The Commissioner of Income Tax – International Taxation -1 v. A B SCIEX PTE LTD.

1. These are applications filed on behalf of the appellant/revenue seeking condonation of delay in re-filing the appeals. 1.[1] According to the appellant/asseessee, the delay in re-filing first two appeals (i.e., ITA 800/23 and ITA 801/2023) is 162 days each, while the delay in re-filing ITA 803/2023 is 440 days.

2. In view of the order that we propose to pass, the delay in re-filing in the appeals is condoned.

3. The above-captioned applications are disposed of, in the aforesaid terms. ITA 801/2023 ITA 803/2023

4. These are appeals concerning Assessment Year (AY) 2018-19 [ITA 800/2023], AY 2019-20 [ITA 801/2023] and AY 2017-18 [ITA 803/2023].

5. ITAs 800/2023 and 801/2023 assail a common order passed by the Income Tax Appellate Tribunal [in short, “Tribunal”] dated 26.12.2022, while ITA No. 803/2023 lays challenge to the order dated 29.04.2022 passed by the Tribunal.

6. As a matter of fact, the common order dated 26.12.2022 is pivoted on the Tribunal’s order dated 29.04.2022 rendered qua AY 2017-18.

7. The record shows that two issues arose for consideration before the Tribunal. First, whether the respondent/assessee had a Permanent Establishment (PE) in India. Second, whether the subject transaction was at Arm’s Length and, if it was so, whether any profit could be attributed to the respondent/assessee.

8. The Tribunal has dealt only with the first issue and concluded that the respondent/asseessee neither a fixed place PE nor a dependent agent PE in India. Because the Tribunal reached this conclusion, it observed that the other issue was academic.

9. The record discloses that the respondent/assessee had raised an alternative plea concerning the second issue.

10. In our opinion, it would save time and costs if the Tribunal were to render a view with regard to the second issue as well, which is broadly referred to hereinabove.

11. Therefore, without disturbing the impugned orders passed by the Tribunal, with the consent of counsel for the parties, the above-captioned matters are remitted to the Tribunal for rendering a decision with regard to the second issue.

12. It is made clear that whichever party is aggrieved by the impugned order, as well as the order passed upon remand by the Tribunal, will have liberty to approach the court by way of a statutory appeal.

13. Furthermore, since the instant appeal concerned the impugned orders passed by the Tribunal as and when the appellant/revenue files an appeal, the period spanning between the date when the above-captioned appeals were instituted in this court and the date when the Tribunal passes the order post remand, will not be factored in while calculating the period of limitation.

14. The appeals are disposed of in the aforesaid terms.

15. The Tribunal is requested to dispose of the matter at the earliest, though not later than three (3) months from today.