 and some information explanation vide letter 30.12.2011. balance information were also provided by letter dated 16th January 2012. During the course of assessment proceedings assessee also submitted a TP study report prepared by its Chartered Accountant M/s. Awdesh Bansal and Co.copy of which is also placed in the Paper Book at Sl. No.50 to 99. In view of this it is apparent that assessee submitted some details within the period of 30 days and some details withinperiod of 60 days . Undisputedly all the details relevant to TP assessment were provided before completion of order u/s 92CA(3) by the ld. TPO. In the order of the ld. TPO we did not find that for which documentation the ld. TPO is proposing penalty u/s 271G of the Act. It is also pertinent to note that after examination of all details the international entered into by the assessee are found to be at Arm s length by ld. TPO.But the penalty is being levied on the assessee on account of non-furnishing of TP Study Report in time. On reading of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , shows lack of application of mind. Transfer Pricing Officer had indicated that the Assessing Officer might initiate proceedings under Section 271G but he also did not refer to date of notice, date of furnishing of information/documents etc. There was no mandate or affirmative direction that penalty shall be imposed by the Assessing Officer, as has been observed in the first part at the penalty order. 9. Similarly in the case of the Assessee there is no specific finding about by which date Assessee was required to furnish the information and whether such documents are furnished or not and whether any extension of time was granted by TPO or not. Identically this information is also not in the order of ld. TPO or AO. Similarly Hon ble Delhi High court in case of CIT Vs. Leroy Somer and Controls India pvt. Ltd. 37 Taxmann.com 407 has held that where there is general and substantive compliance of the provisions of Rule 10D it is sufficient. Identically in the case of the Assessee there is a substantial compliance. Honorable high court has further held that Thus, indicating the documentation/information may be floating, transient and changeable. Constant assimilation may be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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