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2020 (12) TMI 1365 - ITAT MUMBAIPenalty imposed u/s 271AA and 271BA - adjustment to the arm's length price of the international transaction, the TPO has observed that the assessee has not complied with the provisions of section 92D and 92E - HELD THAT:- Transfer pricing provisions would not be applicable. Consequently, the assessee is not required to comply with the provisions contained u/s 92D and 92E. Though, the assessee was unsuccessfully on the aforesaid stand before the AO, TPO as well as the DRP, however, the Tribunal while considering assessee’s contention [2019 (1) TMI 1999 - ITAT MUMBAI] has restored the issue to the DRP for re–considering assessee’s claim that there was no international transaction of revenue nature between the assessee and the AE in the relevant financial year. Thus, in our considered opinion, when assessee’s contention regarding not having any international transaction with the AE is still unresolved and is pending before the DRP, it would not be logical and proper to proceed in the matter of imposition of penalty u/s 271AA and 271BA - The requirement of complying with the provisions of section 92D and 92E of the Act only arises in the event of assessee having any international transaction with the AE. Since, the aforesaid preliminary claim is now pending for decision before the DRP, we are inclined to set aside the impugned orders of Commissioner (Appeals) and restore the issue relating to imposition of penalty under section 271AA and 271BA to the AO - AO, if warranted, may initiate proceedings under the aforesaid provisions on the basis of outcome of the decision of the DRP in the quantum proceedings. Grounds raised by the assessee are allowed for statistical purposes.
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