FREMANTLE INDIA TELEVISION PRODUCTS P.LTD, MUMBAI V. ACIT 16(1), MUMBAI

ITA 529/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9195 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 23-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKUNDRAJ CHATE
• Keywords: Transfer pricing; Principle of natural justice; International transaction; Bonafide belief; Reasonable cause
• Section: 271(1)(c); 143(3); 92D

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL K BENCH MUMB AI BEFORE SHRI G.S. PANNU, VICE- PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 529/MUM/2017 (ASSESSMENT YEAR 2012-13 ) FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD., 406, MORYA LANDMARK-II, OF NEW LINK ROAD, OSHIWARA, ANDHERI (W), MUMBAI- 400053. PAN: AAACF0436A VS. ACIT - 16(1), MUMBAI. A PPELLANT RESPONDENT APPELLANT BY : SHRI M.P. LOHIA WITH SHRI HEMAN CHANDARIYA (AR) RESPONDENT BY : SHRI MUKUNDRAJ CHATE (DR) DATE OF HEARING : 18.06.2019 DATE OF PRONOUNCEMEN T : 24.06.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME -TAX ACT (ACT) IS DIRECTED AGAINST THE SEPARATE ORDERS OF LD. COMMISS IONER OF INCOME-TAX (APPEALS)-4, MUMBAI [HEREINAFTER REFERRED AS LD. CI T(A)], WHICH IN TURN ARISES FROM THE PENALTY LEVIED BY ASSESSING OFFICER UNDER SECTION 271AA OF THE ACT DATED 30.09.2015 FOR ASSESSMENT YE AR 2012-13.THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE CIT(A) ERRED IN UPHOLDING THE PENALTY LEVIED BY AO UNDER SECTION 271AA OF THE ACT OF RS.29,55,350. 2. THE CIT(A) FAILED TO APPRECIATE THAT RECEIPT OF SHARE APPLICATION MONEY AND ISSUE/ALLOTMENT OF SHARES OUT OF SHARE AP PLICATION MONEY RECEIVED IN THE PREVIOUS YEAR BY THE APPELLANT FROM ITS PARENT/HOLDING COMPANY DID NOT GIVE RISE TO AN INTERNATIONAL TRANS ACTION AND IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 2 CONSEQUENTLY THERE WAS NO OBLIGATION ON IT TO REPOR T THE SAID TRANSACTION IN FORM 3CEB. THIS POSITION IS ALSO CONFIRMED BY TH E SAID FORM PRESCRIBED FOR ASSESSMENT YEAR 2012-13 WHICH DID NO T CONTAIN ANY REQUIREMENT FOR REPORTING SUCH TRANSACTION. 3. IN THE ALTERNATIVE AND WITHOUT PREJUDICE TO THE ABOVE, THE APPELLANT WAS UNDER THE BONAFIDE BELIEF THAT NO INCOME ARISES AND HENCE NO TRANSFER PRICING ADJUSTMENT COULD RESULT FROM THE R ECEIPT OF SHARE APPLICATION MONEY AND, THEREFORE, NO REQUIREMENT TO REPORT THE SAID TRANSACTION AROSE. AS PER SECTION 2736 OF THE ACT, NO PENALTY SHALL BE LEVIED ON THE ASSESSEE FOR ANY FAILURE IF HE PROVES THAT THERE WAS A REASONABLE CAUSE FOR SUCH FAILURE. 4. THE CIT(A) FAILED TO APPRECIATE THAT THE FACT OF RECEIPT OF SHARE APPLICATION MONEY AND ALLOTMENT OF SHARES OUT OF SH ARE APPLICATION MONEY RECEIVED IN THE PREVIOUS YEAR HAD BEEN DISCLO SED IN THE ANNUAL ACCOUNTS AS WELL AS THE TAX AUDIT REPORT OF THE APP ELLANT. 2. FURTHER, VIDE APPLICATION DATED 27.11.2018, THE ASS ESSEE HAS RAISED THE FOLLOWING ADDITIONAL GROUND OF APPEAL: 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE AO WITHOUT APPRECIAT ING THE FACT THAT THE PENALTY ORDER PASSED BY THE AO U/S. 271AA OF THE AC T IS BAD IN LAW DUE TO NON- APPLICATION OF MIND WHICH IS EVIDENT FROM T HE NOTICE U/S. 274 R.W. SECTION 271AA OF THE ACT WHEREIN THE SPECIFIC CHARGE ON WHICH PENALTY PROCEEDING IS INITIATED IS NOT MENTIONED AS WELL AS FROM THE FACT THAT THE INITIATION OF THE PENALTY IN THE ASSESSMEN T ORDER AND LEVY OF PENALTY IN PENALTY ORDER ARE ON TWO DIFFERENT CLAUS ES OF SECTION 271AA OF THE ACT; 3. BRIEF FACTS OF THE CASE IS EXTRACTED FROM THE ORDER OF LOWER AUTHORITIES ARE THAT THE ASSESSEE IS A CORPORATE ENTITY AND TAX RES IDENT OF INDIA. DURING THE RELEVANT PERIOD UNDER CONSIDERATION, THE ASSESS EE-COMPANY RECEIVED SHARE APPLICATION MONEY OF RS. 13,22,60,000/- FROM ITS HOLDING/PARENT IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 3 COMPANY M/S FREE MENTAL OVERSEAS HOLDING BV, NETHER LAND AND ALSO PAID SHARE APPLICATION MONEY OF RS. 1,55,07,500/- T O ITS ASSOCIATED ENTERPRISES (AE). THE SAID TRANSACTION WAS NOT REPO RTED BY ASSESSEE IN FORM-3CEB. THE ASSESSING OFFICER WHILE MAKING THE S CRUTINY ASSESSMENT ISSUED SHOW-CAUSE NOTICE UNDER SECTION 2 71AA AND 271G FOR NOT REPORTING THE TRANSACTION IN FORM 3CEB. THE ASS ESSEE FILED ITS REPLY ON 09.03.2015. IN THE REPLY, THE ASSESSEE STATED TH AT RECEIPT OF SHARE APPLICATION MONEY FROM ITS ASSOCIATE ENTERPRISES IS NOT AN INTERNATIONAL TRANSACTION WITH CHAPTER- X OF INCOME-TAX ACT. ACCO RDINGLY, PENALTY CANNOT BE INITIATED. THE REPLY OF ASSESSEE WAS NOT ACCEPTED BY ASSESSING OFFICER. THE ASSESSING OFFICER WHILE PASSING THE AS SESSMENT ORDER UNDER SECTION 143(3) INITIATED THE PENALTY ON THE GROUND THAT THE INFORMATION REGARDING DOMESTIC AND INTERNATIONAL TRANSACTION HA S NOT BEEN MAINTAINED AS REQUIRED BY CLAUSE (1) OR SUB-SECTION (2) OF SECTION 92D AND THE ASSESSEE IS LIABLE FOR PENALTY UNDER SECTI ON 271AA AND 271G, VIDE ORDER DATED 23.03.2015. 4. DURING THE PENALTY PROCEEDINGS A AFRESH SHOW-CAUSE UNDER SECTION 271AA AND 271G DATED 02.09.2015 WAS SERVED ON THE A SSESSEE. THE ASSESSEE FILED ITS REPLY DATED 15.09.2015 ON 18.09. 2015. IN THE REPLY, THE ASSESSEE STATED THAT THE ALLEGED TRANSACTION IS NOT AN INTERNATIONAL TRANSACTION AND THUS SHOW-CAUSE NOTICE IS WITHOUT J URISDICTION. THE ASSESSEE HAS NOT FAILED TO MAINTAIN THE PRESCRIBED RECORD. NO REPORTING OF IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 4 TRANSACTION CANNOT GIVE RISE PRESUMPTION TO FAILURE TO MAINTAIN THE SPECIFIC RECORD. EVEN IF IT IS ASSUMED THAT ALLOTME NT ON SHARE IS AN INTERNATIONAL TRANSACTION, THOUGH WITHOUT ACCEPTING AND ADMITTING, EVEN BASED ON THE BONAFIDE BELIEF OF THE ACCOUNTANT THAT THE ALLOTMENT OF SHARE IS NOT AN INTERNATIONAL TRANSACTION, THE ASSE SSEE IS ELIGIBLE FOR RELIEF UNDER SECTION 273B. IT WAS FURTHER STATED THAT EVEN IF IT IS ASSUMED, THOUGH WITHOUT ACCEPTING OR ADMITTING, THE ALLOTMEN T OF SHARE IS AN INTERNATIONAL TRANSACTION COVERED BY CHAPTER-X, AND THAT THE ACCOUNTANT HAS NOT REPORTED THE TRANSACTION IN FORM 3CEB WHICH HAD ALREADY BEEN SUBMITTED WITH THE REVENUE WITHIN PRESCRIBED TIME B ECAUSE OF WRONG OPINION OF THE PROFESSIONAL ACCOUNTANT, THE ASSESSE E CANNOT BE PENALIZED. THE CONTENTION OF ASSESSEE WAS NOT ACCEP TED BY ASSESSING OFFICER HOLDING THAT SECTION 271AA(II) CLEARLY STIP ULATES THAT FAILURE TO REPORT INTERNATIONAL TRANSACTION ATTRACT PENALTY UN DER SECTION 271AA. THE ASSESSING OFFICER TOOK THE VIEW THAT UNDER INTERNAT IONAL TRANSACTION, THE ASSESSEE RECEIVED SHARE APPLICATION MONEY OF RS. 13 ,22,60,000/- AND BY WAY OF ALLOTMENT OF SHARE CAPITAL, THE ASSESSEE OUT OF SHARE APPLICATION MONEY RECEIVED RS. 1,55,07,500/-, THUS, THERE IS TO TAL TRANSACTION OF RS. 14,77,67,500/-. THE ASSESSING OFFICER LEVIED THE PE NALTY UNDER SECTION 271AA @ 2% OF THE ABOVE TRANSACTION AND WORKED OUT THE PENALTY OF RS. 29,55,350/- VIDE ITS ORDER DATED 30.09.2015. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSESSING OFFICER WAS CONFIRM ED. THE LD. CIT(A) IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 5 WHILE CONFIRMING THE ACTION OF ASSESSING OFFICER CO NCLUDED THAT SHARE CAPITAL IS A BUSINESS TRANSACTION AND EARNING OF IN COME OR CAUSING OF FINANCE TRANSACTION IN THE BUSINESS SCENARIO, THERE FORE, THE CONCEPT OF TRANSACTION IS VERY MUCH PRESENT. FURTHER AGGRIEVED BY THE ORDER OF LD. CIT (A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. 5. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENT REPRESENTATIVE (DR) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN SU PPORT OF APPLICATION FOR FILING ADDITIONAL GROUND OF APPEAL, THE LD. AR OF THE ASSESSEE SUBMITS THAT THE ADDITIONAL GROUND OF APPEAL RAISED BY ASSE SSEE ARE PURELY LEGAL GROUND AND FACTS PERTAINING TO THE GROUNDS, GROUND IS ALREADY ON RECORD. THE ADDITIONAL GROUND GOES TO THE ROOT OF THE ISSUE . THE LD. AR OF THE ASSESSEE PRAYED FOR ADMITTING THE ADDITIONAL GROUND AND TO DECIDE THE APPEAL ON MERIT. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUBMI TS THAT THE ASSESSEE HAS NOT RAISED SUCH LEGAL GROUND BEFORE THE FIRST A PPELLATE AUTHORITY. THE ASSESSEE HAS RAISED FOR THE FIRST TIME, THESE G ROUND OF APPEAL, THEREFORE, THE ADDITIONAL GROUND SHOULD NOT BE ENTE RTAINED. 7. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE FACT THAT ADDITIONAL GROUND RAISED BY THE ASSESSEE IS PURELY LEGAL IN NATURE AND THAT NO FURTHER FACT ARE NECESSARY TO BROUGHT ON RECORD FOR ADJUDICATING THE ISSUE AND ALL THE FACTS ARE EMANATING FROM THE ORD ERS OF THE LOWER IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 6 AUTHORITIES. THE ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE IS ALLOWED. 8. ON ADDITIONAL GROUND AS WELL AS ON ORIGINAL GROUNDS OF APPEAL, THE LD. AR OF THE ASSESSEE SUBMITS THAT DURING THE PERIOD U NDER CONSIDERATION, THE ASSESSEE RECEIVED SHARE APPLICATION MONEY OF RS . 13,22,60,000/- AND PAID SHARE APPLICATION MONEY OF RS. 1,55,07,500/-. THESE TRANSACTIONS WERE NOT REPORTED IN FORM 3CEB. THE LD. AR OF THE A SSESSEE FURTHER SUBMITS THAT PENALTY UNDER SECTION 271AA IS LEVIABL E (I) FAILED TO KEEP AND MAINTAIN ANY SUCH INFORMATION AND DOCUMENT REQU IRED UNDER SUB- SECTION (1) OR SUB-SECTION (2) OF SECTION 92D OR, ( II) FAILED TO REPORT SUCH TRANSACTION WHICH THE ASSESSEE IS REQUIRED TO DO, O R (III) MAINTAINED OR FURNISHED INACCURATE INFORMATION OR DOCUMENTS. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT WHILE ISSUING SHOW-CA USE NOTICE, THE ASSESSING OFFICER HAS NOT SPECIFIED THE SPECIFIC LI MB OF THE CHARGE. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R IN PARA-9 OF THE ORDER RECORDED THAT ASSESSEE HAS NOT MAINTAINED THE INFORMATION AND DOCUMENT. THE ASSESSING OFFICER WHILE ISSUING SHOW- CAUSE NOTICE DATED 23.03.2015, ISSUED THE SAID NOTICE ON PERFORMA HAS NOT SPECIFIED TO SPECIFIC CHARGE. THE SECOND SHOW-CAUSE NOTICE WAS I SSUED ON 02.09.2015. SIMILARLY, NO SPECIFIC CHARGE WAS MENTI ONED IN THE SHOW- CAUSE NOTICE. THE ASSESSING OFFICER WHILE LEVYING T HE PENALTY ON THE CHARGE TO FAILURE TO REPORT THE INTERNATIONAL TRANS ACTION. THE LD. AR OF THE IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 7 ASSESSEE FURTHER SUBMITS THAT FORM 3CEB WAS FILED I N NOVEMBER 2012. AT THE TIME OF FILING FORM 3CEB, THERE IS NO REQUIR EMENT TO FURNISH SUCH INFORMATION RELATED WITH INTERNATIONAL TRANSACTION; SUBSTITUTED FORMAT IS APPLICABLE FROM 01.04.2013. THE LD. AR OF THE ASSE SSEE SUBMITS THAT THERE WAS IMPOSSIBILITY OF PERFORMANCE FOR FURNISHI NG THE REQUIRED INFORMATION IN FORM 3CEB (AMENDED) WHICH IS APPLICA BLE ONLY FROM 01.04.2013. IN SUPPORT OF HIS SUBMISSIONS THE LD. A R FOR THE ASSESSEE RELIED ON THE DECISION OF BOMBAY HIGH COURT IN CIT VS NGC NETWORK (INDIA) PRIVATE LIMITED (ITA NO. 397 OF 2015 DATED 29.01.2018). 9. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT THE ASSESSING OFFICER INITIATED THE PENALTY FOR NOT MAINTAINING THE RECOR D, HOWEVER, THE PENALTY WAS LEVIED BY ASSESSING OFFICER FOR NOT REPORTING I NTERNATIONAL TRANSACTION, THEREFORE, AND THERE WAS AN INFIRMITY IN THE NOTICE WHICH REFLECTS THE NON-APPLICATION OF MIND BY ASSESSING O FFICER. THUS, INITIATION ON ONE LIMB AND LEVYING PENALTY ON ANOTH ER LIMB, THE ORDER ITSELF IS IN VIOLATION OF NATURAL JUSTICE AND ACCOR DINGLY THE PENALTY ORDER IS NOT SUSTAINABLE. IN SUPPORT OF HIS SUBMISSION, T HE LD. AR OF THE ASSESSEE RELIED UPON THE DECISION OF MUMBAI TRIBUNA L IN MEHERJEE CASSINATH HOLDINGS (P.) LTD. VS. ACIT [ 2017] 88 TA XMANN.COM 777 (MUMBAI TRIB). 10. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LOWER AUTHORITIES. THE LD. DR FOR THE REVENUE FURTH ER SUBMITS THAT THE IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 8 ASSESSEE WAS VERY WELL AWARE ABOUT THE CHARGE, THE ASSESSEE HAS CONTESTED THE CASE ON MERIT AND NO PREJUDICE WAS SH OWN BY ASSESSEE. THE ASSESSING OFFICER HAS ISSUED NON-STATUTORY NOTI CE. THE NOTICE IS NOT MANDATORY, WHEN THE ASSESSEE HAS FULLY PARTICIPATED AND CONTESTED THE PROCEEDING. IN SUPPORT OF HIS SUBMISSION, THE LD. A R OF THE ASSESSEE RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COU RT IN MAHARAJ GARAGE & CO. VS. CIT [2017 ] 400 ITR 292 (BOM). 11. IN THE REJOINDER SUBMISSION, THE LD. AR OF THE ASSE SSEE SUBMITS THAT THE DECISION OF MAHARAJ GARAGE & CO. VS. CIT (SUPRA) HA S BEEN DISTINGUISHED BY TRIBUNAL IN ITA NO. 1399/MUM/2016 DATED 19.01.2018 IN INDRANI SUNIL PILLAI VS. ACIT, WHEREIN IT WAS HE LD THAT THE OBSERVATION OF HONBLE HIGH COURT APPEARS TO BE IN CONTEXT OF Q UANTUM PENALTY PROPOSED AND NOT WITH REFERENCE TO DOING AWAY WITH THE ISSUANCE OF SHOW-CAUSE NOTICE AS CONTEMPLATED UNDER SECTION 274 . THE DECISION OF HONBLE HIGH COURT CANNOT BE READ OUT IN A CONTEXT OR IN A MANNER TO MEAN THAT THERE IS NO NEED FOR MENTIONING SPECIFIC CHARGE OF SECTION 271(1)(C) FOR WHICH THE PENALTY WAS INTENDED TO BE PROPOSED. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. DURING THE ASSESSMENT THE ASSESSING OFFICER RECORDED THAT DURING RELEVANT PER IOD UNDER CONSIDERATION, THE ASSESSEE-COMPANY RECEIVED SHARE APPLICATION MONEY OF RS. 13,22,60,000/- FROM ITS HOLDING/PARENT COMPA NY M/S FREE MENTAL IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 9 OVERSEAS HOLDING BV, NETHERLAND AND ALSO ALLOTTED S HARE CAPITAL OF RS. 1,55,07,500/-. THE ASSESSEE HAS NOT REPORTED THE SA ID TRANSACTION IN FORM-3CEB. THE ASSESSING OFFICER WHILE MAKING THE S CRUTINY ASSESSMENT INITIATED PENALTY UNDER SECTION 271AA AN D 271G FOR NOT REPORTING THE TRANSACTION IN FORM 3CEB. THE ASSESS ING OFFICER DURING THE PENALTY PROCEEDINGS AGAIN ISSUED SHOW CAUSE NOT ICE VIDE NOTICE DATED BEFORE PASSING THE ORDER WHILE LEVYING THE PE NALTY UNDER SECTION 271AA. THE ASSESSEE FILED ITS REPLY DATED 15.09.201 5 AND AGAIN ON 18.09.2015. IN THE REPLY THE ASSESSEE STATED THAT T HE TRANSACTION OF RECEIPT OF SHARE APPLICATION FROM HOLDING COMPANY AND ALLOT MENT OF SHARES, IS NOT AN INTERNATIONAL TRANSACTION, AND THUS SHOW-CAU SE NOTICE IS WITHOUT JURISDICTION. NO REPORTING OF TRANSACTION CANNOT GI VE RISE PRESUMPTION TO FAILURE TO MAINTAIN THE SPECIFIC RECORD. IT WAS ALS O STATED EVEN, IF, IT IS ASSUMED THAT ALLOTMENT ON SHARE IS AN INTERNATIONAL TRANSACTION, THOUGH WITHOUT ACCEPTING AND ADMITTING, EVEN BASED ON THE BONAFIDE BELIEF OF THE ACCOUNTANT THAT THE ALLOTMENT OF SHARE IS NOT A N INTERNATIONAL TRANSACTION. THE ASSESSEE ALSO CLAIMED IT WAS BONAF IDE EXPLANATION AND PRAYED FOR RELIEF UNDER SECTION 273B. 13. WE HAVE FURTHER NOTED THAT THE ASSESSEE CLAIMED TH AT EVEN IF IT IS ASSUMED, THOUGH WITHOUT ACCEPTING OR ADMITTING, THE ALLOTMENT OF SHARE IS AN INTERNATIONAL TRANSACTION COVERED BY CHAPTER- X, AND THAT THE ACCOUNTANT HAS NOT REPORTED THE TRANSACTION IN FORM 3CEB WHICH HAD IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 10 ALREADY BEEN SUBMITTED WITH THE REVENUE WITHIN PRES CRIBED TIME BECAUSE OF WRONG OPINION OF THE PROFESSIONAL ACCOUNTANT, TH E ASSESSEE CANNOT BE PENALIZED. IN OUR VIEW THE ASSESSEE HAS CLEARLY SET OUT A CASE OF REASONABLE CAUSE FOR NOT IMPOSING PENALTY. 14. WE HAVE ALSO EXAMINED THE SUBMISSIONS OF THE LD. A R FOR THE ASSESSEE THAT FORM 3CEB WAS FILED IN NOVEMBER 2012. AT THE T IME OF FILING FORM 3CEB, THERE IS NO REQUIREMENT TO FURNISH SUCH INFOR MATION RELATED WITH INTERNATIONAL TRANSACTION; SUBSTITUTED FORMAT IS AP PLICABLE FROM 01.04.2013. THE LD. AR OF THE ASSESSEE SUBMITS THA T THERE WAS IMPOSSIBILITY OF PERFORMANCE FOR FURNISHING THE REQ UIRED INFORMATION IN FORM 3CEB (AMENDED) WHICH IS APPLICABLE ONLY FROM 0 1.04.2013. WE FIND CONVINCING FORCE IN THE SUBMISSIONS OF THE LD. AR FOR THE ASSESSEE THAT SUBSTITUTED FORM NO. 3CEB IS APPLICABLE FROM 0 1.04.2013 ONLY, THUS THERE WAS IMPOSSIBILITY OF PERFORMANCE. SIMILA R VIEW WAS TAKEN BY HONBLE BOMBAY HIGH COURT IN CIT VS NGC NETWORK (I NDIA) PRIVATE LIMITED, WHEREIN THE COURT HAS APPLIED THE LEGAL M AXIM LEX NON COGIT AD IMPOSSIBLIA (LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT PERFORM). THUS, THE ASSESSEE ALSO SUCCEEDED ON THIS SUBMISSION. THEREFORE, IN OUR VIEW NO PENALTY WAS LEVIABLE ON T HE ASSESSEE UNDER SUCH CIRCUMSTANCES. IT A NO. 529 MUM 2017-FREMANTLE INDIA TELEVISION PRODUCTIONS PVT. LTD. 11 15. AS WE HAVE ACCEPTED THE APPEAL OF THE ASSESSEE ON T WO SUBMISSIONS THEREFORE, THE ADJUDICATION OF THE ADDITIONAL GROUN D OF APPEAL HAS BECOME ACADEMIC. 16. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/06/ 2019. SD/- SD /- G.S. PANNU PAWAN SINGH VICE-PRESIDENT JUDICIAL MEMBER MUMBAI, DATE: .06.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR K BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI