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TMI Blog2022 (3) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... and amendments in the provision. Further this being the first year of this new provision it could not upload the same electronically which is neither willful nor wanton. The assessee has further pleaded that based on the report, no adjustments have been proposed by the TPO. Copy of the assessment order dated 02.12.2016 passed u/s. 143[3] r.w.s. 92CA(3) clearly shows that there were no adjustment made by the TPO and the AO accepted the returned income as the Assessed Income. Thus there is no mala fide is found in the above transaction, but only a bond fide mistake of new amended provision is not followed by the assessee. It is further seen that both the lower authorities has proceeded as though the levy of penalty u/s. 271BA as automatic, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(3) read with section 92CA(3) of the Act was passed on 2.12.2016. During the financial year, the assessee firm had entered into an international transaction amounted to ₹ 5,09,26,331/-. As per section 92E of the Act, the assessee is required to get its books of Accounts audited and furnish a report in Form No. 3CEB. Failure to file report under section 92E will attract levy of penalty under section 271BA of the Act. The assessee's case was referred to TPO under section 92CA(1) of the Act. The Ld. TPO vide his order dated 31.8.2016 passed under section 92CA(3), and has not made any adjustment to the arm's length price of the transaction entered into by the assessee. It is also noted that the assessee has not furnished repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, was required to file the report u/s. 92E read with Rule 10E in respect of specified domestic transaction before the specified date i.e. the due date for filing of the return. Since the assessee has not filed a report in Form 3CEB before the due date of filing of the return, penalty u/s. 271BA is leviable. It is observed that there was no plausible reason put forth by taxpayer to establish, how it was prevented from preparing and filing the audit report in Form 3CEB. Thus, the failure on the part of the taxpayer to furnish the Audit Report in Form 3CEB within the prescribed period, without reasonable cause, is a clear violation of the provisions of Section 92E of the Act. Accordingly. The Ld. CIT(A) confirmed action of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act of ₹ 1,00,000/- was levied on the assessee, and the Ld. CIT(A) also confirmed that such report have been furnished during the assessment proceedings by the assessee, and thereby confirmed the levy of penalty. This factual matter does not require any interference, and thereby pleaded to confirm the levy of penalty. 7. We have given out thoughtful consideration on the issue of levy of penalty under section 271BA of the Act and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaded. It is seen that penalty imposable u/s. 271BA is also included therein. By the said provisions, the Parliament has 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, if the statutory provision shows that the word shall has been used in Section 271BA, 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 . 7.3. In the facts of the present case, it is seen that the consistent explanation of the assessee has been ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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