2019 (6) TMI 280

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....rder dated 28.02.2018 has erred in passing that order in contravention of the provisions of S. 250(6) of the Income Tax Act, 1961. 2. That on facts, circumstances of the case and in law, the Worthy CIT(A) has erred in confirming the action of Ld. AO in wrongly imposing penalty of Rs. 1,00,000/- on account of non uploading/filing of Form 3CEB electronically ignoring the fact that all TP records had been found to be maintained and were also filed before the Ld. TPO. 3. That on facts, circumstances of the case and in law, the Worthy CIT(A) has erred in confirming the action of Ld. AO in imposing penalty of Rs. 1,00,000/- on account of non uploading of Form 3CEB electronically ignoring the justified plea of the appellant that ....

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....rst year in which such a requirement was to be complied with by the assessee who being ignorant and having no intention to flout the provisions did not upload it. The mistake was bonafide as the Report was promptly made available in the assessment proceedings itself, it is seen was not avoided and the TPO after due consideration of the same has not noticed anything adverse in the transactions with its sister concern thereby proposing no additions by way of adjustments. In these peculiar facts, it was his submission that penalty order may be quashed. Reliance was placed upon the following decisions : 1. Decision of the Madras High Court in the case of P. Senthil Kumar V Pr. CIT (TCA No. 604 of 2018 ) 2. Decision of ITAT Del....

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....s: Penalty for failure to furnish report under section 92E. "271BA-If any person fails to furnish a report from an accountant as required by section 92E, the Assessing Officer may direct that such person shall pay, by way of penalty, a sum of one hundred thousand rupees." (emphasis provided) 4.2. A perusal of the above provision shows that the law makers have used the words "may" and not "shall", thereby making their intentions clear in as much that levy of penalty is discretionary and not automatic. The said conclusion is further justified by Section 273B of the Income Tax Act, 1961. A careful reading of Section 273B encompasses that certain penalties "shall" not be imposed in cases where reasonable cause is s....