M/s Nokia Siemens Networks India Pvt. Ltd., Gurgaon v. ACIT, New Delhi

ITA 5801/DEL/2010 | 2006-2007
Pronouncement Date: 16-04-2014 | Result: Allowed

Appeal Details

RSA Number 580120114 RSA 2010
Assessee PAN AABCS9839H
Bench Delhi
Appeal Number ITA 5801/DEL/2010
Duration Of Justice 3 year(s) 3 month(s) 26 day(s)
Appellant M/s Nokia Siemens Networks India Pvt. Ltd., Gurgaon
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 16-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 16-04-2014
Date Of Final Hearing 16-04-2014
Next Hearing Date 16-04-2014
Assessment Year 2006-2007
Appeal Filed On 20-12-2010
Judgment Text
ITA NO. 5801/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I NEW DELHI BEFORE SHRI A.D. JAIN JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 5801/DEL/2010 A.Y. : 2006-07 M/S NOKIA SIEMENS NETWORKS PRIVATE LIMITED 7 TH FLOOR BUILDING NO. 9A DLF CYBER CITY SECTOR- 25A GURGAON-122002 HARYANA (PAN:AABCS9839H) VS. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 13(1) CENTRAL REVENUE BUILDING NEW DELHI 110 002 (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. SALIL KAPOOR ADV. DEPARTMENT BY : SH. PEEYUSH JAIN CIT(DR) AND SH. YOGESH KUMAR VERMA CIT(DR) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. ASSESSING OFFICER PASSED U/S. 143(3) READ W ITH SECTION 144C OF THE I.T. ACT DATED 28.10.2010 AND PERTAINS TO AS SESSMENT YEAR 2006-07. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. BASED ON FACTS AND CIRCUMSTANCES OF THE CASE T HE LEARNED ASSESSING OFFICER HAS ERRED IN COMPLETING THE ASSES SMENT AT AN ASSESSED INCOME OF RS. 53 55 74 554 AS AGAINST THE INCOME OF RS. 28 52 36 663 RETURNED BY THE APPELLANT. ITA NO. 5801/DEL/2010 2 2.1 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE HON'BLE DISPUTE RESOLUTION PANEL CORP') HAS ERRED IN CONFIR MING THE DRAFT ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT 1961 C ACT') INCORPORATING THE ORDE R UNDER SECTION 92CA(3) OF THE ACT ISSUED BY THE LEARNED TR ANSFER PRICING OFFICER RESULTING IN AN ADDITION OF RS. 14 08 10 625 TO THE TOTAL INCOME OF THE APPELLANT ON ACCOUNT OF ADJ USTMENT IN THE ARM'S LENGTH PRICE ('ALP') OF THE INTERNATIONAL TRANSACTION ENTERED BY THE APPELLANT WITH ITS ASSOCIATED ENTERP RISE. 2.2 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED IN NOT ACCEPTING THE ECONOMIC ANALYSIS UNDERTAKEN BY THE A PPELLANT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT READ W ITH THE INCOME-TAX RULES 1962 AND CONDUCTING A FRESH ECON OMIC ANALYSIS FOR THE DETERMINATION OF THE ALP OF THE IM PUGNED INTERNATIONAL TRANSACTION AND HOLDING THAT THE APPE LLANT'S INTERNATIONAL TRANSACTIONS ARE NOT AT ARM LENGTH. 2.3 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED IN DETERMINING THE ARM'S LENGTH MARGIN/ PRICE USING ON LY WITH THE TRANSFER PRICING DOCUMENTATION REQUIREMENTS. 2.4 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED IN REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED B Y THE APPELLANT WHERE CONSOLIDATED RESULTS HAD BEEN USED FOR ANALYSIS. THE APPELLANT HAD CONSIDERED THE CONSOLID ATED RESULTS IN ONLY THOSE CASES WHERE THE SOFTWARE RELATED INCO ME OF THE INDIAN OPERATIONS CONSTITUTED MORE THAN 75 PERCENT OF THE CONSOLIDATED COMPANY-WIDE/ SEGMENTAL REVENUES. ITA NO. 5801/DEL/2010 3 2.5 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED B Y THE APPELLANT USING TURNOVER < RS. 1 CRORE AS A COMPARA BILITY CRITERION. 2.6 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED B Y THE APPELLANT AS HAVING ECONOMIC PERFORMANCE CONTRARY T O THE INDUSTRY BEHAVIOUR. 2.7 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED B Y THE APPELLANT FOR HAVING DIFFERENT ACCOUNTING YEAR (I.E . COMPANIES HAVING ACCOUNTING YEAR OTHER THAN MARCH 31 OR COMPA NIES WHOSE FINANCIAL STATEMENTS WERE FOR A PERIOD OTHER THAN 12 MONTHS ). 2.8 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED B Y THE APPELLANT USING EMPLOYEE COST GREATER THAN 25 PERCE NT OF THE TOTAL REVENUES AS A COMPARABILITY CRITERION. 2.9 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED B Y THE APPELLANT USING ONSITE REVENUES GREATER THAN 75 PER CENT OF THE ONSITE REVENUES AS A COMPARABILITY CRITERION. ITA NO. 5801/DEL/2010 4 2.10 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY EXERCISING HIS POWERS UNDER SECTION 133(6) OF THE A CT TO OBTAIN INFORMATION WHICH WAS NOT AVAILABLE IN PUBLIC DOMAI N AND RELYING ON THE SAME FOR COMPARABILITY PURPOSES. 2.11 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED IN LAW AND FACTS BY INCLUDING REIMBURSEMENT OF EXPENSES I N THE TOTAL COST BASE AND REVENUE OF THE SOFTWARE SERVICES DIVI SION. 2.12 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY NOT PROVIDING THE APPELLANT ANY OPPORTUNITY OF BEING HE ARD IN CERTAIN CASES. 2.13 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY NOT TAKING INTO CONSIDERATION FOREIGN EXCHANGE FLUCTUAT ION GAIN/ LOSS AND PROVISIONS WRITTEN BACK IN COMPUTING THE O PERATING MARGINS OF THE COMPARABLE COMPANIES. 2.14 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED BY NOT MAKING SUITABLE ADJUSTMENTS TO ACCOUNT FOR DIFFEREN CES IN THE RISK PROFILE OF THE APPELLANT VIS-A-VIS THE COMPARA BLES. 2.15 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED TRANSFER PRICING OFFICER / ASSESSING OFFICER HAS ER RED 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 . ITA NO. 5801/DEL/2010 5 3.1 BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND IN FACT IN HOLDING THE CAPITAL RECEIPT OF RS 108 421 198/- BEING SECURED L OAN WAIVED OFF IN ACCORDANCE WITH THE NOTIFICATION ISSUED BY T HE GOVERNMENT OF WEST BENGAL [UNDER CENTRAL SALES TAX ACT 1956 READ WITH BENGAL FINANCE (SALES) TAX ACT 1941 ] AS REMISSION OF TRADING LIABILITY TAXABLE UNDER THE P ROVISIONS OF SECTION 41(1)(A) OF THE ACT. 3.2. WITHOUT PREJUDICE BASED ON THE FACTS AND CIR CUMSTANCES OF THE CASE THE HON'BLE DRP HAS ERRED IN LAW AND IN FACT IN HOLDING THE AFORESAID CAPITAL RECEIPT OF RS 108 421 198/- B EING SECURED LOAN WAIVED OFF AS TAXABLE BENEFIT ARISING TO THE A PPELLANT IN COURSE OF CARRYING ON THE BUSINESS WITHIN THE MEANI NG OF SECTION 28(IV) OF THE ACT. 4.1 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED ASSESSING OFFICER HAS ERRED IN AMOUNTING TO RS 5 33 4 082 FROM THE EXPORT TURNOVER WHILE COMPUTING THE AMOUNT OF DEDUCTION AVAILABLE TO THE SOFTWARE TECHNOLOGY PARK ('STP') U NIT OF THE APPELLANT UNDER SECTION 10A OF THE ACT WITHOUT APPR ECIATING THE FACT THAT NO PART OF DATA COMMUNICATION EXPENSE S INCURRED IN FOREIGN CURRENCY HAS BEEN INVOICED TO THE CUSTOM ERS AS 'CONSIDERATION IN RESPECT OF EXPORT OF COMPUTER SOF TWARE. 4.2 WITHOUT PREJUDICE BASED ON THE FACTS AND CIRC UMSTANCES OF THE CASE THE LEARNED ASSESSING OFFICER HAS ERRED IN LA W AND IN FACT IN NOT DEDUCTING THE AFORESAID DATA COMMUNICATION E XPENSES INCURRED IN FOREIGN CURRENCY FROM THE TOTAI TURNOV ER WHICH CALCULATING THE DEDUCTION AVAILABLE TO THE STP UNIT UNDER SECTION 10A OF THE ACT. ITA NO. 5801/DEL/2010 6 5. WITHOUT PREJUDICE TO THE APPELLANT'S GROUNDS OF APPEAL IN EARLIER ASSESSMENT YEARS BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED ASSESSING OF FICER HAS ERRED IN LAW AND IN FACT IN NOT ALLOWING DEDUCTION FOR PROVISIONS UTILIZED / RELEASED DURING ASSESSMENT YE AR 2006- 2007 WHICH WERE DISALLOWED BY THE LEARNED ASSESSIN G OFFICER IN EARLIER ASSESSMENT YEARS. 6. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND IN FACT 111 LIMITING THE CREDIT FOR TAX DEDUCTED AT SOURCE TO RS 32 389 317/ - AS AGAINST RS 39 038 743 CLAIMED BY THE APPELLANT IN THE RETUR N OF INCOME DESPITE SPECIFIC DIRECTION IN THIS REGARD B Y THE HON'BLE DRP. 7. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND IN FACT IN I NITIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AGAINST THE APPELLANT. 8. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND IN FACT IN L EVYING INTEREST UNDER SECTION 234B AND SECTION 234D OF THE ACT. 9.1 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND IN FACT IN L EVYING INTEREST UNDER SECTION 234C OF THE ACT IN THE COMPUTATION SH EET DESPITE THE FACT THAT THE ASSESSMENT ORDER DOES NOT SPECIFY FOR SUCH LEVY. 9.2 WITHOUT PREJUDICE BASED ON THE FACTS AND CIRC UMSTANCES OF THE CASE THE LEARNED ASSESSING OFFICER HAS ERRED IN LA W AND IN FACT IN LEVYING INTEREST UNDER SECTION 234C OF THE ACT A T A HIGHER ITA NO. 5801/DEL/2010 7 AMOUNT AS AGAINST THE AMOUNT OF INTEREST OFFERED BY THE APPELLANT IN THE RETURN OF INCOME COMPUTED ON THE R ETURNED INCOME. 10. BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE HON'BLE DRP HAS ERRED IN LAW AND IN FACT IN CONFIRMING UNL ESS OTHERWISE MENTIONED ALL THE AFORESAID ADDITIONS/ D ISALLOWANCES PROPOSED BY THE LEARNED ASSESSING OFFICER IN THE DR AFT ASSESSMENT ORDER WITHOUT ASSIGNING ANY DETAILED RE ASON. THE APPELLANT CRAVES FOR LEAVE TO ADD AMEND VARY OMIT OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL A T ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. THE ASSESSEE HAS MOVED AN APPLICATION FOR ADMISS ION OF TWO ADDITIONAL GROUNDS WHICH READ AS UNDER:- 1. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ W ITH SECTION 144C OF THE INCOME-TAX ACT 1961 (ACT) IS ILLEGAL BAD IN LAW AND WITHOUT JURISDICTION. 2. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED ASSESSING OFFICER HAS ERRED IN COMPLETING T HE ASSESSMENT ON THE NON-EXISTING AMALGAMATINGENTITY I NSTEAD OF THE AMALGAMATED / SUCCESSOR COMPANY. HENCE THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ W ITH SECTION 144C OF THE ACT IS VOID AB-INITIO AND THE S AME IS LIABLE TO BE QUASHED. 4. THE BRIEF FACTS OF THE CASE ARE AS UNDER:- THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF SOFTWARE DEVELOPMENT SERVICES. THE RETURN OF INCOME FOR ITA NO. 5801/DEL/2010 8 THE ASSESSMENT YEAR 2006-07 WAS FILED ON 29.11.2006 DECLARING AN INCOME OF RS. 28 52 36 663/-. IN COURS E OF THE ASSESSMENT PROCEEDINGS A REFERENCE WAS MADE BY THE ASSESSING OFFICER (AO) TO THE TRANSFER PRICING OFFICER (TPO) OF THE INTERNATIONAL TRANSACTIONS WITH THE ASSESSEE'S ASSOCIATED ENTERPRISE (AE). AN ORDER WAS PASSED BY THE TPO U/S 92CA ON 29.10.2009 DETERMININ G THE ALP OF THE INTERNATIONAL TRANSACTIONS RS. 150 19 55 712/- AND THE ADJUSTMENT REQUIRED TO BE M ADE U/S 92CA AT RS. 814 15 61 720/-. IN THE DRAFT ASSE SSMENT ORDER PASSED BY THE AO ON 29.12.2009 THE AO HAS COMPUTED ASSESSEE'S TOTAL INCOME AT RS.53 99 25 657 /-. APART FROM THE ADJUSTMENT MADE U/S 92CA ON BASIS OF THE TPO'S ORDER THE AO HAS RECOMPUTED THE DEDUCTION ALLOWABLE U/S 10A OF THE ACT 1961 AT RS. 10 05 44 163/ AFTER REDUCING DATA LINK CHARGES OF RS. 53 34 082/- FOR DELIVERY OF COMPUTER SOFTWARE OUTSIDE INDIA. THE AO HAS ALSO ADDED AN AMOUNT OF RS. 10 84 21 19/- U/S 41(1) (A) OF THE I.T. ACT 1961 AS REMISSION OF A TRADING LIABI LITY. 5. AGAINST THE ABOVE ORDER THE ASSESSEE FILED THE OBJECTIONS BEFORE THE DRP. ON MAJORITY OF THE ISSUES THE DRP A GREED WITH THE T.P.O. PURSUANT TO THE DRPS DIRECTIONS THE AO COMP UTED THE TAXABLE INCOME AT RS. 53 55 74 554/-. THIS INCLUDE D TRANSFER PRICING ADJUSTMENT OF RS. 14 08 10 625/-. 6. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L 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 MERG ED WITH THE NOKIA SIEMENS NETWORK PVT LTD. ON ACCOUNT OF THE OR DER OF THE ITA NO. 5801/DEL/2010 9 HONBLE HIGH COURT DATED 9.1.2009 UNDER WHICH THE M ERGER TOOK PLACE WITH EFFECT FROM 1.4.2008. THEREFORE THE COM PANY HAS ASSESSED CEASED TO EXIST ON 1.4.2008. THE ASSESSM ENT ORDER WAS PASSED ON 28.10.2010 MUCH AFTER TO THIS DATE OF ME RGER. 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 UND ER:- MAY 25 2009 THE PUBLIC RELATION OFFICER C.R. BUILDING QUEENS ROAD BANGALORE DEAR SIR RE: RE: RE: RE: NOKIA SIEMENS NETWORKS INDIA PRIVATE LIMITED (F ORMERLY 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 INCORPORATED ON DECEMBER 17 1 993 UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 WITH ITS REGI STERED OFFICE AT 10TH FLOOR RAHEJA TOWERS 26-27 M.G. ROAD BANGALORE - 560 001. DETAILS OF TAX OFFICERS HAVE JURISDICTION OVER NSNIPL IN BANGALORE ARE AS FOLLOWS: THE COMMISSIONER OF INCOME TAX - III BANGALORE THE COMMISSIONER OF INCOME-TAX (APPEALS) - IV BANG ALORE THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE - 12( 2) BANGALORE WE WISH TO INFORM YOU THAT PURSUANT TO THE ORDER OF THE HONBLE HIGH COURT AT KARNATAKA NSNIPL HAS MERGED WITH NOKIA SI EMENS NETWORKS PRIVATE LIMITED (NSN INDIA) A COMPANY INCORPORAT ED UNDER THE COMPANIES ACT 1956 WITH ITS REGISTERED OFFICE AT 2 ND FLOOR COMMERCIAL PLAZA RADISSON COMPLEX NATIONAL HIGHWAY - 8 NEW DELHI -110037 WITH EFFECT FROM APRIL 1 2008. ITA NO. 5801/DEL/2010 10 IN VIEW OF THE ABOVE WE REQUEST YOU TO PASS AN ORD ER UNDER SECTION 127 OF THE ACT DIRECTING TRANSFER OF INCOME-TAX FILES O F NSNIPL FROM BANGALORE TO THE JURISDICTION OF NSN INDIA IN NEW DELHI AS FO LLOWS: THE COMMISSIONER OF INCOME TAX - V NEW DELHI THE COMMISSIONER OF INCOME-TAX (APPEALS) - XVI NEW DELHI DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 13(1) NE W DELHI. IN THIS CONNECTION PLEASE FIND ENCLOSED THE FOLLOW ING DOCUMENTS: COPY OF THE ORDER OF THE HONBLE HIGH COURT AT KARN ATAKA DATED JANUARY 9 2009 APPROVING MERGER OF NSNIPL WITH NSN INDIA ( RECEIVED ON JANUARY 23 2009) ENCLOSED AS ANNEXURE 1. ANNEXURE 1. ANNEXURE 1. ANNEXURE 1. COPY OF FORM NUMBER - 21 FILED FOR REGISTRATION OF THE AFORESAID ORDER WITH THE REGISTRAR OF COMPANIES ENCLOSED AS ANNEXU RE 2 ANNEXURE 2 ANNEXURE 2 ANNEXURE 2. WE REQUEST YOU TO TAKE THE ABOVE ON RECORD AND TRAN SFER ALL INCOME TAX FILES RELATING TO NSNIPL TO THE RELEVANT INCOME TAX AUTHORITIES IN NEW DELHI. WE SHALL BE PLEASED TO ANSWER ANY QUESTIONS OR PROV IDE ANY CLARIFICATIONS THAT YOU MAY HAVE IN THIS REGARD. YOURS FAITHFULLY FOR NOKIA SIEMENS NETWORKS PRIVATE LIMITED AUTHORISED SIGNATORY COPY TO: (1) THE COMMISSIONER OF INCOME TAX - III BANGAL ORE (2) THE COMMISSIONER OF INCOME-TAX (APPEALS) - III BANGALORE (3) THE COMMISSIONER OF INCOME-TAX (APPEALS) - IV BANGALORE (4) THE ADDITIONAL COMMISSIONER OF INCOME TAX RANGE 12 BANGALORE (5) THE DEPUTY COMMISSIONER OF INCOME TAX CIRCL E - 12(2) BANGALORE ITA NO. 5801/DEL/2010 11 (6) THE CHIEF COMMISSIONER OF INCOME TAX -V NEW DELHI (7) THE COMMISSIONER OF INCOME TAX - V NEW DELH I (8) THE DEPUTY COMMISSIONER OF INCOME TAX CIRCL E 13(1) NEW DELHI ENCL: AS ABOVE 7.1 LD. COUNSEL DREW OUR ATTENTION TO THE COPY OF THE HONBLE HIGH COURT DATED 9.1.2009 PLACED IN PAPER BOOK NO. C AT PAGES NO. 6 TO 38. IN THIS ORDER THE HONBLE HIGH COURT HAS SANCTIONED THE PETITION IN THE CASE OF M/S NOKIA SIEMENS NETWORK INDIA PVT. LTD THE TR ANSFEROR COMPANY SEEKING SANCTION OF AMALGAMATION WITH M/S NOKIA S IEMENS NETWORK PVT. LTD. (TRANSFEREE COMPANY) SO AS TO MAKE THE SAME BI NDING 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 DESPI TE 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 T HE 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. HO WEVER HE SUBMITTED THAT THIS IS A PURELY QUESTION OF LAW. RELIANCE W AS PLACED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONA L THERMAL POWER CORPORATION LTD. VS. CIT (1998) 229 ITR 383. LD. D R OBJECTED THE ADMISSION OF THE ADDITIONAL GROUND. 9. WE HAVE CONSIDERED THE FACTS OF THE CASE. WE FI ND THAT THE FACTS REGARDING THE GROUND ARE AVAILABLE ON THE FILE AND THE ISSUE IS PURELY A ISSUE OF LAW. THEREFORE ADDITIONAL GROUND NO. 2 I S ADMITTED WHICH IS SUFFICIENT TO DEAL WITH THE CONTROVERSY RAISED IN B OTH THE GROUNDS. WE FIND THAT THE ADDITIONAL GROUND RAISES THE ISSUE AS TO W HETHER THE ORDER OF ASSESSMENT IS BAD IN LAW AS IT HAS BEEN FRAMED ON A NONEXISTING ENTITY. ITA NO. 5801/DEL/2010 12 10. IT IS AN ADMITTED POSITION BEFORE US THAT THE A DDITIONAL GROUND AS ADMITTED ABOVE WAS NOT AGITATED BEFORE THE DRP. T HUS WE FIND THAT THE MATTER HAS NEITHER BEEN AGITATED NOR DECIDED BY THE DRP. THEREFORE WE FIND THAT THE APPELLATE PROCESS WILL BE SHORT CIRCU ITED IF THE MATTER IS DECIDED FOR THE FIRST TIME BY US. BOTH THE COUNSE L FAIRLY AGREED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE DRP TO HE AR THE ASSESSEE IN THE MATTER AND DECIDE AS PER LAW. WE FIND THAT IN AN ANALOGICAL SITUATION IN THE CASE OF ADOBE SOFTWARE INDIA PVT. LTD. VS. ADD L. CIT IN ITA NO. 4061/DEL/2010 (A.Y. 2006-07) THE TRIBUNAL HAS ADJ UDICATED THE ISSUE AS UNDER:- 4.1 IT IS AN ADMITTED POSITION BEFORE US THAT THE ADDITIONAL GROUND AS ADMITTED ABOVE WAS NOT AGITA TED BEFORE THE DRP. IT IS ALSO A FACT THAT THE DRP HAS USED THE CORRECT NAME OF THE ASSESSEE. THE CASE OF THE LD. C OUNSEL IS THAT THE ORDER OF THE AO IS BAD IN LAW AS IT HAS BEEN FRAMED ON A NON-EXISTING COMPANY. AS AGAINST THE AFORESAID THE CASE OF THE LD. DR IS THAT IT IS MERELY AN IRREGULA RITY WHICH IS CURABLE HAVING REGARD TO THE PROVISION CONTAINED IN SECTION 292B OF THE ACT. WE HAVE CONSIDERED THE SUBMISSIONS FROM BOTH THE SIDES. WE FIND THAT THE MATER HAS NEITHER BEEN AGITATED NOR DECIDED BY THE DRP. THEREFORE TH E APPELLATE PROCESS WILL BE SHORT CIRCUITED IF THE MA TTER IS DECIDED FOR THE FIRST TIME BY US. ACCORDINGLY THE MATTER IS RESTORED TO THE FILE OF THE DRP TO HEAR THE ASSESSE E IN THE MATTER AND DECIDE IT AS PER LAW. 11. IN THE BACKGROUND OF THE AFORESAID DISCUSSION A ND PRECEDENT THE MATTER IS RESTORED TO THE FILE OF THE DRP TO HEAR T HE ASSESSEE ON THIS MATTER AND DECIDE AS PER LAW. ITA NO. 5801/DEL/2010 13 12. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16/4/2014 UP ON CONCLUSION OF HEARING. SD/- SD/- [ [[ [A.D. JAIN] A.D. JAIN] A.D. JAIN] A.D. JAIN] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 16/4/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NO. 5801/DEL/2010 14