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PER BENCH, These are cross appeals by the assessee and Revenue arising out of the separate appellate orders. Since, the issues are common and connected and all the appeals were heard together these are being consolidated and disposed off together for the sake of convenience.

2. Brief facts of the case are that Adobe Systems Software Ireland Limited ('the company or 'ADIR') is a company incorporated under the laws of Ireland and is a tax resident of Ireland in accordance with Double Taxation Avoidance Agreement ('DTAA' or 'tax treaty') between India and Ireland. Therefore, it is entitled to the beneficial provisions of the India Ireland DTAA. ADIR is a wholly owned subsidiary of Adobe Software Trading Company Limited ('ASTCL') Adobe Systems Incorporated ('Adobe USA') is the ultimate parent company of ADIR. Adobe USA has a subsidiary in India known as Adobe Systems India Pvt. Ltd. ('Adobe India') that provides marketing support services to ADIR. The assessee is engaged in the distribution of shrink-wrapped/off the shelf/electronic download computer software ('Adobe Products') outside of North America including India and it supplies the Adobe Products to its non-exclusive Indian distributors on a principal to principal basis. As per the submission of the assessee, it purchases the software built by the third party turnkey manufacturers. No further customization or modification takes place by the assessee. The assessee itself does not undertake any R & D, development and manufacturing of software. The distributors act as the supplier of the assessee in India for selling the Adobe products in India.

Adobe Ireland does not assume any responsibility for statement, promises or warranties made by Adobe India or any of its agents or employees with respect to Adobe Application Products, on its behalf. Additionally, Adobe India has agreed to indemnify and save harmless the Appellant against any claims that may arise from such representations. Furthermore, Adobe India has represented that it shall not undertake any liability on behalf of the Appellant or accept any payments from Distributors or other customers unless authorities to do so by Adobe Ireland, (please refer to clause 3.34 "Indemnity for Representations", and 3.3.5 (d) and 3.3.5 (e) "Adobe India Covenants" of the marketing support services agreement between Adobe Ireland and Adobe India enclosed at pages 158 to 198 of the convenience compilation) • Even assuming without admitting that Adobe India is an agent of Adobe Ireland, it would be considered as an independent agent since it is not legally and economically dependent upon Adobe Ireland It is pertinent to note that both the conditions i.e. economic dependence and legal dependence have to be satisfied cumulatively to be construed as a dependent agent.

Thus, for the years under consideration as well as future years. even it is assumed that Adobe India has habitually played a principal role leading to conclusion of contracts by Adobe Ireland, it should not lead to the conclusion that Adobe Ireland has a dependent agent PE in India.

• The inference drawn by the Ld. CIT(A) that the activities actually performed by Adobe India are wider in nature as against the activities pointed out in the contract between Adobe Ireland and Adobe India and Adobe India's transfer pricing report is based on an incorrect interpretation of the emails between Adobe India and Adobe Ireland's distributors > It is humbly submitted that the Ld. CIT(A) has relied upon copies of email correspondences between Adobe India and the distributors of the Appellant to erroneously draw a negative conclusion that the Appellant has a dependent agent PE in India in the form of Adobe India.

15. Further, functions attributed to the Adobe India by the Revenue is also based upon the observations of the Ld. CIT(A) for Assessment Year 2010-11 primarily. The allegation of the Revenue is that the assessee was asked to produce dump of the emails correspondence between Adobe India and Adobe Ireland to deep dive to the activities so as to ascertain the clear cut facts to decide about PE. However, it was noted by the Ld. CIT(A) that after couple of months of gap, the assessee produced only sample certain e-mails. On the basis of these e-mails of few instances, the Ld. CIT(A) inferred that quotes offered by the distributors to channel partners are after discussion with Adobe India. The reasoning was that orders are delivered after seeking confirmation from Adobe India resources. Further, one of the e-mails is said to be demonstrating, the control and monitoring by Adobe India of distributors in meeting assigned targets. Basing upon such few e-mails, the Revenue has concluded that activities actually performed by Adobe India are wider in nature as against the activities pointed out in the contract and transfer pricing report. We find that the above observations have been cogently rebutted by the ld. counsel for the assessee. As regards the few e-mails that have been referred they are only also marked to the Adobe India personnel which has been said to be done only for the sake of keeping the Adobe India in the loop. In none of the e-mail referred Adobe India has actually provided guidance and directions regarding the quotes. This is a fiction of imagination by the Revenue. Hence, the functions attributed on the basis of these e-mails are not at all enlarging the scope of actual functions performed by the AE than as per the agreement and the transfer pricing report. The plea that the email dump has not been provided is a peculiar plea. In Adobe India T.P. adjustment no such issue has been recorded. It is common knowledge e-mail correspondence is a two way process. So when everything was found in order in Adobe India T.P. Adjustment, hence, it cannot be said that Revenue did not have complete access to all the e-mails between Adobe India and Adobe Ireland. The Ld. CIT(A) is also of view that the assets client list gives rise to in intangible assets has also no basis. No cogent case has been made out that Adobe India was provided with right to any intangible asset belonging to the assessee i.e. Adobe Ireland. The issue raised by the Ld. CIT(A) by relying upon legal dispute infringement of copy right in India being looked after by Adobe India/Adobe Ireland is also without any basis as it is Adobe USA, the IP owner which handles the legal matters relating to infringement of brand, copy right matters and other related actions to be undertaken in all jurisdiction in which the Adobe operates including India. Adobe USA is authorised in monitoring to Indian operations and their legal counsels handles the matters there from.