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TMI Blog2025 (3) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned reopening notice will have to be set aside and is hereby set aside. Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the third proviso to Section 147 of the Act, prima facie there appears to be a bar in issuing the impugned Notice. Besides other contentions have also been raised on behalf of the Petitioner to the effect that there was no independent application of mind by the author of the impugned Notice on the alleged tangible material for the purpose of coming to the conclusion that there is an AOP constituted of Petitioner Nos.1 and 2 in existence. The reasons recorded in support of the impugned Notice prima facie indicate that it has been issued only on the basis of an opinion formed by some other person and not on independent application of mind by the Assessing officer. These are matters which would require consideration at the time of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Delhi High Court in the case of Linde AG which has been discussed in detail in the foregoing paragraphs including the judgment of AAR. From the perusal of the MOU dated 11/09/2006, it is clear that the parties had come together only with a view to participate in the tender where the scope of the work to be executed by each of the parties is separate and independent. There is neither any joint management nor any joint execution of the work. Further, there is no sharing of profits and losses between the parties and each of the party is entitled to the gross consideration to be received by them for executing their separate part of the work. Lastly, it has been agreed that though both the parties are jointly and severally liable to DMRC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 43. Lastly, Clause 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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