IN HIGH COURT OF DELHI AT NEW DELHI ITA 622/2017 & CM APPL. 29135/2017 (STAY) ITA 623/2017 & CM APPL. 29137/2017 (STAY) ITA 630/2017 & CM APPL. 29274/2017 (STAY) ITA 631/2017 & CM APPL. 29276/2017 (STAY) ITA 632/2017 & CM APPL. 29278/2017 (STAY) ITA 633/2017 & CM APPL. 29280/2017 (STAY) ITA 658/2017 & CM APPL. 29321/2017 (STAY) ITA 676/2017 & CM APPL. 29472/2017 (STAY) GE NUOVO PIGNONE S.P.A Appellant Through : Mr. Sachit Jolly and Mr. Anirudh Bakhru, Advocates. versus COMMISSIONER OFINCOME TAX (INTERNATIONAL TAXATION), DELHI I Respondent Through : Mr. Ruchir Bhatia, Senior Standing Counsel with Mr. Gaurav Khetrapal, Advocate. CORAM: JUSTICE S. MURALIDHAR JUSTICE PRATHIBA M. SINGH ORDER 13.09.2017 1. These appeals are filed by Assessee under Section 260A of Income Tax Act 1961 (the Act ) impugning common order dated 27th January 2017 passed by Income Tax Appellate Tribunal ( ITAT ) in ITA Nos. 703/Del/2011, 704/Del/2011, 705/Del/2011, 706/Del/2011, 707/Del/2011, 708/Del/2011, 5741/Del/2010, 5542/Del/2011 for Assessment Years ( AY ) 2001-02 to 2008-09 respectively. ITA 622/2017 & connected appeals Page 1 of 5 2. Admit. 3. following question of law is framed for consideration. Whether ITAT overlooked grounds urged by Assessee in its appeals regarding installation Permanent Establishment (PE), ad-hoc attribution between sales and services and taxability of income as fees for technical services, and consequently are appeals before ITAT liable to be restored to file of ITAT for adjudication of said grounds? 4. Having heard learned counsel for parties, Court is of view that above question must be answered in affirmative since indeed ITAT failed to address aforementioned grounds in Assessee s appeals before it. 5. Mr. Ruchir Bhatia, learned Senior Standing Counsel for Revenue, while not disputing above position submitted that Assessee itself had consciously not pressed above grounds before ITAT. He referred to impugned order of ITAT where there is no mention of such ground being argued. 6. However, fact that no mention is made of it by ITAT begs question whether ground was given up by Assessee. That cannot be matter of inference when fact remains that specific grounds have been raised in memo of appeals filed before ITAT by Assessee. only inference that is possible to be drawn is that ITAT failed to address ITA 622/2017 & connected appeals Page 2 of 5 above grounds urged by Assessee in impugned order. 7. It is then submitted by Mr. Bhatia that during pendency of appeals before ITAT, there was interim order requiring group companies of Assessee to make deposit of 75% of demand and there was no such conditional stay order as far as Assessee was concerned. He submitted that attempt by Assessee through present appeals was to avoid meeting demand that has become enforceable as result of dismissal of Assessee s appeals and seek continuation of those proceedings so that interim order may also continue. According to Mr. Bhatia, Assessee would have unfair advantage if appeals were to be restored for ITAT to deal with above grounds. 8. Court finds that above submission is not factually correct. interim order dated 15th February 2013 passed by ITAT covered appeals filed by present Appellant-Assessee as well. Further, Mr. Sachit Jolly, learned counsel appearing for Appellant-Assessee, confirms that, in compliance with said stay order of ITAT, present Appellant- Assessee has, in fact, deposited requisite amount. He points out that stay, therefore, continued during pendency of appeals before ITAT. 9. Lastly, Mr. Bhatia contends that Assessee ought to have filed application under Section 254 (2) of Act before ITAT if, in fact, grounds relating to FTS and profits arising from FTS attributable to PE were not adjudicated upon. While that was possible remedy ITA 622/2017 & connected appeals Page 3 of 5 available to Assessee, present appeals cannot be rejected on that ground. fact remains that ITAT overlooked above grounds urged by Assessee. 10. Consequently, Court while not setting aside impugned order of ITAT in its entirety, sets aside only that portion of impugned order of ITAT that disposes of Assessee s appeals and restores aforementioned appeals of Assessee to file of ITAT for adjudication of aforementioned grounds regarding installation Permanent Establishment (PE), ad-hoc attribution between sales and services and taxability of income as fees for technical services. It is made clear that ITAT is only required to adjudicate above grounds urged by Assessee which were not adjudicated upon by it in impugned order and no other ground. 11. However, after decision of ITAT in terms of this order, it would be open to Assessee, if so warranted, to file appeals before this Court challenging said order of ITAT as well as impugned order of ITAT challenged in present appeals insofar as it decides other grounds against Assessee. 12. appeals of Appellant-Assessee before ITAT, being ITA Nos. 703/Del/2011, 704/Del/2011, 705/Del/2011, 706/Del/2011, 707/Del/2011, 708/Del/2011, 5741/Del/2010 and 5542/Del/2011, will now be listed before ITAT on 24th October 2017 for directions. ITAT will endeavour to pass order on above grounds after hearing parties, within period ITA 622/2017 & connected appeals Page 4 of 5 of three months thereafter. Till such time, interim order dated 15th February 2013, 19th August 2013 and 18th February 2014 of ITAT as affirmed by this Court by its order dated 8th December 2014 in W.P. (C) No. 6255/2014 shall continue. 13. question framed is answered in affirmative. appeals and pending applications are disposed of in above terms. 14. Dasti. S. MURALIDHAR, J. PRATHIBA M. SINGH, J. SEPTEMBER 13, 2017/j ITA 622/2017 & connected appeals Page 5 of 5 Ge Nuovo Pignone S.P.A v. Commissioner of income-tax (International Taxation), DelhiI