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TMI Blog2019 (6) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... ransactions. Law makers have used the words may and not shall , thereby making their intentions clear in as much that levy of penalty is discretionary and not automatic. The said conclusion is further justified by Section 273B of the Income Tax Act, 1961. We find that nothing has been placed before us to show that either the assessee is a habitual defaulter or that no explanation has been offered or for that matter, the explanation offered is false. No plausible reasons have been given by the Revenue why the explanation offered cannot be accepted. It is seen that the ld. CIT(A) has proceeded as though the levy of penalty is automatic. In the facts of the present case, we find that admittedly the assessee has failed to upload electronically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of the appellant that the same had been prepared in paper mode within the proper time but due to ignorance/oversight, uploading in the e-portal was delayed. 4. That on facts, circumstances of the case and in law, the Worthy CIT(A) has erred in confirming the action of Ld. AO in imposing penalty of ₹ 1,00,000/- on account of non uploading of Form 3CEB electronically ignoring the justified plea of the appellant that the transfer pricing provisions had been properly complied with and there were no additions made by TPO in regards to it and hence, no revenue loss has been affected. 5. That the appellant craves leave for any ad, deletion or amendment in the grounds of appeal on or before the disposal of the same. 2. The ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT Delhi Benches in ITA No. 1401/Del/2016 dated 14.02.2019 in the case of ACIT Vs BSCC & C JN, New Delhi 3. Decision of ITAT Jodhpur Bench in ITA 149/Jodh/2018 dated 25.05.2018 in the case of Shri Varun Goyal V ACIT, Bikaner 4. Decision of ITAT Mumbai Benches in ITA No. 4177/Mum/2012 dated 24.07.2013 in the case of IL & FS Maritime, Mumbai. 3. The ld. Sr.DR relied upon the impugned order. 4. We have heard the rival submissions and perused the material available on record. In the facts of the present case, admittedly the assessee failed to upload Form No. 3CEB in terms of the statutory requirement. The Statute requires in terms of Section 92E that the report from an Accountant be filed in regard to the international transactions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en that penalty imposable u/s 271BA is included therein. By the said provision, the law makers have unambiguously made it clear that no penalty "shall be" imposed if the assessee "proves that there was a reasonable cause for the said failure". As noticed, the statutory provision shows that the word "shall" has not been used in Section 271BA as then the imposition of penalty would have been mandatory. Section 273B as noted further throws light on the legislative intent as it specifically provides that no penalty "shall" be imposed if the assessee proves "that there was reasonable cause for the said failure". In the facts of the present case, it is seen that the consistent explanation of the assessee has been ignored. The assessee has pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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