ACIT-19)(1), MUMBAI vs. DAUJI & CO, MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

2. The revenue has raised the following grounds: - "1. Whether on the facts and in circumstances of the case and in law, the Ld. CIT(A) was right in deleting the penalty u/s 271G in the assessee’s case when he assessee had clearly failed in maintaining the documentation as required u/s 92D(3) of the I.T. Act. A.Y.2012-13

2. The appellant prays that the order of the Ld. CIT(A) on the above grounds be set aside and that of the AO be restored.

3. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.” 3. The brief facts of the case are that the assessment of the assessee was finalized on 15.01.2016 u/s 92CA(3). The TPO had initiated the penalty u/s 271G of the Act, 1961 against the assessee for non-submission of details called for during the course of TPO proceeding. The relevant details for initiation of penalty proceeding in the order u/s 92CA(3) dated 15.01.2016 is hereby reproduced as under for ready reference.:-

“3. Taxpayer’s profile: Dauji & Co. is a partnership firm that is engaged in the business of trading in diamonds exclusively. The firm purchases locally diamond and the same are either exported or sold locally. In respect of exports, the same are either exported to the Ae’s viz M/s. Dow Gems Inc. and M/s. Kuber Mfg. Inc. or to several non-AE’s. Details of International Transaction: Sr. Nature of Transaction Amount (Rs.) No 1 Export of cut and polished diamonds 21,19,74,097 5. 1 The Assessee has submitted that it is engaged in the business of manufacture and sale of studded jewelery. The assesses total sale is Rs.31,69,34,162/- and out of it Sales to AE is Rs. 21,19,74,097/- which comes to 67%. The assessee has used entity level TNMM method to benchmark these transactions. The calculation of its profit margin has been submitted by the assessee in the study report. Based on these figure the assessee has submitted its operating profit margin of 2.93% being better than the margins of comparable, all the above transaction should be treated as arm's length. 5.2A reference of the profit and loss account indicated that calculation of the profit margin of the assessee has been done at entity level. it is observed that the total international transaction on the sale side is Rs. 21.19 crores whereas the assessee has considered the total operating 2 A.Y.2012-13 revenue of Rs. 31.69 a-ores for margin calculation. Thus international transaction on the sale side constitutes only 6796 of the total revenue. it is observed that international Transactions constitutes less than 67% of the assessee total transaction and the remaining 33 % are third party transactions. This type of aggregation of AE transaction with Non AEs transaction is not permissible law under the TNMM Method. in this connection reference is made to rule I O(B)(l)(e). Transactional net margin method, by which, - i) the net profit margin realized by the enterprise from an international transaction 55c[or a specified domestic transaction] entered into with an associated enterprise is computed in relation to costs incurred or sales effected or assets employed or to be employed by the enterprise or having regard to any other relevant base; 'ii) the net profit margin realized by the enterprise or by an unrelated enterprise from a comparable uncontrolled transaction or a number of such transactions is computed having regard to the same base; iii) the net profit margin referred to in sub-clause (ii) arising in comparable uncontrolled transactions is adjusted to take into account the differences, if any, between the international transaction S5cIor the specified domestic transaction) and the comparable uncontrolled transactions, or between the enterprises entering into such transactions, which could materially affect the amount of net profit margin in the open market; iv) the net profit margin realized by the enterprise and referred to in sub- clause (i) is established to be the same as the net profit margin referred to in sub-clause (iii); the net profit margin thus established is then taken into account to arrive at an arm's length price in relation to the international transaction the specified domestic transaction. (Unquote) 5.3 The above indicates that for the purpose of application of TNMM, profit from the International Transactions alone has to be considered. The law does not permit the aggregation of International Transactions with other uncontrolled transactions for the purpose of determining ALP under TNMM. In this connection reliance is placed upon the decision of TEAT in the case of UCB India Pvt. Ltd. vs. ITAT (1TA No. 428 & 429 of 2007) which has been consistently followed by the ITAT on this issue. 5.4 The term transaction has been defined in Rule 10A to include a number of closely linked transactions. Two or more International 3 A.Y.2012-13 Transactions can be aggregated only when they are established to be closely linked. Therefore, when the law is so clear so as to permit aggregation of International Transactions only when they are closely linked, there is no mandate under law to aggregate AE and non Al? transactions. Even from common sense perspective, when the Al? transaction constitutes around 67% of the total transaction, the operating profit margin at entity level does not reflect the impact of Al? transaction but in fact is a reflection of Non Al? transaction. Therefore, entity level bench mark any undertaken by the assessee is rejected. 5.5 The assessee was asked to calculate the separate profitability of Al? and non Al? transactions vide its notice dated 23.02.2015 and 14.09.2015. From the submission, it is found that the assessee is having two segments namely Al? sales and Non-AE sales. The assessee has claimed that as per accounting standards it is not required to maintain and furnished segmental AE & Non Al? workings. However, the assessee has furnished filed one segmental working which is based on allocation of all costs in the ratio of sale to AE? and non AE. All costs have been allocated to the Al? and non Al? segment. This kind of margin working which does not reflect the real profitability for the purpose of benchmarking of International Transactions cannot be accepted. If the contention of the assessee is to be accepted, then the whole scheme of Transfer Pricing provision will be defeated as TNIV1M at the entity level will be applied in the every case in disregard the of criteria mentioned in Rule 100 for the selection of the WM. Therefore, the TNMM is not the MAM in this case. 5.6 Further under rule 10D(1) - clauses (g) & (h), the Assessee is required to maintain the price and profits earned in Al? & Non Al? Transactions separately. But the Assessee has neither maintained the price details of different qualities of diamond sold nor the profits earned on controlled and uncontrolled transaction separately. Hence the assessee has failed to maintain documentation as required under Rule 10D because of which the ALP of the international transactions could not be properly verified as per the methods prescribed u/ s. 92C(1). 5.7 Where the assessee fails to benchmark the IT in accordance with the MAM and where the assessee fails to maintain and furnish documents the same u/ s 92CA3), the TPO is required to determine ALP on the basis of information available on record. In this case, either CUP or TNMM or PSM are the only methods which could have been applied. As the assessee, has transaction both of purchase and sale, cost Plus and RPM cannot be applied. For the application of CUP method, complete details of purchase price in respect of different items is required so that the rate 4 A.Y.2012-13 at which the AR purchase and sale are made could be compared with non AB purchase and sale. However, the assessee has failed to maintain separate records of different quality. Similarly, for the application of TNMM, separate profitability on transaction is required. But the assessee has failed to furnish the details. 5.8 For the application of PSM, the profit earned by the AE and assessee is required which is also not furnished by the assessee. Thus assessee has prevented the revenue for making any determination of ALP by not furnishing the required documents. Though the law requires the TPO to determine the ALP based on information available on the records, however, due to the failure of assessee to maintain and furnish the basic information pertaining to the AE and non AE transactions, the TPO has been prevented from making any determination. In view of the same, for want of even the basic information, no adjustment is made to the value of International Transactions, though, from the material on record it cannot be concluded whether the IT are at ALP or not. 5.9 Under these circumstances, penalty u/ s 271G is initiated separately for failure of assessee to furnish the required documentation."

ISSUE NOs.1 & 2

“The appeal is filed against the Penalty Levied u/s 271 G of the IT Act 1961. The facts of the case is that the appellant is a partnership firm that is engaged in the business of trading in diamonds exclusively. The firm purchases diamonds locally and sells it locally or export it to its AE's - M/s Dow Gems Inc and M/s Kuber MIS. Inc. During the course of transfer Pricing proceedings, the TPO observed that the assessee has used entity level TNMM to benchmark the transaction. The TPO held that this type of aggregation of AE transaction with non AE transaction is not permissible law under the TNMM method and as per Rule 10(8)(1)(e) for the purpose of application of TNMM, profit from the international transaction alone has to be considered. The assessee was asked to calculate the separate profitability of AE and non AE transaction. It was found from the submission of the assessee that it is having two segments namely AE sales and Non AE sales. The assessee submitted that as per Accounting Standards it is not required to maintain and furnish segmental AE and Non AE workings. However, the assessee submitted one segmental working which was based on allocation of all costs in the ratio of sale to AE and Non AE. The TPO opined that this kind of margin working does not reflect the real profitability and cannot be accepted for benchmarking the international transaction. The TPO concluded that through the law Requires the TPO to determine the ALP based on information available on records, however due to the failure of the assessee to maintain and furnish the basic information pertaining to the AE and non AE transactions, the TPO has been prevented from making any determination and so no adjustment have been made to the value of international transaction and hence penalty His 271G was initiated and imposed for failure to furnish the required documentation. During the course of appellate proceedings, the AR of the appellant submitted following: 1. Form NO. 3CEB under rule 10E was furnished which contained details of information and documents kept and maintained by the appellant u/s 92D read with section 10D (1)(a) to (m).

6 A.Y.2012-13

(a) Decision of Hyderabad Bench of ITAT in the case of Annapurna Business Solution VS ACIT Circle 6(1) reported in 17 Taxman.com 125 in this regard. After analyzing the contention of the TPO and of submissions of the appellant and relying on above case laws I am of the considered opinion that penalty u/s 271G is not warranted in the above case and I find that appellant cannot be held responsible for failure to furnish information or documents u/s 93D(3). And so I find that appellant has furnished all information and documents which it was required to produce as per Accounting Standards.”