2024 (12) TMI 456

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...., date of order 27.02.2024. The impugned order was emanated from the order of the ld. Deputy Commissioner of Income-tax (Transfer Pricing)-3(1)(1), Mumbai(in short, 'the A.O.') passed under section 271G of the Act date of order 29/07/2016. 2. The revenue has taken the following grounds: - "1. Whether on facts a circumstances of case a in law, the Ld. CIT(A) was correct in deleting the penalty levied u/s. 271G by holding that the assessee had made substantial compliance, failing to note that under TNMM adopted by the assessee, the profit including segmental account of the international transaction has to be furnished as asked for where' as the asseesee has only furnished the entity level margins in spite of having been given the ....

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....n deserving cases under other sections of the Act. 5. Whether on facts & circumstances of case & in law, the Ld. CIT(A) erred in deleting the penalty for the reason that no adjustment was made to the ALP, falling to note that by not producing the material documents necessary to determine the ALP under any of the prescribed methods u/s. 92C(1), the assessee effectively and deviously prevented the TPO to made Arm's length determination as recorded by the TP0 in para 6 of the order u/s. 92CA(3). 6. Whether on facts & circumstances of case & in law, the ld. CIT(A) failed to appreciate, the judicial precedents in case of Shatrunjay Diamonds (261 ITR 258; 2003} in which it is stated ty Hon'ble Bombay High Court that the excu....

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....considered the documents available in the record. For understanding the fact, we make a quick look in section 92D(3) of the Act. "Maintenance, keeping and furnishing of information and document by certain persons. 92D. (1) Every person, - xxxxxxxxxxxx (2) xxxxxxxxxxx (3) The Assessing Officer or the Commissioner (Appeals) may, in the course of any proceeding under this Act, require any person referred to in clause (i) of sub-section (1) to furnish 64 any information or document referred therein, within a period of 64 a[ten] 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, ....

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....fore, the facts and circumstances of levy of penalty u/s. 271G for A.Y.2011-12 being identical to that for AY.2012-13, the penalty levied u/s. 271G for A.Y 2012-13 should also be deleted. The appellant provided copies of orders of CIT(A) and ITAT for AY. 2011-12. 5.3.4 The order of the CIT(A) against the order of levy of penalty u/s.271G for AY. 2011- 12 and also the order of ITAT Mumbai for AY. 2011-12 in the case of the appellant has been perused. For ready reference, the order of the ITAT Mumbai in ITA No.2643/Mum/2017 for AY.2011-12 is reproduced as under: "6. We have considered rival contentions and carefully gone through the orders of the authorities below and found that the CIT(A) has deleted the penalty by observin....