TaxTMI 
TaxTMI 
2014 (4) TMI 1238
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.... passed under section 143(3) of the Income-tax Act, 1961 C Act') incorporating the order under section 92CA(3) of the Act issued by the learned Transfer Pricing Officer resulting in an addition of Rs. 14,08,10,625 to the total income of the appellant on account of adjustment in the arm's length price ("ALP') of the international transaction entered by the appellant with its associated enterprise. 2.2 Based on the facts and circumstances of the case, the learned Transfer Pricing Officer / Assessing Officer has erred in not accepting the economic analysis undertaken by the appellant in accordance with the provisions of the Act read with the Income-tax Rules, 1962, and conducting a fresh economic analysis for the determination of the ALP of the impugned international transaction and holding that the appellant's international transactions are not at arm length. 2.3 Based on the facts and circumstances of the case, the learned Transfer Pricing Officer / Assessing Officer has erred in determining the arm's length margin/ price using only with the transfer pricing documentation requirements. 2.4 Based on the facts and circumstances of the cas....
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....enses in the total cost base and revenue of the software services division. 2.12 Based on the facts and circumstances of the case, the learned Transfer Pricing Officer / Assessing Officer has erred by not providing the appellant any opportunity of being heard in certain cases. 2.13 Based on the facts and circumstances of the case, the learned Transfer Pricing Officer / Assessing Officer has erred by not taking into consideration foreign exchange fluctuation gain/ loss and provisions written back in computing the operating margins of the comparable companies. 2.14 Based on the facts and circumstances of the case, the learned Transfer Pricing Officer / Assessing Officer has erred by not making suitable adjustments to account for differences in the risk profile of the appellant vis-a-vis the comparables. 2.15 Based on the facts and circumstances of the case, the learned Transfer Pricing Officer / Assessing Officer has erred in not providing the benefit of the arm's length range as provided under proviso to Section 92C of Act for purposes of computing the arm's length price under Section 92F of the Act. 3.1 Based on the facts and cir....
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....s of the case, the learned Assessing Officer has erred in law and in fact in initiating penalty proceedings under section 271(1)(c) of the Act, against the appellant. 8. Based on the facts and circumstances of the case, the learned Assessing Officer has erred in law and in fact in levying interest under section 234B and section 234D of the Act. 9.1 Based on the facts and circumstances of the case, the learned Assessing Officer has erred in law and in fact in levying interest under section 234C of the Act in the computation sheet despite the fact that the assessment order does not specify for such levy. 9.2 Without prejudice, based on the facts and circumstances of the case, the learned Assessing Officer has erred in law and in fact in levying interest under section 234C of the Act at a higher amount as against the amount of interest offered by the appellant in the return of income computed on the returned income. 10. Based on the facts and circumstances of the case, the Hon'ble DRP has erred in law and in fact in confirming, unless otherwise mentioned, all the aforesaid additions/ disallowances proposed by the learned Assessing Officer in the....
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....justment of Rs. 14,08,10,625/-. 6. Against the above order the assessee is in appeal before us. 7. Assessee has taken up a preliminary objections that the AO framed an order in the name of non-existing company M/s Nokia Siemens Network India Pvt. Ltd. (NSNIPL) which merged with the Nokia Siemens Network Pvt Ltd. on account of the order of the Hon'ble High Court dated 9.1.2009 under which the merger took place with effect from 1.4.2008. Therefore, the company has assessed ceased to exist on 1.4.2008. The assessment order was passed on 28.10.2010, much after to this date of merger. It has been submitted that in this regard the assessee had written a letter to the AO on 25.5.2009. Copy of the same is as under:- "May 25, 2009 The Public Relation Officer C.R. Building Queens Road Bangalore Dear Sir, Re: Nokia Siemens Networks India Private Limited (Formerly Siemens Public Communication Networks Private Limited) ('NSNIPL' or 'the company') PAN - AABCS9839H Application for transfer of income-tax files under section 127 of the Income Tax Act, 1961 ('Act') NSNIPL, is a company incorporat....
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....Chief Commissioner of Income Tax -V, New Delhi (7) The Commissioner of Income Tax - V, New Delhi (8) The Deputy Commissioner of Income Tax, Circle 13(1), New Delhi Encl: As above" 7.1 Ld. Counsel drew our attention to the copy of the Hon'ble High Court dated 9.1.2009 placed in Paper Book No. C at Pages no. 6 to 38. In this Order the Hon'ble High Court has sanctioned the petition in the case of M/s Nokia Siemens Network India Pvt. Ltd, the transferor company seeking sanction of amalgamation with M/s Nokia Siemens Network Pvt. Ltd. (transferee company) so as to make the same binding on all the share holders, secured and unsecured activities of the transferor as well as transferee company. 8. Ld. Counsel of the assessee submitted that despite this letter, the AO did not take cognizance of the fact that company has ceased to exist and it got merged. Ld. Counsel pleaded that since the order has been passed on a non-existent entity, it is a nullity. Ld. Counsel admitted that this ground has not been raised before the DRP. However, he submitted that this is a purely question of law. Reliance was placed on the decision of the Hon'ble Supreme Court in the ca....