Appeal details
Counselvise Citation
[2019] 118 COUNSELVISE.COM (IT) 4486 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 11 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
14-02-2019
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
H
Assessment Year
2011-2012
Appeal Filed On
14-03-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: B , NEW DELHI BEFORE SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER AND SMT. BEENA A PILLAI, JUDICIAL MEMBER ITA NO. 1401 /DEL/201 6 AY: 2011 - 12 . ACIT, CIRCLE 62(1) ROOM NO.2202, 22 ND FLOOR CIVIC CENTRE MINTO ROAD NEW DELHI 110 002 VS . BSC C & C JN 74, HEMKUNT COLONY NEW DELHI 110 048 PAN: AADFB8115G (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. MITHUN SHETE, SR. D.R. ASSESSEE BY : : SH.ROHIT JAIN, ADV. DEEPASHREE RAO, C.A. VIBHU GUPTA, C.A. DATE OF HEARING : 11/02/2019 DATE OF PRONOUNCEMENT : 14 /02/2019 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER P RESENT PENALTY APPEAL HAS BEEN FILED BY REVENUE AGAINST ORDER DATED 27/01/2016 PASSED BY LD. CIT ( A ) - 20, NEW DELHI FOR A.Y. 2011 - 12, ON FOLLOWING GROUNDS OF APPEAL: I. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) HAS ERRED IN DELETING THE PENALTY U/S 271AA OF THE INCOME TAX ACT, 1961 OF RS.20,94,321/ - . II. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR MODIFY GROUNDS OF APPEAL AT ANY TIME. RELIEF CLAIMED IN APPEAL : AS PER GROUNDS OF APPE AL AND THE ORDER PASSED BY LD.CIT(A) - XX, NEW DELHI BE QUASHED. ITA NO.1401/DEL/2016 A.Y. 2011 - 12 ACIT VS. BSC C&C JV 2 2. BRIEF FACTS OF CASE ARE AS UNDER: I T HAS BEEN SUBMITTED THAT ASSESSEE IS A JOINT VENTURE BETWEEN M/S. B.SEENAIAH & CO. PROJECTS LTD., A ND M/S. C&C C ONSTRUCTIONS PVT. LTD. FOR YEAR UNDER CONSIDERATION. ASSESSEE FILED ITS RETURN OF INCOME ON 29/09/2011 , DECLARING TOTAL INCOME OF 136,53,34,780/ - . VIDE ORDER DATED 31/03/2014 LD.AO PAS SED ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (THE A CT ) AND ASSESSEES INCOME WAS ASSESS ED AT RETURNED INCOME FILED. 2.1. THEREAFTER VIDE ORDER DATED 29/09/2014 LD. A.O. LEVIED PENALTY OF 20,94,321/ - UNDER SECTION 271AA OF THE A CT , ON THE GROUND THAT , ASSESSEE FAILED TO MAINTAIN ADEQUATE DOCUMENTATION IN RESPECT OF INTERNATIONAL TRANSAC TION ENTERED INTO DURING YEAR UNDER CONSIDERATION. 2.3 . ON APPEAL BEFORE LD.CIT (A), PENALTY LEVIED WAS DELETED. 3. AGGRIEVED BY ORDER OF LD.CIT (A), REVENUE IS IN APPEAL BEFORE US NOW. 3.1. LD. SR.DR P LACE D RELIANCE UPON ORDER OF LD. AO AND SUBMITTED THAT UNDER R ULE 10 E ASSESSEE WAS REQUIRED TO FURNISH REPORT REGARDING INTERNATIONAL TRANSACTION ENTERED DURING YEAR IN FORM 3 CEB AND VERIFIED IN THE MANNER INDICATED. HE SUBMITTED THAT IN THE LANGUAGE OF SECTION 92 OF THE ACT, IT IS CL EAR THAT REPORT IN FORM 3 CEB IS TO BE FILED BY SPECIFIED DATE, THAT IS, DUE DATE FOR FILING OF RETURN. L D. AO WAS OF THE OPINION THAT DOCUMENTATION FILED BY ASSESSEE WAS INADEQUATE AND DID NOT SATISFY STATUTORY REQUIREMENT AS PER RULE 10 D (1) READ WITH SECTION 92D (1) OF THE A CT. HE THEREFORE RIGHTLY LEVIED PENALTY UNDER SECTION 271AA OF THE A CT . ITA NO.1401/DEL/2016 A.Y. 2011 - 12 ACIT VS. BSC C&C JV 3 3.2. O N THE CONTRARY LD.C OUNSEL REFERR ING TO PARAGRAPH 4.3.1 AND 4.3.2 OF IMPUGNED ORDER BY LD. CIT( A ) SUBMITTED THAT ASSESSEE VIDE LETTER DATED 13/03/201 4 FURNISH ED CONTEMPORANEOUS DOCUMENTS MAINTAINED IN TERMS OF SECTION 92D OF THE A CT , ALONG WITH DETAILED WRITE - UP ON SAID TRANSACTION. HE SUBMITTED THAT UPON CONSIDERATION OF THESE DOCUMENTS , LD. AO CONCLUDED ASSESSMENT UNDER SECTION 143(3) OF THE A CT AND RETURNED INCOME , ACCEPTING ARMS - LENGTH NATURE OF INTERNATIONAL TRANSACTION ENTERED INTO BY ASSESSEE WITH ITS AE DURING YEAR UNDER CONSIDERATION. HE THEREFORE SUBMITTED THAT LD.A.O.S ACTION OF LEVY OF PENALTY UNDER SECTION 271A A IS BEYOND JURISDICTION AND BAD IN LAW INSOFAR AS NO SPECIFIC DIRECTION/REFERENCE WAS MADE TO INITIATE PENALTY PROCEEDINGS UNDER SAID SECTION IN ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE A CT FOR AFORESAID TRANSACTION. IT HAS ALSO BEEN SUBMITTE D THAT INTERNATIONAL TRANSACTION ENTERED INTO BY ASSESSEE WAS CONSIDERED TO BE AT ARM S LENGTH AND NO ADJUSTMENT WAS MADE BY LD.AO AND, THERE FORE, THERE WAS NO BASIS FOR L EVYING PENALTY UNDER SECTION 271 AA OF THE A CT. 4. WE HAVE PERUSED SUBMISSIONS AD VANCED BY BOTH SIDES IN LIGHT OF RECORDS PLACED BEFORE US. 4.1 . LD.CIT(A) DELETED PENALTY BY OBSERVING AS UNDER: 4.3.1. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AND ALSO JUDICIAL CITATIONS RELIED UPON BY IT. I HAVE ALSO CONSIDERED THE ASSESSMENT ORDER. FOLLOWING FACTS HAVE EMERGED: 1. THAT THE APPELLANT HAS SHOWN INTERNATIONAL TRANSACTION DURING THE YEAR UNDER CONSIDERATION DECLARING AN INCOME OF RS.1,36,53,34,780/ - . 2. THAT THE AO HAS ACCEPTED THE RETURN INCOME IN THE ASSESSMENT OR DER PASSED U/S 143 ( 3) OF THE ACT. ITA NO.1401/DEL/2016 A.Y. 2011 - 12 ACIT VS. BSC C&C JV 4 3. THAT THE ASSESSEE HAS FILED DETAILS AS AND WHEN ASKED DURING THE ASSESSMENT PROCEEDINGS. 4. THAT THE APPELLANT HAS NOT FILED FORM 3CEB WITHIN THE PRESCRIBED TIME AND FOR THIS LAPSE PENALTY U/S 271BA WAS IMPOSED. 4.3.2. I HAVE CONSIDERED THE ABOVE MENTIONED FACTS. IN ORDER TO LEVY PENALTY U/S 271AA, FOLLOWING CONDITIONS ARE REQUIRED TO BE TAKEN INTO ACCOUNT. (A) FAILS TO KEEP AND MAINTAIN ANY INFORMATION AND DOCUMENT AS REQUIRED UNDER SUB - SECTION (1) OR (2) OF SECTION 92D OF THE ACT; OR (B) FAILS TO REPORT ANY INTERNATIONAL/SPECIFIED DOMESTIC TRANSACTION; OR (C) MAINTAINS OR FURNISHES INCORRECT INFORMATION OR DOCUMENT. IN THIS PARTICULAR CASE, THE A.O AFTER TAKING INTO ACCOUNT THE EVIDENCES AND SUBMISSIONS MADE BY THE ASSESSEE DURIN G THE ASSESSMENT PROCEEDINGS HAD ACCEPTED THE RETURNED INCOME DECLARED BY THE ASSESSEE. IT MEANS THAT THE DETAILS SUBMITTED BY THE ASSESSEE DURING ASSESSMENT PROCEEDINGS WERE FOUND SUFFICIENT AND ADEQUATE TO COMPLETE THE ASSESSMENT PROCEEDINGS AND LEAD TO ACCEPTANCE OF THE RETURNED INCOME UNDER SECTION 143(3) OF THE ACT. I HAVE ALSO TAKEN INTO ACCOUNT JUDICIAL RULINGS CITED BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS. I HAVE ALSO TAKEN INTO ACCOUNT THE FACT THAT IN THE PENALTY ORDERS PASSED BY THE AO, THERE IS NOTHING TO SUGGEST AS TO WHICH PARTICULAR INFORMATION OR DOCUMENT WAS NOT SUBMITTED BY THE ASSESSEE AND WHAT IMPACT DID IT CREATED WHICH ADVERSELY AFFECTED IN FINALISING THE ASSESSMENT PROCEEDINGS. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I DONT FIND IT A FIT CASE FOR LEVYING OF PENALTY U/S 271AA OF THE ACT. ACCORDINGLY, PENALTY LEVIED U/S 271AA IS DELETED. APPELLANTS GROUND OF APPEAL IS ALLOWED. 4.2. FROM THE ABOV E, IT IS OBSERVED THAT ASSESSEE FAILED TO FILE F ORM 3 CEB WIT HIN PRESCRIBED PERIOD , FOR WHICH LD.AO HAS SEPARATELY IMPOSED PENALTY UNDER SECTION 27 1BA . 4.3. HOWEVER , IT IS OBSERVED THAT AT TIME OF ASSESSMENT , LD. AO WAS IN POSSESSION OF THESE DOCUMENTS , BASED UPON WHICH , ASSESSMENT ORDER HAS BEEN PASSED B Y HOLDING INTERNATIONAL TRANSACTION TO BE AT ARM S LENGTH. ITA NO.1401/DEL/2016 A.Y. 2011 - 12 ACIT VS. BSC C&C JV 5 5. WE HAVE PERUSED S ECTION 271AA OF THE A CT , WHEREIN PENALTY IS LEVIABLE FOR FAILURE TO KEEP AND MAINTAIN INFORMATION AND DOCUMENTS ETC. , IN RESPECT OF INTERNATIONAL TRANSACTION OR SPECIFIED DOM ESTIC TRANSACTION. 5.1 . IN FACTS OF PRESENT CASE, IT IS OBSERVED THAT ASSESSEE HAS MAINTAINED DOCUMENTS/INFORMATION REQUIRED AS PER SECTION 92D OF THE ACT, REGARDING INTERNATIONAL TRANSACTION, MORE PARTICULARLY DESCRIBED UNDER RULE 10 D OF INCOME TAX RULES 1962, WHICH HAS BEE N FILED BEFORE THE LD. AO IN F ORM 3CEB , VIDE LETTER DATED 13/03/2014. 5.2. ADMITTEDLY , LD.AO ACCEPTED AND T OOK ON RECORD PRESCRIBED DOCUMENTS , THAT ARE SUBMITTED BY ASSESSEE WHICH FORMS PART OF PAPER BOOK FILED BEFORE U S , MORE PARTICULARLY PLACED AT PAGE 2 - 152. FURTHER, HAVING REGARD TO THESE DOCUMENTS LD.AO, ACCEPTED INTERNATIONAL TRANSACTION ENTERED INTO BY ASSESSEE WITH ITS AE TO BE AT ARM S LENGTH PRICE , AND NO ADJUSTMENT WHATSOEVER HAS BEEN MADE. L D. AO HAS NOT EXPRESSE D ANY DIFFICULTY IN EXAMINING CORRECTNESS OF PRI C E ADOPTED BY ASSESSEE IN RESPECT OF INTERNATIONAL TRANSACTION WITH AE. THUS IN OUR CONSIDERED OPINION THERE IS NO JUSTIFICATION FOR IMPOSITION OF PENALTY UNDER SECTION 271 AA OF THE A CT. WE, THEREFORE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT( A ) AND THE SAME IS UPHELD. 6. ACCORDINGLY GROUNDS RAISED BY REVENUE STANDS DISMISSED. 7. IN THE RESULT APPEAL FILED BY REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH FEBRUARY, 2019. SD/ - SD/ - (N.K.BILLAIYA) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 14 TH FEBRUARY, 2019 GMV ITA NO.1401/DEL/2016 A.Y. 2011 - 12 ACIT VS. BSC C&C JV 6 C OPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NO.1401/DEL/2016 A.Y. 2011 - 12 ACIT VS. BSC C&C JV 7 DATE DRAFT DICTATED ON 12/02/2019 DRAFT PLACED BEFORE AUTHOR 13/02/19 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON & ORDER UPLOADED ON : 14.02.2019 FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.
