AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 200
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....raised:- "1. On the facts and the circumstances of the case and in law the Ld.CIT(A) erred in deleting the penalty u/s. 271(1)(c) of the Act on Rs. 1,72,53,390/-, addition of which was made by the AO as per the order of the TPO which relates to import of plate and therefore the assessee had furnished inaccurate particulars of its income and concealed the same. 2. On the facts and the circumstances of the case the Ld.CIT(A) erred in deleting the penalty u/s. 271(1)(c) of the Act holding that RPM method was not applicable ignoring the fact that the TPO after scientifically evaluating all the options held that this is the just & fair method. Further erred in adopting the CUP method of the assessee ignoring the findings of the TPO & the AO. ....
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....tion does not stand. While doing so, the Tribunal has followed the earlier year order of the Tribunal for the AY 2004-05. 4. Ld. DR also admitted that this issue has been set aside to the file of the TPO. 5. After considering the aforesaid submissions, we find that, so far as the levy of penalty on account of TP adjustment of Rs. 1,72,53,390/- in respect of purchases of plates from AE, we find that the Tribunal has set aside this issue to the file of the TPO for fresh adjudication as per the directions given by the Tribunal in the quantum proceedings in the AY 2004-05. Thus, when the entire matter has been set aside and remanded back for fresh adjudication, the penalty levied on the basis of impugned assessment order cannot be sustained, ....
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....serve that the impugned disallowance, as sought to be abundantly clarified per the assessment order, is not u/s. 40(a)(ia). Rather, we find no adjustment to the returned income of Rs. 702.89 lacs in respect of the said claim; a fact which the A.O. seeks to emphasize. The assessee's grievance is, thus, misconceived. As apparent from the assessment order, the disallowance u/s. 40(a), as initially proposed by the A.O., was u/s. 37(1), i.e., in the absence of the requisite details, and only alternatively, i.e., without prejudice, u/s. 40(a)(ia) (refer paras 8.1 and 8.2 of the assessment order). Even before us the assessee, apart from a debit note, which is not legible at all (PB pg. 168), could hardly furnish any material or evidence with r....
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.... before the authorities below has been that, it has been receiving technical support from the AE on the regular basis and the Auditors in the Audit Report have taken a note of this fact in Form 3CEB, which on the basis of relevant data provided. Since there was a merger with Kotak India Pvt. Ltd w.e.f. 01.04.2008 under the orders of Bombay High court on 4th July, 2008 many of the employees had left the job post merger, therefore, the assessee could not produce the necessary documents except for the 'debit note' raised by the AE. It was further contented by the ld. Counsel before us that the entire transaction has been benchmarked using TNMM as MAM and assessee has deducted TDS on the entire payment @ 15.7% made to the AE, the detail of whic....
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....hering to the proper procedure of law laid down under the Act and relevant rules. It is further noticed that, no penalty was levied in the case of the assessee for non-furnishing of the information and documents as required under section 92D(3), for which separate penal provision under section 271G have been prescribed. Thus on these facts and circumstances, prima facie we are of the opinion that no case can be made for the levy of penalty u/s 271(1)(c). Accordingly, we hold that penalty levied by the AO under section 271(1) (c) cannot be legally and factually sustained and therefore, the deletion of penalty by the Ld. CIT(A) is affirmed. The relevant observation and finding of ld. CIT(A) which reads as under:- "Under facts and circumstanc....