9911796707
TMI Blog2025 (3) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 92D of Income-tax Act, 1961?". 2) The Appellant prays that the order of the CIT(A) be set aside on the above grounds) and the order of the Assessing Officer restored." 3. The solitary grievance of the Revenue is against the deletion of penalty under section 271G of the Act. 4. The brief facts of the case pertaining to this issue as emanating from the record are: The assessee is a non-resident company and is a tax resident of Germany. For the year under consideration, the assessee filed its return of income on 30.09.2008, declaring a total income of Rs. 84,78,66,807/-. Subsequently, the assessee filed its revised return of income on 31.03.2010, declaring a total income of Rs. 109,33,71,431/-. The return filed by the assessee was selected for scrutiny and statutory notices under section 143(2) and section 142(1) of the Act were issued and served on the assessee. During the assessment proceedings, the Assessing Officer ("AO") made a reference under section 92CA(1) of the Act to the Transfer Pricing Officer ("TPO") for determination of Arms' Length Price of International Transactions entered into by the assessee. In Form No.3CEB, the assessee reported the following internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich it has earned income from India. The other transactions with the Associated Transactions in India were not declared as there was no income element. The TPO, vide order dated 31.10.2011 passed under section 92CA(3) of the Act, disagreed with the submissions of the assessee, and held that only the transactions where the assessee has received income need to be declared is not acceptable. On the basis that the assessee has failed to furnish evidence and has also failed to prove the transactions are at Arms' Length Price, the TPO by adopting rate of 10% of the amount declared to be the Arms' Length Price value, made an adjustment of Rs. 8,11,80,479/-. 9. In the meanwhile, penalty proceedings under section 271G of the Act were initiated on the basis that the assessee has not furnished the information or documentation as required under section 92D(3) of the Act in respect of the international transaction not reported by the assessee. Vide order dated 30.04.2013 passed under section 271G of the Act, the AO held that the assessee has committed default in not furnishing the documents and information pertaining to all the international transactions entered into by the assessee as envisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions, it is evident that the penalty is leviable under section 271G of the Act if the assessee fails to furnish any information or documents as required under section 92D(3), in respect of international transaction entered into by the assessee. Further, Section 92D reads as follows: - "92D. (1) Every person who has entered into an international transaction shall keep and maintain such information and document in respect thereof, as may be prescribed. (2) Without prejudice to the provisions contained in sub-section (1), the Board may prescribe the period for which the information and document shall be kept and maintained under that sub-section. (3) The Assessing Officer or the Commissioner (Appeals) may, in the course of any proceeding under this Act, require any person who has entered into an international transaction to furnish any information or document in respect thereof, as may be prescribed under sub-section (1), within a period of thirty days from the date of receipt of a notice issued in this regard: Provided that the Assessing Officer or the Commissioner (Appeals) may, on an application made by such person, extend the period of thirty days by a further period no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and until a specific defect is pointed out in the documents submitted by the assessee under section 92D, penalty under section 271G of the Act cannot be levied. The relevant findings of the Coordinate Bench in the aforesaid decision are reproduced as follows: - "8. We have heard rival contentions and gone through the facts and circumstances of the case. From the above, we noted that the main allegation of the revenue is that of non-furnishing of audited AE and non AE segmental as well as documents regarding choice of foreign entity as tested party. We also noted that any other reason for levy of penalty is for non-furnishing of audited manufacturing and distribution of segmental accounts. Further, reason for levy of penalty is non-furnishing of documents on applicability of TNMM as per Rule 10D. We noted from the arguments of the learned Counsel for the assessee as noted above in detail and the details submission made by the assessee is to support its transfer pricing study report and international transaction entered into with its AE that the assessee has completely complied with Rule 10D(i) of the Rules. We noted that from the letter issued by revenue dated 07.09.2015 i.e. noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared by an assessee, record of uncontrolled transactions for realising their comparability with international transactions including record of nature, terms and conditions relating to uncontrolled transactions with third parties, record of analysis performed to evaluate comparability of uncontrolled transactions. These are general clauses relating to data, details etc. of third parties etc. These details, data, information etc. can be voluminous, fluctuating and otherwise capacious. 12. Sub-rule (3) to Rule 10D states that information specified in Rule 1 shall be supported by authentic documents, which may include the documents mentioned in sub-clauses (a) to (g). These include official publication report, status and data bases of Government of countries of residents of associated enterprises or other countries, market research studies, price publications including stock exchange and commodity market quotations, agreement contracts with unrelated enterprises etc. The word used in sub-section (3) to Rule 10D is "may". 13. It is clear from the reading of Section 10D (sic) that it will include almost anything and everything relating to international transactions, including da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: - "8. Copy of the notice dated 23.03.2011 issued by the Assessing Officer has not been filed on record by the Revenue along with the present grounds of appeal. We do not know what was requisitioned and asked for by the said notice and which/what documents and details were supplied. We also do not know whether any extension of time was prayed for or granted by the Transfer Pricing Officer and whether any hearing was fixed by the Transfer Pricing Officer pursuant to notice dated 12.03.2007. It appears that the Transfer Pricing Officer had asked for specific details and documents vide letter dated 12.06.2008 and these details were fully complied with on 25.06.2008 and 23.07.2008. Compliance of the letter dated 12.06.2008 was made within period of 30 days on 25.06.2008 and then subsequently on 23.07.2008. The date 23.07.2008 is within 60 days of issue of notice/letter dated 12.06.2008. We do not know the documents filed on 25.06.2008 and which documents or details were subsequently filed on 23.07.2008. There is no discussion on the said aspect in the order passed by the Assessing Officer, imposing penalty. In these circumstances, we do not find any merit in the present appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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