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(vii) PSC was set up in India to supervise the supply contract with TATA.

(viii) Certificate of acceptance was signed by Indian subsidiary on behalf of the appellant.

(ix) The appellant has accepted that the license of customized software is not sale, but royalty, and

(x) The appellant has actually earned interest from Vendor Financing and on account of delayed payments by the operators in the relevant previous year.

36. Mr. Parasaran, learned ASG appearing for the Revenue could not controvert the aforesaid pleas of Mr. Syali. We find that the aforesaid errors on facts have crept in. It is primarily for the reason that the Tribunal had taken the facts in the case of Ericsson case and on the presumption that those facts were common the case of Nokia as well and the legal questions in the appeals of Nokia were decided therefore the actual inaccuracy has crept in the fact findings of the Tribunal. We find justification in the argument of Mr. Syali that the clear cut impact of such assumptions is evident from the fact that findings (i), (iv), (v) and

vii. PSC was set up in India to supervise the supply contract with TATA.

viii. Certificate of acceptance was signed by Indian subsidiary on behalf of the appellant.

ix. The appellant has accepted that the license of customized software is not sale, but royalty, and x. The appellant has actually earned interest from Vendor financing and on account of delayed payments by the operators in the relevant previous year.

36. After noting the aforesaid facts, Hon'ble High Court observed that the finding of fact by the Special Bench specifically with regard to point nos. i, iv, v and vi are purely based on assumption which are completely divorced from the facts for arriving to the conclusion on NIPL being PE. The relevant paragraphs of the Hon'ble High Court have already been incorporated above but for the sake of ready reference same is again reproduced hereunder:-