TMI Blog2012 (10) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... ation proposed in the draft order. The DRP is not entitled to make out entirely a new case. It would meet the ends of justice if the orders of the lower authorities are set aside and the matter is restored to the file of the Assessing Officer directing the AO to allow adequate opportunity of being heard to the assessee - in favour of assessee for statistical purposes. - ITA No.376/Del/2012 - - - Dated:- 12-10-2012 - SHRI G.D. AGRAWAL, AND SHRI A.D. JAIN, JJ. Appellant by : Shri Arijit Chakravarty, Advocate and Ms. Priyanka Genka, CA. Respondent by : Shri Debjoti Das, CIT-DR. ORDER PER G.D. AGRAWAL, VP : This appeal by the assessee is directed against the order of learned DRP-II, New Delhi dated 30th Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Indian Companies Act, 1956, conducting its own business and bearing all the risks and rewards of the Indian business. 3.2 That on the facts and circumstances of the case and in law, the ld. AO has failed to satisfy the dependent agency conditions as prescribed in Article 5 of Double Taxation Avoidance Agreement ( DTAA ) between India and Netherlands before concluding that SSPL constitutes a dependent agent PE of Logined in India. 4. The ld.AO/DRP has grossly erred on facts and circumstances of the case and in law by not appreciating the provisions of DTAA between India and Netherlands and by holding that suo moto filing of return in the capacity of an agent by itself constitutes a dependent agent PE. 5. The ld.AO has erred o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V does not have any taxable income in India. That the Assessing Officer in the draft assessment order dated 30th December, 2010 treated the entire receipt from sale of software amounting to Rs.13.80 crores as fees for technical services. That on appeal by the assessee, the DRP agreed with the assessee that it is not the fees for technical services. However, the DRP further arrived at the conclusion that SSPL is a dependent agent and, therefore, the entire receipt is taxable in India not as fees for technical services but as business income. That in the final assessment order, the Assessing Officer has treated the entire receipt from sale of software as business income of LBV. The learned counsel argued at length. However, his arguments can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bench does not agree with the assessee s contention that its income is to be assessed at nil, the matter should be set aside either to the file of the DRP or to the Assessing Officer with a direction to give adequate opportunity to the assessee so that the entire issue can be explained in detail to the lower authorities. 5. The learned DR vehemently objected to the determination of income at nil. However, he has no objection for setting aside of the matter to the file of the Assessing Officer for making the assessment de novo. 6. After considering the arguments of both the sides and the facts of the case, in our opinion, it would meet the ends of justice if the orders of the lower authorities are set aside and the matter is restored ..... X X X X Extracts X X X X X X X X Extracts X X X X
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