DCIT (IT) -4(1) (2) , MUMBAI vs. M/S. TECHWARE SINGAPRE HOLDINGS PTE. LTD, SINGAPORE

O R D E R

Per Amit Shukla, Judicial Member:

3. From the perusal of the impugned order, it is seen that Assessee is a Techware Singapore Holdings Pvt. Ltd. is incorporated in the Republic of Singapore. The Assessee's principal activity is to serve as an investment holding company. The Assessee had filed its return of income ('ROI') on 30 November 2016 returning a Short Term Capital Loss of Rs. (-) 4,09,52,182/-. The address of the assessee as disclosed in the R0I e-filed was its registered office at Singapore. The assessee did not have any office in India. The assessee had also filed an Accountant's Report in Form No. 3CEB on 30 November 2016, in accordance with Section 92E of the Income-tax Act, 1961 ('the Act'), reporting the particulars of its international transaction. The address of the assessee disclosed in the form No. 3CEB was registered office at Singapore.

4 Shrinivas Vijay Tandale 4. The Ld CIT(A) has deleted the penalty after referring to various judgments, wherein it was held that if the TPO was satisfied by the documents which were called for and were produced by the Assessee at a later point of time and no addition has been made then, it is not a case of total failure on the part of the Assessee.

5. After hearing Ld. DR and on perusal of the relevant findings given in the impugned order, we find that it is undisputed fact that Assessee had filed all the relevant documents in support of ALP of the International Transaction and the ALP that has been duly examined by the TPO and no adjustment has been proposed. It is not a case where there is a failure part of the Assessee to file documents before the TPO albeit could be case of belated replies. In any case, the Assessee categorically stated that Assessee had not received the notice because it was sent on the firm’s address who has issued the accountant report in Form No. 3CEB instead of Assessee’s registered address disclosed in the ROI. Thus, when notice itself issued by Assessing Officer has not been received by the Assessee and later on when the notice were received Assessee has made due compliance. It would be too harsh to levy penalty u/s 5 Shrinivas Vijay Tandale 271G Act, on amount of Rs.19.04 Crores on these facts when all compliances has been made and notices sent were on the address of the assessee. Even this fact was also brought to the notice of the AO during the penalty proceedings however, AO has given his own reasoning that the notice issued under section 92D(3) had been served upon the Assessee without ascertain whre the notice was sent. Thus, on the facts of the case, no penalty under section 271G can be levied in any case, if the Assessee has contended that notice was not served as the same was not sent on the registered address, then there was a reasonable cause for non compliance on the date specified in the notice issued u/s 92D(3) and therefore in view of provision of section 273B, penalty cannot be imposed. Accordingly the order of Ld. CIT(A) deleting the penalty is confirmed.