IMMARSAT GLOBAL LTD., MUMBAI V. DCIT (IT) 2(2)(1), MUMBAI

MA 15/MUM/2023

AI Insights

Inmarsat Global Limited filed a Miscellaneous Application seeking rectification of mistakes in the Tribunal's earlier order regarding the assessment year 2018-19. The primary contention was the non-adjudication of Ground Nos. 6 and 7, which pertained to the Assessing Officer's invocation of Rule 10 of the Income Tax Rules, estimating the income of the assessee at 30% of gross receipts if the income was held as business income rather than royalty. The Tribunal acknowledged the oversight and proceeded to adjudicate on these grounds, ultimately finding in favor of the assessee based on precedents set in earlier assessment years where it was established that the LO and LES did not constitute a PE in India.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123725 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 08-03-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 09-01-2023
• Other Referred Cases: DIT vs Mitsui & Co. Ltd., [2017] 84 taxmann.com 3 (Delhi)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief
• Section: 144C; 64; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “I”, MUMBAI BEFORE SHRI AMIT SHUKLA, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER MA.No. 15/MUM/2023 [ARISING OUT OF ITA NO. 626/MUM/2022 (A.Y: 2018-19)] Inmarsat Global Limited Ernst & Young LLP 14 th Floor, The Ruby 29 Senapati Bapat Marg Dadar (w), Mumbai – 400028 PAN: AAACI6098K v. DCIT (IT) – 2(2)(1) Room No. 1722, 17 th Floor Air India Building, Nariman Point Mumbai – 400021 (Appellant) (Respondent) Assessee Represented by : Ms. Aarti Sathe & Ms. Aasavari Kadam Department Represented by : Shri Soumendu Kumar Dash Date of Hearing : 09.03.2023 Date of Pronouncement : 15.03.2023 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application assessee is seeking for rectification of certain mistakes crept in the order passed by the Tribunal in ITA.No. 626/Mum/2022 dated 22.08.2022 for the A.Y. 2018-19. 2 MA.No. 15/MUM/2023 Inmarsat Global Limited 2. At the time of hearing, Ld. AR of the assessee submitted that ITAT adjudicated on Ground Nos. 8 and 9 and allowed the appeal filed by the assessee by relying on the decision in assessee’s own case for the A.Y.2017-18 in ITA.No.1031/Mum/2021 without considering the fact that the grounds are different in A.Y.2018-19 as compared to A.Y.2017-18. 3. Ld.AR submitted that assessee has specifically raised Ground No. 6 and 7 considering the fact that Assessing Officer in Para No. 10 of the Assessment Order has invoked Rule No. 10 of I.T. Rules and estimated the income of the assessee @30% of the gross receipts by relying on the earlier Assessment Orders on without prejudice basis. He specifically observed that this part of the order will be operational if the assessee’s income is held not to be royalty but business income by the Appellate authorities during the course of appeals. By bringing the observations of the Assessing Officer, she submitted that even though this issue was raised by the assessee before DRP and Hon'ble DRP passed a direction for this assessment year and held that LO constituted a PE of Inmarsat in India. She submitted that the LO has in fact ceased to be a place of business of the assessee in India. However, while holding LO to be PE of the assessee in India, the Hon'ble DRP merely relied on the directions passed by it for the preceding assessment year i.e. A.Y. 2017-18. She 3 MA.No. 15/MUM/2023 Inmarsat Global Limited prayed that by not adjudicating Ground No. 6 having peculiar findings of the Assessing Officer in the current assessment year constitute a mistake apparent on record. She prayed that the above mistake maybe rectified by adjudicating on Ground No. 6 raised on the facts available on record. 4. On the other hand, Ld.DR submitted that there is no mistake apparent on record. 5. Considered the rival submissions and material placed on record, it is fact on record that the bench has decided the issue on royalty in favour of the assessee by relying on the orders passed by the Coordinate Bench in A.Y. 2017-18. However, in the present appeal the Assessing Officer has passed the Assessment Order with a without prejudice basis he has invoked Rule 10 of the I.T. Rules to tax the assessee @30% of the gross receipts in case the decision in appellate proceedings are in favour of the assessee with regard to royalty. Against this, assessee has filed Ground No. 6 and due to oversight and since the issue in royalty is in favour of the assessee, we proceeded to adjudicate the other grounds without adjudicating on Ground No. 6 raised by the assessee. Since it has material impact on the appellate 4 MA.No. 15/MUM/2023 Inmarsat Global Limited order we deem it fit and proper to recall the order to adjudicate the Ground Nos. 6 & 7. Since both the parties agreed to submit and make representation on the merits on the issue raised by assessee in Ground Nos. 6 & 7, accordingly, we proceeded to hear and adjudicate the same in separate order. 6. In the result, the Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open court on 15 th March, 2023. Sd/- Sd/- (AMIT SHUKLA) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 15/03/2023 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “I”, MUMBAI BEFORE SHRI AMIT SHUKLA, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited Ernst & Young LLP 14 th Floor, The Ruby 29 Senapati Bapat Marg Dadar (w), Mumbai – 400028 PAN: AAACI6098K v. DCIT (IT) – 2(2)(1) Room No. 1722, 17 th Floor Air India Building, Nariman Point Mumbai – 400021 (Appellant) (Respondent) Assessee Represented by : Ms. Aarti Sathe & Ms. Aasavari Kadam Department Represented by : Shri Soumendu Kumar Dash Date of Hearing : 09.03.2023 Date of Pronouncement : 15.03.2023 O R D E R PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against the final Assessment Order dated 16.02.2022 and against the directions of Dispute Resolution Panel order dated 24.01.2022 passed u/s. 144C of the Income-tax Act, 1961 (in short “Act”). 2 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited 2. Subsequent to M.A. No. 15/Mum/2023 the assessee has raised the issue of non adjudication of Ground Nos. 6 and 7 of grounds of appeal, with reference to the finding given by the Assessing Officer in Para No. 10 of the Assessment Order, which is the alternative and fall back of estimating the income of the assessee under Rule 10 of I.T. Rules in case assessee succeeds the issue of “royalty” in any appellate forum, the Assessing Officer intended to apply the Rule 10 of I.T.Rules to estimate the income of the assessee @30% of the gross receipts. Since in the earlier order the bench has adjudicated only the issue of royalty this issue of Rule 10 applicability is not adjudicated accordingly the Miscellaneous Application was allowed in the case of assessee. 3. At the time of hearing, Ld. AR submitted that assessee has specifically raised Ground No. 6 and 7 considering the fact that Assessing Officer in Para No. 10 of the Assessment Order has invoked Rule No. 10 of I.T. Rules and estimated the income of the assessee @30% of the gross receipts by relying on the earlier Assessment Orders on without prejudice basis. He specifically observed that this part of the order will be operational if the assessee’s income is held not to be royalty but business income by the Appellate authorities during the course of appeals. By bringing the observations of the Assessing 3 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited Officer, she submitted that even though this issue was raised by the assessee before DRP and Hon'ble DRP passed a direction for this assessment year and held that LO constituted a PE of Inmarsat in India. She submitted that the LO has in fact ceased to be a place of business of the assessee in India. However, while holding LO to be PE of the assessee in India, the Hon'ble DRP merely relied on the directions passed by it for the preceding assessment year i.e. A.Y. 2017-18. She submitted that this issue is settled in favour of the assessee that it does not have “PE" in India. 4. On the other hand, Ld.DR submitted that since there is no finding given by the Assessing Officer with regard to PE this issue may be remitted back to the file of the Assessing Officer to give a clear finding on the PE. 5. In the rejoinder, Ld. AR of the assessee, however, objected to the above proposal and submitted that this issue is covered in favour of the assessee and she brought to our notice the findings of the ITAT in A.Y.2017-18. 4 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited 6. Considered the rival submissions and material placed on record and we observe that the issue on PE is already adjudicated by the Coordinate Bench in A.Y. 2017-18, we deem it fit and proper to follow the same. Accordingly, we reproduce the findings of the Coordinate Bench as under: - “7. We find that these issues are also covered in favour of the assessee by orders of the coordinate benches in assessee’s own case in the preceding years. We may in this regard referred to the following observation made by the co-ordinate bench vide order dated 23.10.2020 in the order for the assessment year 2015-16. 11. As the facts and the issue involved in the case before us remains the same as was there before the Tribunal in the preceding years, therefore, we respectfully follow the view therein taken, and conclude, that the amounts received by the assessee from TCL for providing Satellite Telecommunication Services is not to be held as royalty in its hands. The Grounds of appeal Nos. 2 to 5 are allowed in terms of our aforesaid observations. 12. We shall now deal with the issue as to whether or not the assessee had a PE in India during the year under consideration. As observed by us hereinabove, the A.O/DRP had concluded that the Land Earth Station (LES) constituted a PE of the assessee in India. It has been the claim of the assessee before the lower authorities that as the LES was owned and operated by TCL and not by the assessee, therefore, on the said count it could not have been held to have constituted a PE of the assessee in India. Also, as is discernible from the orders of the lower authorities, the A.O/DRP had observed that the Liaison Office (LO) constituted a PE of the assessee in India. As observed by us hereinabove, it was the claim of the assessee that as the LO had not carried out any activities in India, it could therefore not be treated as the assessee‟s PE in India. The ld. A.R submitted that the factual position qua the issue as to whether the assessee had a PE in India on both of the aforesaid counts had been looked into by the Tribunal while disposing off the appeals of the assessee for the preceding years i.e A.Y. 2007-08 to A.Y. 2012-13, vide its order dated 12.12.2018. The ld. A.R taking us through the aforesaid 5 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited order of the Tribunal in context of the issue under consideration submitted, that as the factual matrix during the year under consideration remained the same as was there before the Tribunal in the aforementioned preceding years, hence, the view therein taken by the Tribunal that the assessee did not have a PE in India would equally apply for adjudicating the said issue for the year under consideration. 13. Per contra, the ld. D.R relied on the orders of the lower authorities. However, the ld. D.R could not controvert the claim of the assessee‟s counsel that the issue herein involved was squarely covered by the orders passed by the Tribunal in the assessee‟s own case for the preceding years. 14. We find that the lower authorities had concluded that the assessee had a PE in India on two grounds, viz. (i) that the Liaison Office (LO) of the assessee constituted its PE in India; and (ii) that the Land Earth Stations (LES) constituted a PE of the assessee in India. We find that the factual position pertaining to the aforesaid two aspects on the basis of which a view had been taken by the lower authorities that the assessee had a PE in India remains the same as was there in the preceding years, and had been looked into by the Tribunal at length while disposing off the appeals of the assessee for the said respective years. In fact, a perusal of the order of the DRP reveals that the view taken by the A.O that the assessee had a PE in India was endorsed by the DRP, for the reason, that its predecessor panel had while disposing off the assessee‟s objections for A.Y. 2014-15 upheld the AO‟s order. In the backdrop of the aforesaid facts, we are of the considered view that the basis and the facts therein involved for concluding that the assessee had a PE in India during the year under consideration had not witnessed any change as in comparison to the facts which were there in its case for the preceding years. On a perusal of the order of the Tribunal for A.Y. 2007-08 to A.Y. 2012- 13, we find, that after exhaustive deliberations the Tribunal had concluded that the assessee did not had a PE in India, observing as under: “10. So far as Ground of appeal no. 4 is concerned, the same deals with the grievance of the assessee against the income-tax authorities holding that it has a PE in India. In this context, the relevant facts are that the Assessing Officer noted that assessee owned Space Segment Monitoring System (SSMS), which was equipment installed / located at Arvi, Maharashtra. The Assessing Officer further notes 6 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited that the Land Earth Station (LES) of VSNL/TCL is also located at this place and that the SSMS equipment plays a critical role in providing telecommunication services to the Land Earth Service Operator (LESO), which is VSNL. The Assessing Officer noted that the said equipment is installed and maintained by the assessee and that assessee also has a liaison office in India. The Assessing Officer notes that the activities of the liaison office cannot be “said to be just a mere liaisoning work in India”. The Assessing Officer further notes that the employees/staff of the liaison office provide various services to the assessee company in connection with the contract with VSNL. Therefore, the Assessing Officer concluded that the location of SSMS equipment in India and the presence of the liaison office in India constituted a PE of the assessee in India and, therefore, the payment received by the assessee from VSNL was attributable to the assessee‟s PE in India. Thus, notwithstanding his stand that the receipts from VSNL were in the nature of Royalty, the Assessing Officer held that even going by Article 7 of the India- UK DTAA (by which such receipts are treated as business profits), because of the presence of a PE in India, income arising from receipts from VSNL was attributable to a „business connection‟ in India. Therefore, he applied Rule 10 of the Income Tax Rules, 1962 and estimated the profit of the PE at 30% of the gross receipts. The aforesaid addition proposed by the Assessing Officer was objected to by the assessee before the DRP by raising various objections. The DRP, however, affirmed the ultimate conclusion of the Assessing Officer to the effect that assessee has a PE in India. In coming to such a decision, the DRP has confined its observation to the presence of the liaison office of the assessee in India and not given any finding on the aspect of location of SSMS equipment. As per the DRP, the activities of the liaison office could not be “considered to be preparatory and ancillary, as the basic job of the office to act as a fixed place with respect to the final agreements being entered into by the clients like ISRO, VSNL with the assessee”. For the said reason, the DRP affirmed the stand of the Assessing Officer that there existed a PE of the assessee in India. 7 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited 11. Against the aforesaid, the learned representative for the assessee vehemently pointed out that since beginning and upto the Assessment Year 2006-07, there has been no finding by the income-tax authorities that either the liaison office or the SSMS equipment constituted a PE in India although the arrangement with VSNL/TCL was the same as in the instant years. On the point of law, the learned representative for the assessee relied on the judgment of the Hon'ble Delhi High Court in the case of DIT vs Mitsui & Co. Ltd., [2017] 84 taxmann.com 3 (Delhi) to point out that the onus was on the Revenue to show that any activity in the nature of business or trading was carried out in the liaison office. It was pointed out that the liaison office of the assessee has been in existence since it was initially approved by the RBI vide its permission dated 20.10.1999, a copy of which has been placed in the Paper Book at pages 39 to 42. It has been further pointed out that the approval granted by the RBI has been renewed from time to time and so far as the captioned period is concerned, the approval of the RBI vide order dated 10.10.2008 subsists. It is pointed out that the very fact that the RBI continues to accord approval for the liaison office shows that there is no activity of trading, commercial or industrial nature which is carried out so as to treat such liaison office as a PE. 12. So far as the reference made by the lower authorities to SSMS equipment is concerned, the learned representative for the assessee pointed out that in the past years also such equipment was existing, but no adverse view has been taken and, in any case, so far as the instant period is concerned, the assessee has foregone the use of such equipment for providing services. In this context, our attention has been drawn to page 64of the Paper Book wherein a communication dated 28.04.2005 is placed which is addressed to VSNL whereby it is informed that the facility of SSMS equipment would not be used for providing services w.e.f. 17.06.2005. It has been pointed out that such change was on account of an operational requirement as assessee has launched its 4th generation satellite which was thereafter used to provide the services which were 8 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited earlier being provided by the use of SSMS equipment. 13. It was, therefore, contended that it is wholly erroneous on the part of the lower authorities to hold that the liaison office and SSMS equipment constituted a PE of the assessee in India. 14. On the other hand, the ld. DR appearing for the Revenue defended the stand of the lower authorities by placing reliance on the respective orders. Further, insofar as the assessment years 2010-11 to 2012-13 is concerned, the ld. DR raised a further point based on the observation of the DRP. In the aforesaid three years, the Assessing Officer held the existence of a PE in India on the basis of the existence of the liaison office and location of SSMS equipment. On the other hand, the DRP in Assessment Years 2007- 08 to 2009-10 concluded the existence of a PE on the basis of existence of liaison office whereas for Assessment Years 2010-11 to 2012-13, the DRP has based its decision on the existence of liaison office as well as the use of LES by the assessee for providing services. In this manner, the ld. DR has defended the stand of the lower authorities. 15. We have carefully considered the rival submissions. Factually speaking, it is seen that the assessee has a liaison office in India which has been initially permitted by the RBI under the relevant provisions of Foreign Exchange Regulation Act, 1973. In fact, initially the permission to set-up a liaison office was granted on 20.10.1999 for a period of three years, subject to certain terms and conditions. One of the specific condition was that the liaison office shall only undertake liaison activities, i.e. to act as a communication channel between the Head office and the parties in India. The condition imposed by the RBI specifically prohibited the liaison office from undertaking any other activity of trading, commercial or industrial nature. The liaison office was also, inter- alia, prohibited from entering into any business contract in its own name. It further prescribed that the liaison office will not charge any Commission or fee for its liasioning activity/services rendered by it. The standard terms and conditions also stated that the entire expense of the liaison office were to be met exclusively out of the funds received from 9 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited abroad and that the liaison office could not borrow or lend any money from or to any person in India without prior approval, etc. The aforesaid permission has been further renewed and there is no dispute that for the period under consideration also the requisite approval of the RBI exists for the liaison office of the assessee. We are only highlighting the aforesaid features of the permission granted by the RBI to point out that the liaison office is prohibited from carrying out any business or trading activity. At the time of hearing, it was also stated by the learned representative for the assessee at Bar that till now there is no infringement or any other adverse view taken by the RBI qua the activities which are being carried out by the liaison office in India. This singular aspect is quite pertinent to establish that if the Assessing Officer is to hold to the contrary, i.e. to say that the liaison office was undertaking activities in the nature of business or commerce, then, the onus was on him to establish so. Another notable feature is that the liaison office of the assessee has been in existence since 1999 and, even in the past assessment years when the Assessing Officer disagreed with the assessee on the nature of the receipts from VSNL/TCL, there was no adverse conclusion with regard to the nature of activities being carried out by the liaison office. The Hon'ble Delhi High Court in the case of Mitsui & Co. Ltd. (supra) noted that in a case where assessee was found adhering to the conditions imposed by the RBI for running of a liaison office, it increases the burden of the Revenue to show that notwithstanding the subsisting RBI permission, the liaison office can be construed as a PE in India. In our view, the factual matrix in the instant case clearly attracts the legal position enunciated by the Hon'ble Delhi High Court in the case of Mitsui & Co. Ltd. (supra) and, therefore, we proceed further to examine as to whether the Revenue has discharged its burden on this aspect in the present case. In this context, we have perused the discussion made by the Assessing Officer, wherein he has concluded the existence of a PE in para 11.1 of his order based on the existence of liaison office and the location of SSMS equipment owned by the assessee. We find that apart from making bald assertions that the activity of the liaison office cannot be “mere liasioning”, no other specific 10 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited point has been made out by the Assessing Officer. The Assessing Officer also notes that the liaison office “is performing functions which are much more than liasioning nature”, so however, we do not find even an iota of evidence referred to by the Assessing Officer in this regard. In fact, in the course of hearing, a question was put across to the parties as to whether during the assessment proceedings this aspect was specifically show caused to the assessee or not? The learned representative for the assessee submitted that after receipt of the draft assessment order, assessee had raised objections before the DRP in the following manner :- “4.1 The Assessee has a SSMS located in India at VSNL‟s Land Earth Station („LES‟) at Arvi. The purpose of the SSMS is to provide a degree of surveillance capability to the Inmarsat Network Operations Centre in the UK whereby the Assessee can monitor the transmitted power levels of individual channels (both signalling and voice carriers) to and from satellites in the Indian Ocean region and the frequency deviations. SSMS is not a critical component to the services rendered by the Assessee and even without SSMS, these services can be continued to be rendered. The cost of this equipment is approximately USD 150,000. This investment is insignificant when compared with the total cost of the Assessee‟s assets worldwide (including satellites) which is USD 2,230,839,000 as per the audited accounts for the year 1998. Thus, SSMS is not contributing to the revenues and hence, no part of the amounts receivable is attributable to SSMS. 4.2 The Assessee has a LO in India, which has been set-up with the approval of the Reserve Bank of India („RBI‟). All the activities of the LO are in accordance with the RBI‟s approval. The LO undertakes liaison and coordination activities on behalf of the Assessee. There are no income generating activities carried out by the LO in India. The LO was engaged in coordinating a pilot project to assist VSNL and Department of Telecommunications to provide satellite based village public telephone in rural areas. Presently, the LO interacts with the Indian Government to 11 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited get information and coordinates with the regulatory authorities in connection with the use of Inmarsat‟s services in India. The LO‟s activities do not play any role in the rendering of telecommunication services to VSNL. 4.3 Based on the above, Inmarsat submits that the presence of the SSMS and the LO in India does not constitute a PE of Inmarsat in India.” 16. The aforesaid fact-situation asserted by the assessee has not been countered by the DRP in any manner. In fact, the learned representative for the assessee has pointed out that with regard to the discontinuation of the use of SSMS equipment, communication to VSNL dated 28.04.2005 (copy placed at page 64 of the Paper Book) was also furnished, which clearly establishes that the same was not used in rendering services during the period under consideration. 17. Thus, we find that the assertions of the assessee qua the activity of the assessee and liaison office as well as the significance of the use of SSMS equipment located in India qua the services provided to VSNL clearly establishes that the same could not be construed to constitute a PE in India. The DRP, in our view, has also not referred to any specific instances in the functioning of the liaison office to point out that it was rendering services which could be construed as being a PE in India. Considering the orders of the authorities below as well as the material led by the assessee before the lower authorities, in the present case, it is safe to deduce that the Revenue has failed to discharge its burden of proving that the activities of the liaison office were such as to construe it to be a PE in India. 18. On the aspect of use of SSMS equipment also, we find that there is no reason to hold that it could be construed as a PE in India. So far as the reference to the LES made by the DRP in Assessment Years 2010-11 to 2012- 13 is concerned, the same, 12 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited in our view, is quite misplaced. The DRP itself notes that the LES is owned by the LESO, i.e. VSNL. It is also a feature of assessee‟s agreement for providing services that it is the LESO, i.e. VSNL, who has the full right and responsibility with regard to the LES. In any case, it is undeniable that the LES is not owned by the assessee, an aspect which the DRP itself has noted in its order. Therefore, considering the matter in its entirety, we find it erroneous on the part of the Assessing Officer to hold that there exists a PE of the assessee in India. Thus, assessee succeeds on this aspect also. 19. Insofar as Ground of appeal no. 5 is concerned, the same relates to income computed by the Assessing Officer, which can be attributable to the PE of the assessee in India. Since we have upheld the primary stand of the assessee that there does not exit any PE of the assessee in India, the dispute in Ground of appeal no. 5 is rendered academic and is dismissed as infructuous.” 15. As the facts in the backdrop of which the A.O/DRP had in the aforesaid preceding years concluded that the LO and LES were to be treated as the PE on the assessee in India, remains the same, as are involved in the appeal of the assessee for the year under consideration, we therefore respectfully follow the aforesaid order of the Tribunal. Accordingly, in the backdrop of our aforesaid observations, we herein conclude that the assessee did not have any PE in India during the year under consideration. The Grounds of appeal Nos. 6 & 7 are allowed in terms of our aforesaid observations. 8. We see no reasons to take any other view of the matter than the view so taken by the coordinate bench as is evident from the observations made by the learned DRP in paragraph 6.3 (Page no 26-27) of the DRP’s order. Respectfully following the same we uphold the plea of the assessee and direct the Assessing Officer to delete the impugned addition of Rs. 5,82,70,600/-. As we do so we may also note that the learned DRP has decided the matter against the assessee only to keep the issue alive.” 13 ITA NO. 626/MUM/2022 (A.Y: 2018-19) Inmarsat Global Limited 7. Respectfully following the above said decision and Coordinate Bench has given a specific finding on the issue of “PE", it is binding decision. Therefore, we are inclined to allow the ground nos. 6 and 7 raised by the assessee. 8. In the result, appeal filed by the assessee is allowed. Order pronounced in the open court on 15 th March, 2023. Sd/- Sd/- (AMIT SHUKLA) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 15/03/2023 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum