TaxTMI 
TaxTMI 
2026 (10) TMI 409
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....peal raised by the assessee in ITA No.4393/Mum/2024 (AY 2020-21) are as under: "Ground No. 1 to 3: General 1. The AO erred in determining the Appellant's total income at Rs. 5,33,69,35,340 as against the returned income of Rs. 4,63,82,78,660. 2. The AO erred in issuing two same dated incongruous demand letters and computation sheets on e-filing portal. Demand payable as per DL-1 is Rs. 26,26,77,154 and as per DL-2 is Rs. 40,39,07,620. 3. The AO erred in initiating penalty proceedings under Section 270A of the Act. Ground No. 4: Income taxed on accrual basis as against receipt basis 4. The AO/Dispute Resolution Panel ('DRP') erred in holding that the royalty and fees for technical service income are taxable on an accrual basis as opposed to the receipt basis adopted by the Appellant. In this regard they failed to follow binding decisions of Honorable Bombay High Court in the Appellant's own case for AY 2003-04, 2001-02, 1997-98, 1996-97 and 1986-87 to 1992-93 and Honorable Tribunal in the Appellant's own cases for AY 2009-10, 2006-07, 2005-06, 2004-05, 1999-2000, 1998-99 and 1994-95 Ground No. 5 to 7:....
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....39;PE') for the purposes of the DTAA between India and Germany in respect of its contract with PGCIL and others. 13. The AO/DRP erred in taxing the income arising from offshore supply of equipments in relation to PGCIL and other contracts overlooking the provisions in the Act and the DTAA between India and Germany Ground No. 14 to 19: Miscalculation and incorrect levy of certain line items in CS-1 and CS-2 14. Without prejudice to other grounds, the AO erred in levying incorrect rate of tax on income chargeable under special rate of tax in CS-1 as well as CS-2 vis-à-vis the rate of tax determined in the assessment order 15. Without prejudice to other grounds, further, the AO erred in levying incorrect rate of Surcharge and Health and education cess in CS-1 as well as CS-2 16. On the facts and circumstances of the case and in law, the AO erred in levying interest under section 234A, return of income filed by assessee on 15 February 2021, within due date applicable for assessment year. Return is processed by CPC, with no interest levied u/s. 234A vide intimation dated 22 December 2021 Considering, return filed within due date ap....
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....he international transaction of "Technical services and other transactions' (being 10% of INR 4,34,95,30,642) without applying any of the prescribed methods as per section 92C of the Act, the adjustment carried out by the TPO is thus purely adhoc and arbitrary. The Hon'ble DRP further erred in confirming the action of the AO/ΤΡΟ. 24. On the facts and circumstances of the case and in law, the TPO/ AO/ DRP erred in not appreciating that the Appellant had benchmarked its international transactions pertaining to Technical services and other transactions with AEs in India based on the Transactional Net Margin Method for determining the ALP of such transactions by adopting the Transfer Pricing documentation of its Indian AEs. 25. On the facts and circumstances of the case and in law, the TPO/AO/ DRP erred in observing that the Appellant had failed to discharge its onus as it had not reconciled the international transactions pertaining to "Technical services and other transactions with AEs in India referred to in its Form No.3CEB with the financial statements of the Indian AEs. 26. On the facts and circumstances of the case and in law, th....
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....no resemblance to the demand outstanding as appearing on the e-proceeding tab on e-filing income-tax portal of the Income-tax department, and iv. Neither DL I nor DL 2 have been served on it. The said letters have been downloaded by the Appellant being DL 1 on 1 July 2024 from e-proceeding tab and DL. 2 on 5ª July 2024 from same tab on e-filing income-tax portal. 2. In view of the above, it is submitted that there is no valid notice of demand and related documents thereby vitiating the assessment order." 4. The grounds of appeal raised by the assessee in ITA No.6728/Mum/2024 (AY 2021-22) are as under: "Ground No. 1: Order passed under Section 143(3) r.w.s. Section 144C(13) of the Act shall be issued within the timelines as specified under Section 153 of the Act. 1. On the facts and the circumstances of the case and in law, the final order dated 23 October 2024 passed by the AO under Section 143(3) read with Section 144C(13) of the Act is barred by limitation in view the provisions of Section 153(1) of the Act. Ground No. 2 to 3: General 2. The AO erred in determining the Appellant's total income at Rs. 5,08,89,26,702....
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....erred in not adjudicating the Appellant's objection challenging the finding of the AO that the Appellant along with Siemens Ltd. Allegedly constituted an AOP in respect of the contract with PGCIL, DMRC and others. 10. In the alternative and without prejudice to the above, the AO/DRP ought to have held that income in respect of contract with PGCIL, DMRC and others, to the extent it is taxable, should be assessed individually in the hands of the Appellant and Siemens Limited and not in the hands of an alleged AOP 11. The AO erred in giving the findings that there exists an AOP relying on decisions which have been overruled by higher authorities. 12. The AO/DRP erred in holding that Siemens Ltd. Constituted the Appellant's permanent establishment ('PE') for the purposes of the DTAA between India and Germany in respect of its contract with PGCIL and others. 13. The AO/DRP erred in taxing the income arising from offshore supply of equipments in relation to PGCIL and other contracts overlooking the provisions in the Act and the DTAA between India and Germany Ground No. 14 to 16: Miscalculation and incorrect levy of certain line....
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....r erred in confirming the action of the ΑΟ/ΤΡΟ. 20. On the facts and circumstances of the case and in law, the AO/TPO/DRP erred in determining an adhoc adjustment of INR 40,51,50,931 towards determination of ALP of the international transaction of "Technical services and other transactions' (being 10% of INR 4,05,15,09,319) without applying any of the prescribed methods as per section 92C of the Act, the adjustment carried out by the TPO is thus purely adhoc and arbitrary. The Hon'ble DRP further erred in confirming the action of the AO/TPO. On the facts and circumstances of the case and in law, the TPO/ AO/ DRP erred in not appreciating that the Appellant had benchmarked its international transactions pertaining to 'Technical services and other transactions with AEs in India based on the Transactional Net Margin Method for determining the ALP of such transactions by adopting the Transfer Pricing documentation of its Indian AEs 21. On the facts and circumstances of the case and in law, the TPO/ AO/DRP erred in observing that the Appellant had failed to discharge its onus as it had not reconciled the international transacti....
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....essary either at or before the appeal hearing." ITA No.4393/Mum/2024 (AY 2020-21) 5. Facts of the case, in brief, are that the assessee filed its return of income for AY 2020-21 declaring total income of Rs. 4,63,82,78,660/-. The assessee is a tax resident of Germany and non-resident in India. The assessment was completed u/s. 143(3) r.w.s. 144C(13) of the Act, pursuant to the directions of the DRP. The assessee had earned income by way of royalty, fees for technical services (FTS) and interest from various Indian entities. The AO held that the aforesaid income was taxable on accrual basis instead of receipt basis and, accordingly, determined royalty, FTS and interest income at Rs. 4,53,20,39,096/-. The AO further treated receipts of Rs. 25,84,29,501/- towards software as royalty taxable under Article 12 of the India-Germany DTAA. 5.1 Further, the AO has also made an addition on account from income from offshore supply from composite contract. The relevant facts as noted by the AO are as follows: "During the year under consideration, the assessee, Siemens AG ('SAG' or 'the Assessee') has receipts (on accrual basis) from Power Grid Corporation of In....
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....2019 and ITA No.1253/Mum/2021 dated 29.04.2026. We have heard both sides and perused the materials on record. 7. Grounds No.1,2 and 3: These grounds are general in nature and do not require any specific adjudication. 8. Ground No. 4: The ground pertains to taxability of income on cash or accrual basis. This is a recurring issue and has been decided by the Tribunal in the latest order in ITA No.2159/Mum/2017 & Ors. dated 29.04.2026. The relevant part is reproduced below for ready reference: 5. Issue No. 2: Taxability on Cash vs. Accrual Basis We have perused the submissions advanced by both sides in light of the records placed before this Tribunal. This issue pertains to the taxability of income on cash basis vis-à-vis accrual basis. It is observed that the Coordinate Bench in assessee's own case for A.Y. 2009-10 has dealt with this issue in detail. The relevant findings of the Tribunal are as under:- "77. Ground No.1 of Revenue's appeal refers to direction of the ld. DRP to tax royalty in FTS on receipt basis which according to department shall be on accrual basis. 78. The assessee is a non-resident Company, incorporated in Germany, having ta....
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.... that other State. 2...... 2. The tem "royalties' as used in this Article means payments of any kind received as a consideration for the use....................... 3. The term "fees for technical services" as used in this Article means payments of any amount inconsideration and so on 5.... 6..... 7..... (emphasis supplied) 81. Thus, as per the tax treaty, Royalty and fees for technical services income should be taxable only upon payment i.e. on receipt basis. If this position has been accepted by the Tribunal in assessee's own case for the earlier years and also by the Hon'ble Bombay High Court, the details of which are as under:- 82. Hence, we do not find any reason to take any different position. Before us the ld. DR had submitted that there is a reference in the case of Ampacet Cyprus Ltd. vs. DCIT reported in (2020) 119 Taxmann.com 277 (Mumbai Trib) wherein the Tribunal has referred the matter to special Bench. In the context of the India-Cyprus Tax treaty where the issue is whether interest received should be taxed on receipt basis or on accrual basis. Since in assessee's own case this issue stands settled....
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....orders and the case made out by the assessee before the authorities below and also before us that consideration received for supply of software cannot be deemed to be royalty for the reasons that :- • Firstly, the software provided are standard off-the-shelf software. • Secondly, the assessee grants a non-exclusive and non-transferable license to its customers, allowing them to copy the software for single user use only on their equipment. • Thirdly, the end-user license agreement includes several restrictions, prohibiting the use of the software for purposes other than those specified in the agreement or the creation of copies for commercial exploitation. • Fourthly, even in cases where the relevant hardware and software are itemized separately on the same invoice, or when separate invoices are issued, or when updates to the software are supplied, or additional features are validated at a later date, such distinctions should not affect the stance. These software products are exclusively compatible with the equipment manufactured by the assessee and hold no utility on similar equipment produced by its competitors. • L....
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.... cannot be considered as "royalty". We, therefore, approve the view taken by the learned CIT(A) on this issue." 12. Furthermore, in AY 2005-06, the Tribunal has examined the scenario wherein software was provided separately from any hardware, and it has adhered to the precedent established in assessee's own case for A.Y.2001-02. The relevant extract of the observations made by the Tribunal is as under:- "6. During the year under consideration, the assessee had supplied equipment to the various parties in India. The software required for the said equipment was also supplied by the assessee to its Indian customers. During the course of assessment proceedings, the A.O. verified the relevant invoices and found on such verification that the software in some cases was supplied by the assessee independently without any reference to the supply of corresponding equipment. He therefore treated the income earned by the assessee from the supply of software as in the nature of royalty and the same was brought to tax in the hands of the assessee as income from royalty. On appeal, the ld. CIT(A) held that the value of software could not be taxed as royalty in the hands of the as....
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.... laid down by the Hon'ble Supreme Court is clearly applicable on the facts of the assessee's case and accordingly we hold that consideration received for supply of software cannot be taxed as royalty under India German DTAA. Thus, the ratio and principle laid down by the Hon'ble Supreme Court is clearly applicable on the facts of the assessee's case and accordingly we hold that consideration received for supply of software cannot be taxed as royalty under India German DTAA. 16. During the course of hearing, the ld. DR had strongly relied upon the observation made in the assessment order and submitted that a review petition had also been filed before the Hon'ble Supreme Court in the matter of Engineering Analysis Centre of Excellence Pvt Ltd., However, the same is not entertained because judgment of the Hon'ble Supreme Court as on today is binding on us. Moreover, there are various other decisions of the Hon'ble High Courts on this issue which has been highlighted before us, the same is not being reproduced. Accordingly, we hold that this issue is covered in favour of the assessee not only in its own case as well as by the judgment of the Hon'ble Supre....
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....vices. During the year under consideration DMRC project itself involves 75.81% of the total turnover of off-shore supplies and 96.13% of the turnover of off-shore services and the controversy revolves around this contract, whether the project done by Siemens Ltd. Seimens AG constitue AOP a separate tax entity. 19. Delhi Metro Rail Corporation Limited ('DMRC') sought to extend Line-3 in Phase-II of the Mass Rapid Transport Systems for Delhi under the Japanese Yen Credit Loan. In this regard, it had inter alia invited tenders for design, manufacture, supply, installation, testing and commissioning of train control and signaling system on the extensions, integration with existing Line-3 systems for the BS03 project. Considering the terms and conditions of the tender documents, the assessee, Seimens AG and Siemens Limited desired to participate in the project and mutually agreed to work together in good faith on an exclusive basis during the preparation and submission of the tender proposal for the project and to execute the project in their respective and independent scope of work if the tender proposal was accepted. For this purpose, a Memorandum of Understanding dat....
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....to be carried out by each of the parties to the agreement was separate and identifiable. Since, each party had to independently carry out the work falling within its respective scope there was no joint management and control except for co- ordination required for smooth execution of the project. Though, they were jointly and severally liable to DMRC, they have agreed to indemnify the other party for loss suffered by them in view of any default by either party. That the arrangement was to directly receive consideration relating to the individual scope of work carried out by the respective parties and there was no sharing of profits or losses. Theoretically, it was possible that one of the parties may make a profit while the other may make a loss. It has been submitted that, a bare perusal of the MOU shows that no Association of Person ('AOP') came into existence Limited) between the assessee and Siemens Limited 21. Since, the assessee, Seimens AG and Siemens Limited were successful in the tender, the project was awarded to them, and a contract dated 08 10.2007 was entered into between DMRC on one side (as the Employer) and the assessee and Siemens Limited on the oth....
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....on and commissioning of equipment(s) which the tenderer itself has supplied and has been commissioned through an associated enterprise upon association and assignment by the tenderer. Hence, it is an indivisible and composite contract. - Through the cross-fall breach clause enshrined in Clause 9, the very nature of the contract becomes singular and composite. Any claims for an artificial division of the contract can be ignored. - In performance of the Contract, the assessee along with, Siemens Limited (SL), India, entered into an 'Consortium' arrangement (The term 'arrangement' is used as no 'Agreement" in that respect has been furnished by the Assessee) in respect of which no detail has been furnished. Hence, such an consortium arrangement appears to be informal but binding due to associated nature of the 2 parties. In such a scenario, association of 2 persons, viz., Siemens AG and Siemens Limited (India) has been formed to undertake the contract. - It is noteworthy that despite consortium of part of the contract, Siemens AG was to be solely bound by the terms of the tender and was to be liable to the Consortium Leader/lead partner fo....
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....61 ('the Act'). However as per Section 2(31) of the Act while defining "person' includes under clause (v) "an association of persons or body of individuals whether incorporated or not." The explanation to Section 2(31) of the Act clarifies that an AOP shall be deemed to be a person whether or not such association was formed, with the object of deriving income, profits or gains. 29. As the term AOP has not been defined in the Act, one has to consider certain judicial precedents to determine the characteristics of an AOP. The concept of when an AOP comes into existence can be fairly clear as a result of several Supreme Court decisions on the subject. The Supreme Court in the case of CIT v. Indira Balkrishna [1960] 39 ITR 546 (SC) has held that to constitute an AOP, earning of income by joining together in a venture and sharing of profits or loss is essential. Further the Supreme Court in the case of G. Murugesan & Bros. v. CIT [1973] 88 ITR 432 (SC) held that the finding members "joined for common purpose or common action" or they helped in producing income to form an AOP is essential. Thus, it is evident that there must be a common design to produce income and i....
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....uctural Engineers (P.) Ltd. [2015] 374 ITR 35 (Delhi) which has relied on the Principles laid down in Linde AG (supra), and has held that JV was not an association of persons and liable to be taxed on that basis. 34. Now coming to the decision of Hyundai Rotem Co., which has been heavily relied upon by the revenue authorities, wherein similar issue was involved if the question of formation of an AoP in connection with a similar consortium contract of DMRC, held that an AoP does not exist as: i. the nature of work undertaken and capable of being executed by each party is very much different and the scope of work assigned to one party cannot be undertaken or relocated to another, ii. both parties have different skill-sets, that is why the evaluation was also done by DMRC separately in relation to each member, iii. interchangeability or re-assignment of work and overseeing each other's work was not possible; iv. each party did not act as an agent of the other; v. though the performance guarantee was given by MRMB Consortium, the fact remains that DMRC insisted on a separate guarantee and undertaking from the parent company of e....
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....AO bringing to tax other streams of income in the hands of the assessee and Siemens Ltd separately would itself show that no AOP has been constituted between the parties. 38. The case of the AO has been elaborated specifically in paras 11.7 to 11.9 of the final assessment order, whereby the aspects which have been put against the assessee for constitution of an AOP are that, the BS 03 contract between DMRC on the one side and the assessee and Siemens Limited on the other side is a single and composite one, where the contractors are jointly and severally liable to the employer A24 for execution of the contract. In this regard, AO has made reference to 'Cross Fall Breach Clause' in the said contract. AO has also made reference to the orders of the Authority for Advance Ruling in the case of Linde AG and Alstom Transport SA which according to the AO, on similar facts and circumstances an AOP has been found to be constituted. But now this AAR decision has been reversed by the Hon'ble Delhi High Court. 39. On the other hand, ld. DR has filed his written submissions which is reproduced as under:- From perusal of the facts and circumstances of the case, it appea....
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....ation of the Contractor ...To design, manufacture, supply, install, test and commission of Train Control & Signaling system, and To supply spares, O&M Manuals, training of 08M personnel, supervision of maintenance, and To provide all equipment, materials, labor and other facilities requisite for or incidental to the successful completion of the Works" In the tender process, the assessee, Siemens AG with its Associated Enterprise Siemens (India) Limited was the successful bidder. DMRC and the assessee entered into a contract on 08.10.2007. In the contract DMRC has been described as "Employer" and the Consortium comprising of Siemens (India) Limited and the assessee Siemen AG (Transport Systems TS R.A.) has been described as "Contractor". It has been mentioned that Siemens (India) Limited and Siemens AG would be jointly and severally liable for undertaking the contract, and collectively referred to as the Contractor It is relevant to set down the terms of the contract at this stage: Clause 4 Value of Work and Completion Time The Employer agrees to pay for the total cost of the Works and the Contractor agrees to accept the sums mentioned below in th....
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....f the consortium, each Party shall indemnify and hold harmless the other party to this MOU from all costs, claims, actions, expenses or liabilities incurred by or imposed upon the other Party as a result of or in connection with its failure, breach, delay, or other default in the performance of its respective obligations under the Contract. Hence, in this case, even there no separate and independent contracts. The purpose of the Contract can be laid down to be as under: ".. to implement the design, manufacture, supply, install and commission Train Control & Signaling system for Extension of Line 3 of the Mass Rapid Transport System (MRTS) -Phase I Project..." However, the purpose for which the tender was invited by DMRC was for commissioning of Train Control & Signaling System. It was not for supply of offshore equipments and training independently of the designing, installation and commissioning project. Nor was it for independent installation and commissioning, divorced from the design and supply of the equipments necessary. Such a contract has necessarily to be read as a whole and is not capable of being split up. On analysis the terms of contract in t....
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....ucts and Technical support services in relation there to under the offer are Concerned..." Siemens AG and Siemens Limited agree to co-operate with each other in the Project on an exclusive basis as a consortium members and will be Jointly and Severally liable for the execution of the Contract work... Liability of Parties: The lead partner in charge shall be authorized to incur liabilities, receive payments and receive instructions for and on behalf of other partner subject to that- Each Party shall be solely and entirely responsible to the other Party for the performance of the Contract in respect of its Scope of Work and for any and all liabilities arising in connection therewith. Each Party shall indemnify and hold harmless the other party from all costs, claims, actions, expenses or liabilities incurred by or imposed upon the Party as a result of or in connection with its failure, breach, delay or other default in the performance of its obligations under the Contract referred to for the purposes of this clause as "default"... Each Party shall undertake all reasonable efforts to mitigate the loss in the event of the other Party's default un....
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....to several related and dependent parts. Hence from the above discussion, it is found that the assessee had entered into a contract with DMRC for off shore supply and services only, that the payment therefore was received outside India and that the transaction of sale was not taxable in India, In such a scenario, the following factors come into play in respect of the taxability of the underlying transaction to the instant contract. 11. Ratio of Roxar Maximum Reservoir Performance WLL: In the recent landmark ruling made by the Hon'ble Authority for Advance Rulings (AAR) In Re Roxar Maximum Reservoir Performance WLL (AAR), it has been held that a composite contract for installation & commissioning cannot be split so as to exempt the profits from offshore supply of goods. It has been held that: Decisions and Rulings relied on by learned counsel of the assessee have now to be considered in the context of the pronouncement of the Supreme Court in Vodafone International Holdings BV Netherlands vs. Union of India and another (345 ITR 1 (SC). In that recent decision, a three judge bench of the Supreme Court has laid down that what is needed is to cons....
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....ion of the equipment. It is a composite contract for supply and erection at sites within the territory of India. What is paid for by ONGC is for the supply and erection done in India. The payment is received by the assessee for the performance of the contract as a whole in India. It is therefore clear that the income to the assessee accrued in India. A contract for sale of goods differs from a contract for installation and commissioning of a project. The tests relevant for considering where the title to the equipment, passed would not be relevant while construing the terms of a supply and erection contract. Therefore the facts relied on by counsel for the assessee to argue that the title to the gauges passed outside the country, are of no avail. 12. Siemens AG and Siemens Ltd. (India) form an A_QP - Ratio of Alstom_Transport SA: In this case for the purpose of obtaining the Contract, the assessee Siemens AG has formed a 'Consortium' with an associate enterprise, Siemens Limited (India), as 'Consortium Partner1 and has shared the responsibilities of the contracts. In performance of the Contract, the assessee along with, Siemens Limited (SL), In....
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.... Consortium with DMRC. The object of the contract and the purpose of the contract were the designing, installation and commissioning of the Train Control & Signaling system. The contract provided for the payment for the work in lump and it cast liability on the Consortium for carrying out the work. A contract has to be read as a whole in the context of the purpose for which it is entered into. A contract for the designing, installation and commissioning of a project like the present one cannot be split up into separate parts as consisting of independent supply or sale of equipments and for designing, installation at the work site, leading to the commissioning and SO on. In the case on hand, on a true construction of the contract between the parties (DMRC-Consortium), it is obvious that it is a contract, the sole purpose of which is installation and commissioning of a Train Control & Signaling system and its delivery to DMRC. Further, as per recent AAR ruling in case Alstom Transport SA vs. DIT (AAR) (A.A.R. No. 958 of 2010), it has been held that composite contract cannot be split to exempt profits from offshore supply of goods and a joint contract constitutes an ....
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....evant in this context is to consider the legal rights and obligations arising out of and undertaken under that composite contact/transaction to determine the status of the association as a person. Hence, the Association Members including the assessee and its related concern Siemens Limited, India, is a resident of India fiscal territory and is liable to be assessed as an Association of Persons and the income from the transaction was chargeable to tax in India. Gist of Alstom Case (2012-TI-28-ARA-INTL) as applied to the instant Proceedings: In the Alstom case, the following ratio have been laid down which is applicable to the case in hand: As per Ground No. (i), it has been held that though in Ishikawajima-Harima 288 ITR 408 (SC), Hyundai Heavy Industries 291 ITR 482 (SC) & Hyosung Corp 341 ITR 18 (AAR)it was held that that a composite contract was capable of being dissected and it was open to the assessee to raise the contention that parts of the contract should be treated separately for the purpose of deciding whether income from the performance of that part of the contract arose onshore or offshore and that part of the income attributable to offshore tr....
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....fone International Holdings BV Netherlands vs. Union of India and another (supra) which has also been referred in AAr Ruling in the case of Linde AG, Linde Engineering Division, the same is not applicable in the fact of the present case and this has also been overruled by the Hon'ble Delhi High Court in the case of Linde AG, Linde Engineering Division (supra). Further, the Hon'ble Delhi High Court in the case of Nokia Networks OY [2012] 25 taxmann.com 225 which rejected the reliance placed by the Department on Vodafone International Holdings BV considering the same as not relevant and High Court relied on the Supreme Court in the case of Ishikawajima Harima Heavy Industries Ltd, (supra) and held that such contracts cannot be read as one by applying the "look at approach as prescribed in the decision of the Supreme Court in the case of Vodafone International Holdings BV. 41. After considering the aforesaid submissions and the facts as discussed above including the judgment referred and relied upon by both the parties, we find that this case is squarely covered by the decision of the Hon'ble Delhi High Court in the case of Linde AG which has been discussed in detail in the f....
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.... 1.3 of the MoU is very clear that nothing in the contract agreement shall be deemed to constitute, create, give effect to or otherwise recognize a corporation, association, partnership, joint venture or formal or informal business entity of any kind and the insurance qua the contract has been taken by each member separately and not by the consortium. Thus, we agree with the Ld. Sr. Counsel for the assessee that on these facts it cannot be held that there constitutes of AOP between Siemens AG and Siemens Ltd. Thus, this issue is decided in favour of the assessee and against department." 7.1. Respectfully following the aforesaid decision of the Coordinate Bench in assessee's own case, wherein the issue has been examined in detail after considering the relevant statutory provisions, judicial precedents and the factual matrix, we find no reason to deviate from the view already taken. Since the facts and circumstances in the year under consideration are identical, and no distinguishing feature has been brought to our notice by either side, the findings and directions contained in the said order are squarely applicable to the present assessment year. Accordingly, this issue is ....
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....ity under the DTAA is concerned, it is observed that the Protocol in the Indo German DTAA specifically deals with the same. Therefore, respectfully following the decision of Hon'ble Supreme Court in the case of Ishikawajima Harima Heavy Industries Ltd., and provisions of the Protocol to Article 7 in the India Germany DTAA, the Ld.AO is directed not to tax the income arising from offshore supply of goods. As regards the reference to the decision of Hon'ble Supreme Court in the case of Vodafone International Holdings BV(supra), it is held that the observations of Hon'ble Supreme Court on the concept of 'look-at' and look-through' principles are in an entirely different context. It is also observed in assessee's own case, coordinate bench of this Tribunal and Hon'ble Bombay High Court have decided the issue in its favour. In this connection, decision of Hon'ble Bombay High Court in assessee's own case of A.Y:1999-2000 in ITA No. 5591 of 2010 A.Y. 1998-99 in ITA No. 5612 of 2010, and for A.Y. 1997-98 in ITA No.1033 of 2010 has been relied by the Ld.AR. Respectfully following these decisions in assessee's own case and applying the principles laid down b....
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.... perused the submissions advanced by both sides in light of the records placed before this Tribunal. The issue relates to transfer pricing adjustments. It is noted that Coordinate Bench in A.Y. 2009-10 has adjudicated this issue on identical facts by observing as under:- "76. We have heard the rival submissions and perused the relevant finding given in the impugned orders. One of the reasons given by the ld. TPO and the ld. DRP is that assessee has been earning to reconcile the value of transaction disclosed by the Indian AEs in the Form 3CEB if the value disclosed by the assessee in its return of income. The assessee had explained that the difference is for the reason that assessee accounts the amount on receipt basis whereas the Indian AE's reports the transaction on accrual basis and this assessee has been doing in accordance with the provisions of the tax treaty. It is important to note here that, this position has also been upheld by the Hon'ble Bombay High court in assessee's own case that it should be taxed on receipt basis. It was for this reason amounts recorded by the Indian AE cannot be the same. Apart from that, the assessee reports only those transactions that....