2019 (3) TMI 690 - AT - Income Tax

Tribunal Upholds Deletion of Penalty for Non-Compliance in Diamond Industry

DCIT – 14 (2) (1), Mumbai Versus M/s. Leo Schachter Diamonds India Pvt. Ltd.

The Tribunal upheld the CIT(A)'s decision to delete the penalty under Section 271G of the Income Tax Act, 1961, emphasizing the practical difficulties in ... Penalty levied u/s 271G - assessee had not furnished the workings of AE and Non-AE segmental profitability as called for by him and accordingly, concluded that the relevant records in terms of Clause (g) and (h) of Rule 10D(1) was not maintained by the assessee - HELD THAT:- In the similar facts and circumstances, the Co-ordinate Bench of this Tribunal in assessee’s own case for the A.Yrs 2010-11 and 2012-13 had held that since there was no TP adjustment, there cannot be any levy of penalty u/s.271G of the Act. We also find that assessee had duly replied before the TPO in respect of queries raised by the TPO. TPO had accepted the stand of the assessee for A.Yrs. 2010-11 and 2012-13 also vide its order u/s.92CA(3) dated 31/12/2015, 25/01/2016 respectively wherein no penalty proceedings u/s.271G of the Act were initiated. This goes to prove that the Ld. TPO had understood the practical difficulty of the assessee before us and has decided not to initiate penalty u/s.271G of the Act. CIT(A) had placed reliance on the decision of the Jaipur Tribunal in the case of ACIT vs. Gillette India Ltd [2015 (1) TMI 918 - ITAT JAIPUR] which is also applicable to the facts of the instant case. In view of the aforesaid observations and respectfully following the aforesaid judicial precedents, we do not find any infirmity in the order of Ld. CIT(A) deleting the penalty u/s.271G of the Act in the peculiar facts and circumstances of the instant case before us. We would like to make it clear that the said decision shall not stand as a precedent for other cases. Accordingly, the grounds raised by Revenue are dismissed. Issues Involved:1. Justification of deletion of penalty levied under Section 271G of the Income Tax Act, 1961.Detailed Analysis:1. Justification of Deletion of Penalty under Section 271G:The core issue in this appeal is whether the Commissioner of Income Tax (Appeals) [CIT(A)] was justified in deleting the penalty levied under Section 271G of the Income Tax Act, 1961. The penalty was initially imposed due to the assessee's failure to maintain and furnish documentation as required under Rule 10D(1) (g) and (h) read with Section 92D(3) of the Act.Facts and Circumstances:The assessee, engaged in the business of manufacturing and exporting cut and polished diamonds, was subjected to scrutiny and a reference was made to the Transfer Pricing Officer (TPO) to determine the arm’s length price (ALP) of transactions with its Associated Enterprises (AEs). Despite submitting the audit report in Form 3ECB and other required documents, the TPO observed that the assessee did not provide segmental profitability details for AE and non-AE transactions, which hindered the examination of the ALP's correctness.Assessee's Defense:The assessee contended that it was impractical to bifurcate stock, cost, and revenue between AE and non-AE segments due to the unique nature of diamonds, which vary significantly in terms of cut, clarity, color, and carat. The assessee argued that it had provided segmental results using revenues as the allocation key, which the TPO overlooked. The assessee relied on judicial precedents, including the Delhi ITAT's decision in Cargill India (P) Ltd, which highlighted that not all clauses of Rule 10D(1) apply in every case and that practical difficulties should be considered.Revenue's Argument:The Revenue argued that the assessee failed to submit essential data for determining segmental profitability, which was crucial for benchmarking international transactions. The Revenue emphasized that the TPO had no option but to accept the transactions at arm’s length due to the lack of detailed information.Tribunal's Findings:The Tribunal noted that in similar cases for the assessment years 2010-11 and 2012-13, no penalty under Section 271G was levied as there were no transfer pricing adjustments. The Tribunal found that the assessee had provided the required details to the TPO, which were accepted in previous years without initiating penalty proceedings. The Tribunal also referred to the decision in DCIT vs. Firestone International Pvt. Ltd., where it was held that substantial compliance with documentation requirements and practical difficulties in the diamond industry justified the deletion of penalty.Conclusion:The Tribunal upheld the CIT(A)'s decision to delete the penalty, recognizing the practical difficulties in maintaining segmental profitability details in the diamond industry. The Tribunal emphasized that the assessee had substantially complied with the TPO's requirements and that the peculiar nature of the diamond trade made it impractical to furnish the exact details as demanded. The Tribunal's decision was based on the principle that the law does not compel a person to do the impossible, aligning with the maxim 'maxim lex non cogit ad impossibila.'Final Judgment:The appeal of the Revenue was dismissed, and the deletion of the penalty under Section 271G by the CIT(A) was upheld. The Tribunal's decision was not intended to set a precedent for other cases, emphasizing the unique facts and circumstances of the case.