COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION)-2 vs. MICRO FOCUS LTD.

$~25 * IN THE HIGH COURT OF DELHI AT NEW DELHI + ITA 94/2023 COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION)-2

..... Appellant Through: Mr Sanjay Kumar, Sr. Standing Counsel.

versus

MICRO FOCUS LTD.

..... Respondent

Through: Mr Vishal Kalra, Advocate.

CORAM:

HON'BLE MR JUSTICE RAJIV SHAKDHER

HON'BLE MS JUSTICE TARA VITASTA GANJU

O R D E R %

16.02.2023

[Physical Hearing/Hybrid Hearing (as per request)] CM APPL. 7377/2023 [Application filed on behalf of the appellant seeking condonation of delay of 40 days in re-filing the appeal] 1. This is an application filed on behalf of the appellant/revenue seeking condonation of delay in re-filling the appeal. 2. According to the appellant/revenue, there is delay of 40 days. 3. Counsel for the respondent/assessee, says that he has no objection if the delay in re-filing the appeal is condoned. 4. For the reasons given in the application, the delay in re-filling the appeal is condoned. 5. The application is disposed of in the aforesaid terms.

ITA 94/2023

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ITA 94/2023 6. This appeal concerns Assessment Year (AY) 2015-16. 7. In this appeal, challenge is laid to the order of the Income Tax Appellate Tribunal [in short, “Tribunal”] dated 20.05.2022 passed in ITA 6604/Del/2019. 8. The issue which arises for consideration in the appeal is: whether income derived by the respondent/assessee from sale of software could be construed as royalty under the provisions of Indo-US Double Taxation Avoidance Agreement (DTAA)? 9. Even according to Mr Sanjay Kumar, senior standing counsel, who appears on behalf of the appellant/revenue, the issue is covered by the decision of the Supreme Court rendered in Engineering Analysis Centre of Excellence (P.) Ltd. v. CIT 432 ITR 471 (SC). 9.1. We may note that the appellant/revenue, apparently, has filed a review petition against the said decision. 10. Accordingly, the appeal is closed as no substantial question of law arises for our consideration, albeit, with the caveat that in case the appellant/revenue was to succeed in the review petition, parties will abide by the decision rendered therein. RAJIV SHAKDHER, J