C/o. B S R & Co. LLP Tax (International Lodha Excelus, 1 Floor st Taxation) 2(1) Apollo Mills Compound Mumbai N.M. Joshi Marg Mahalakshmi Mumbai 400 011 PAN/GIR No.AABCS8516K (Appellant) .. (Respondent) ITA No.2179/Mum/2014 (Assessment Year :200910) Dy. Director of Income Vs. Siemens Aktiengesellshaft Tax (International C/o. B S R & Co. LLP Taxation) 2(1) Lodha Excelus, 1st Floor Mumbai Apollo Mills Compound N.M. Joshi Marg Mahalakshmi Mumbai 400 011 PAN/GIR No.AABCS8516K (Appellant) .. (Respondent) Assessee by Shri P.J. Pardiwala a/w. Nitesh Joshi Revenue by Shri Neehar Ranjan Pandey Date of Hearing 11/03/2024 Date of Pronouncement 07/06/2024 2 ITA No.2153/Mum/2014 & 2179/Mum/2014 Siemens Sktiengesellshaft आदे श / O R D E R PER AMIT SHUKLA (J.M): The aforesaid cross appeals have been filed by the assessee as well as by the department against final assessment order dated 30/01/2014, passed by Dy. Director Income Tax (IT)2(1), Mumbai in pursuance of directions given by the DRP vide order dated 16/12/2013 u/s.144C(5). 2. In both the appeals five issues have been raised by the assessee as well as by the department, which in summary manner is reproduced hereunder: Sr. Issue Grounds Of Appeal reference I. Characterisation of receipts Ground nos. 2 to 5 of the towards software as royalty assessee's appeal 2. Alleged constitution of an AOP Ground nos. 6 to 8 of the between the assessee and assessee's appeal and Siemens Limited in respect of Ground No. 2 and 3 of contract with DMRC the Revenue's appeal 3. Compensation for delayed Ground Nos. 9 to 1 1 of receipt pursuant to Arbitration the assessee's appeal award 4. Transfer pricing adjustment Ground nos. 12 to 19 of the assessee's appeal 5. Assessment of royalty and fees Ground no. I of the for technical services on receipt Revenue's appeal basis 3 ITA No.2153/Mum/2014 & 2179/Mum/2014 Siemens Sktiengesellshaft 3. Besides this, assessee has also raised certain additional grounds on various occasions through letters which are as under: Sr. Issue GOA reference 1. Assessment order is barred by Additional ground no. 1 limitation under Section 144C of filed on 9 March 2020 the Incometax Act, 1961. 2. Assessment order is barred by Additional ground no. 2 limitation under section 153 of filed on 24 November 2022 the Incometax Act, 1961. 3. Final assessment order contrary Additional ground no. 3 to directions of DRP is invalid. filed on 1 7 January 2024 4. The assessee is a nonresident company incorporated and tax resident of Germany. During the relevant previous year assessee has derived income by way of royalty and fee for technical services under various agreements and contracts entered into by its group entities. It has also entered into a contract with Delhi Metro Rail Corporation in consortium alongwith Siemens Ltd which is an Indian group company of the assessee. 5. Ground Nos.25 of the assessee's appeal is with regard to characterization of receipts towards software as 'royalty'. 6. The brief facts are that during the years under consideration assessee received an amount of Rs. 407,769,950/ as consideration for supply of software to Siemens Ltd and its 4 ITA No.2153/Mum/2014 & 2179/Mum/2014 Siemens Sktiengesellshaft affiliate entities. Before the ld. AO assessee stated that the software suppy forms an integral part of the equipment supplied and, th