2021 (5) TMI 100 - AT - Income Tax

Tribunal vacates CIT(A) order, directs detailed compliance order, allows Revenue appeal

The Tribunal vacated the CIT(A)'s order and remitted the matter back for a proper speaking order. The CIT(A) was directed to pass a detailed order ... Penalty u/s 271G - under TNMM adopted by the assessee, the profit of the international transaction has to be furnished, whereas the assessee has only furnished the entity level margins which consists of overall profits on AE and significant non non-AE transactions - reasonable cause for non-compliance of Section 92D read with Rule 10D(1) without specifying the cause of such non-compliance or demonstrating how the same was reasonable - CIT(A) deleted the penalty levied u/s. 271G by holding that the assessee had made substantial compliance - HELD THAT:- Upon careful consideration, we find that learned CIT(A) has failed to discharge the duty cast upon him. He is passing a quasi judicial order. It was incumbent upon him to pass a proper speaking order while deleting a huge penalty of ₹ 6.63 crores levied by the Assessing Officer which is a detailed order and also relies upon SHATRUNJAY DIAMONDS. [2003 (1) TMI 62 - BOMBAY HIGH COURT] . It is settled law that rules of natural justice are applicable to even administrative order and they are applicable to both the parties in a dispute. On this plank itself the order of learned CIT(A) is not sustainable. Moreover the issue of case laws will arise after learned CIT(A) duly deals with facts and issues, which he has failed to do. In this connection we refer to the decision of Hon'ble Supreme Court in the case of Kapurchand Shrimal [1981 (8) TMI 2 - SUPREME COURT] wherein held that it is the duty of the appellate authority to correct the error in the order of the authorities below and remit the matter with or without direction unless probable by law. Hence in the interest of justice, we vacate the order of learned CIT(A) and set aside the issue to the learned CIT(A). CIT(A) shall pass a proper and speaking order after giving the assessee proper opportunity of being heard. Assessee is at liberty to canvas the issue at it deems fit - Appeal by the Revenue stand allowed for statistical purpose. Issues Involved:1. Deletion of penalty levied under Section 271G of the Income Tax Act.2. Compliance with Rule 10D(1) clauses (d), (g), (h), and (m).3. Reasonable cause for non-compliance with Section 92D and Rule 10D(1).4. Initial burden of proof on the assessee as per the Shatrunjay Diamonds case.5. Non-production of material documents necessary for determining the Arm's Length Price (ALP).Issue-wise Detailed Analysis:1. Deletion of Penalty Levied under Section 271G:The Revenue challenged the deletion of the penalty levied under Section 271G, arguing that the learned CIT(A) erred in holding that the assessee had made substantial compliance. The Revenue contended that the assessee only furnished entity-level margins, which included overall profits from both AE and non-AE transactions, rather than the profit of the international transaction itself. The Tribunal found that the CIT(A) had passed a non-speaking order and failed to address the detailed findings of the Assessing Officer (AO). Therefore, the Tribunal vacated the CIT(A)'s order and remitted the matter back for a proper speaking order.2. Compliance with Rule 10D(1) Clauses (d), (g), (h), and (m):The AO noted that the assessee failed to comply with clauses (d), (g), (h), and (m) of Rule 10D(1). Specifically, the assessee did not maintain proper documentation to apply the TNMM, CUP, or any other prescribed methods. The AO emphasized that segmental results for AE and non-AE transactions were essential for correct benchmarking, which the assessee failed to provide. The Tribunal observed that the CIT(A) did not address these specific compliance issues in its order, necessitating a remand for a detailed examination.3. Reasonable Cause for Non-compliance with Section 92D and Rule 10D(1):The AO contended that the CIT(A) erred in holding that there was a reasonable cause for non-compliance without specifying the cause or demonstrating its reasonableness. The AO had found that the assessee did not maintain separate profitability records for AE and non-AE transactions, making it impossible to apply the prescribed methods for determining ALP. The Tribunal noted that the CIT(A) did not provide a detailed reasoning for accepting the assessee's explanation, thereby requiring a remand for a proper assessment.4. Initial Burden of Proof on the Assessee as per the Shatrunjay Diamonds Case:The Revenue argued that the CIT(A) ignored the ratio laid down in the Shatrunjay Diamonds case, which places the initial burden of proof on the assessee. The AO had relied on this precedent to assert that the assessee failed to meet its burden of proof by not providing the necessary documentation. The Tribunal found that the CIT(A) did not consider this legal precedent in its order, warranting a remand for reconsideration.5. Non-production of Material Documents Necessary for Determining ALP:The AO held that the assessee's failure to produce material documents necessary to determine the ALP under any prescribed method effectively prevented the TPO from making any determination. The AO noted that the assessee did not provide segmental profitability details or comparable third-party transactions, which are crucial for benchmarking. The Tribunal observed that the CIT(A) did not address this critical issue, leading to the remand for a detailed examination.Conclusion:The Tribunal vacated the order of the learned CIT(A) and remitted the matter back for a proper and speaking order. The CIT(A) was directed to pass a detailed order addressing the specific issues raised by the AO and providing the assessee with an opportunity to be heard. The appeal by the Revenue was allowed for statistical purposes.