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Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा लेखा सद�य लेखा लेखा सद�य सद�य, राजे�� सद�य राजे�� राजे�� केकेकेके अनु राजे�� अनु अनुसार अनु सार सार/ PER Rajendra A.M.- सार Challenging the orders dt. 22.09.11 of CIT(A)-21, Mumbai the assessee has filed appeals for the above mentioned two AY.s. As the issue involved in the appeals is identical, levy of penalty u/s. 271(1)(c) of the Act, so we are adjudicating both the appeals by a single common order. 306/M/2012 A.Y.2008-09 : 2.The assessee filed its return of income on 19.09.2008, declaring total income at Rs.2.69 crores. Subsequently, on 18.09.2009 it filed transfer pricing report in Form No.3CEB wherein International Transaction (IT) of Rs.3.35 crores were reported. The Assessing Officer (A.O.) held that the assessee was required to furnish the report in Form No.3CEB on or before the due date u/s.139(1) of the Act as per the provisions of section 92E,that it had failed to comply with the terms of the said section. He initiated penalty proceedings u/s. 271BA of the Act. 3.Vide its letter dt.18.11.2009 the assessee made its submissions and referred to the Circular No.6/2008, dated 18.07.2008 issued by the CBDT and stated that there was no intention on part of the assessee as not to deliberately file the report alongwith the return of income for the year under consideration, that the report was filed on 26.09.2009.
306 & 307/M/12-Mesdan India After considering the submission of the assessee, the AO held that the Explanation filed by it for delay/default in furnishing the report was untenable, that the return was e-filed on 19.09.2008, that the audit report in form No.3CEB was submitted on 18.09.2009, that it had tried to rectify the failure to comply with the provisions of section 92E of the Act at a later date, that it had committed a default under section 271BA. Finally he levied a penalty of Rs.1 lakhs, vide its order dated 28.05.2010. 4.Aggrieved by the order of the AO, the assessee is in appeal before the First Appellate Authority (FAA). Before him, it was argued that the CBDT by its Circular dt.18.07.2008 (supra), had clarified that no documents were to be attached with the return of income , that the officers receiving the return of income were instructed to detach all documents enclosed with the return of income and to hand it over to the assessee, that the CBDT had clarified in its Circular and had advised the assessee’s to retain with themselves all the Annexures relating to computation of income, TDS certificates, audit reports and any other document which they would have otherwise liked to file in support of their claims, that the Board had allowed the assessee to file the original documents and certificates to the AO as and when called for by the employees,that there was no intention on part of the assessee to file the report belatedly, that non submission of report alongwith the return was only a technical default, that the imposition of penalty was not in the form of collection of revenue, that as per the provisions of section 273B, if the assessee proves that there was reasonable cause for failure in filing the report,penalty u/s. 271BA should not be levied, that there was reasonable cause for failure on part of the assessee, that a bona fide breach should not lead to imposition of penalty, that the AO had not asked for the report by issuing notice/questionnaire.
After considering the penalty order and the submission of the assessee the FAA held that the assessee did not file the report as required by the provisions of the Act, that it had obtained the report on 18.09.2008, that it filed the report in September 2009, that the officials of the department were not prohibited by the CBDT to accept other documents enclosed with submissions/independent forwarding letters. The assessee could have forwarded the report with a letter or could have sent by post, that there was no reasonable cause for filing of report, AO was justified in levying penalty u/s. 271BA of the Act.
None appeared before us as stated earlier. The DR supported the order of the FAA and contended that report was filed after one year.
306 & 307/M/12-Mesdan India