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2019 (11) TMI 1136 - ITAT DELHILevy a penalty u/s 271G - default of non-submission of documents within stipulated period as required under section 92D(3) prior to the amendment in section 271G of the Act by Finance (No.2) Act, 2014 effective from October 1, 2014 - HELD THAT:- Penalty u/s 271G is leviable for omission or commission of the wrongful act in accordance with the law applicable on the date of such commission or omission. So, we are of the considered view that on the date of non-compliance of the notice as required under section 92D (3) i.e. October 23, 2013, only AO was having the power to levy the penalty u/s 271G and not the TPO. So, the penalty levied by the TPO vide order dated 27.04.2015 and confirmed by the CIT (A) by passing the impugned order is not sustainable in the eyes of law. Even on merits, the penalty levied by the ld. TPO and sustained by the ld. CIT (A), is not sustainable because undisputedly assessee has submitted documents on the basis of which ld. TPO has proposed the adjustment and no prejudice whatsoever is caused to the Revenue. Hon’ble Apex Court in the case of Hindustan Steel Ltd. vs. State of Orissa [1969 (8) TMI 31 - SUPREME COURT] held that, “when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bonafide belief that the offender is not liable to act in the manner prescribed the statue, the competent authority may not impose the penalty.” Though there is a delay on the part of the assessee to file the requisite documents but ultimately documents have been filed and assessment has been framed and moreover no malafide on the part of the assessee not to comply with the provisions contained under section 92D (3) has come on record and as such, penalty levied in this case is not sustainable on merits also. Penalty levied by the TPO and confirmed by the CIT (A) is not sustainable on account of jurisdictional error, hence penalty order is quashed - Decided in favour of assessee.
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