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TMI Blog2019 (10) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. (hereinafter referred to as the 'assessee') by filing the present appeals sought to set aside the impugned orders both dated 30.06.2016 passed by the Commissioner of Income - tax (Appeals)-37, New Delhi affirming the penalty orders both dated 19.12.2014 passed u/s 271(1)(c) of the Income-tax Act, 1961 (for short 'the Act'), qua the assessment years 2007-08 & 2008-09 on the identical grounds inter alia that :- "1. The order passed by the Learned Commissioner of Income Tax (Appeals) - 37 ("Ld. (A)") under Section 250 of the Act is bad in law and on the facts and circumstances of the case. 2. The Ld. CIT(A) has erred in law and on the facts and circumstances of the case by not appreciating that the appellant had computed the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act for Assessment Years 2007-08 & 2008-09 vide which addition of Rs. 4,54,54,937 & Rs. 2,41,93,000/- on account of TP adjustment and sales-tax subsidy respectively for AY 2007-08 and addition of Rs. 3,18,10,000/- in TP adjustment on account of royalty and Rs. 2,10,11,348/- in respect of TP adjustment on account of cost recharge to Associated Enterprises (AE), penalty proceedings u/s 271(1)(c) of the Act have been initiated for furnishing inaccurate particulars of income. Declining the contentions raised by the assessee, Assessing Officer (AO) levied the penalty of Rs. 1,51,77,400/- & Rs. 71,41,757/-for AYs 2007-08 & 2008-09 respectively @ 100% of the tax sought to be evaded. 4. Assessee carried the matter by way of appeals before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in this case is:- "As to whether the assessee has concealed particulars of income or has furnished inaccurate particulars of such income during assessment proceedings?" 8. Ld. AR for the assessee challenging the impugned order passed by the ld. CIT (A) contended inter alia that the penalty levied by the AO and sustained by the ld. CIT (A) is not sustainable because addition has been made just on the mere difference of opinion as to use of method of Transactional Net Margin Method (TNMM) and Comparable Uncontrolled Price (CUP) for making adjustment on account of transfer pricing; that the TPO has merely changed the method for TP adjustment, made addition on sales commission which is not covered for levying the penalty u/s 271(1)(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars have been concealed or inaccurate particulars have been furnished because the assessee has proved that the price paid by it under such transactions was computed in accordance with the provisions of section 92C and in the manner prescribed under the TNMM in good faith and with due diligence. Further the action of the TPO in changing the most appropriate method from TNMM to CUP without bringing on record any comparable instance, is itself faulty. In any case, it was the AO who was to determine whether or not such expenses were deductible in terms of section 37(1) and not the TPO, as has been done. We have noticed above that the exercise done by the TPO in determining Nil ALP on the premise that either no services were availed by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 271(1)(c) of the Income Tax Act, 1961 on the ground that the issue of deduction under Section 14A of the Act was a debatable issue. We may also note that against the quantum assessment where under deduction under Section 14A of the Act was prescribed to the assessee, the assessee has preferred an appeal in this Court under Section 260A of the Act which has also been admitted and substantial question of law framed. This itself shows that the issue is debatable. For these reasons, we are of the opinion that no question of law arises in the present case. This appeal is accordingly dismissed." 12. In view of what has been discussed above, we are of the considered view that the penalty levied by the AO and confirmed by the ld. CIT (A) for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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