The Tribunal's determination of the most suitable methods for determining ALP and the consequences of not appealing against the Tribunal's order.

[Physical Hearing/Hybrid Hearing (as per request)]

Rajiv Shakdher, J. (Oral)

1. These appeals concern Assessment Years (AYs) 2013-14 (ITA No. 22/2023) and 2012-13 (ITA No. 23/2023).

2. On 30.01.2023, we had heard the matter at some length, when we had etched out the broad controversy that arose between the parties. For the sake of convenience the said order is extracted hereafter:

"1. These appeals impugn a common order dated 21.05.2019 passed by the Income Tax Appellate Tribunal [in short, "Tribunal"].

2. ITA No.22/2023 concerns Assessment Year (AY) 2013-14, while ITA No.23/2023 concerns AY 2012-13.

3. According to Mr Vipul Agarwal, who appears on behalf of the appellant/revenue, the impugned order passed by the Tribunal was received by the appellant/revenue on 06.06.2019.

3.1 We may note that the affidavits accompanying the appeals indicate that they were sworn on 17.08.2020. Prima facie, there is delay in filing the appeals as well.

3.2. The above-captioned applications [i.e., CM Nos.1876/2023 & 1880/2023], though, seek condonation of delay, only in re-filing the appeals.

3.3. Interestingly, the re-filling applications are also dated 17.08.2020 and are accompanied by an affidavit which has been sworn on the same date.

4. According to us, there is complete lack of clarity on the part of the appellant/revenue, as to whether they are seeking condonation of delay in filing the appeals or re-filing the appeals.

5. That being said, there is a considerable delay, even if one were to take into account the fact that Covid-19 had kicked in. Insofar as this court was concerned, there was disruption in work in and about March 2020 and thereafter.

6. Mr C.S. Aggarwal, learned senior counsel, who appears on behalf of the respondent/assessee, points out that the applications for condonation of delay in re-filing were filed only on 07.01.2023, although, as noticed above, they are dated 17.08.2020.

6.1 Mr C.S. Aggarwal also asserts that the defects pointed out by the Registry have not been cured.

7. Insofar as the merits of the case are concerned, the controversy which arises concerns the commission earned by the respondent/assessee, with respect to certain international transactions that it entered into with its Associated Enterprises [hereafter referred to as "AEs"]. These transactions are, broadly, referred to as "indenting transactions".

8. We may note, and qua which there is no dispute, disputes concerning AYs 2007-08 to 2010-11, had reached this court.

8.1. This court via judgment dated 22.07.2016 had remitted the subject appeals to the Tribunal. Via the very same judgment, the coordinate bench of this court had given leeway to the Tribunal to remand the matter to the Transfer Pricing Officer (TPO)/Assessing Officer (AO) for fresh examination of the issues relating to transfer pricing, albeit in accordance with the law.

8.2. The said judgment rendered by the coordinate bench was passed in the following appeals:

"ITA Nos.381/2013, 738/2015, 382/2013 & 702/2014."

9. Mr C.S. Aggarwal, in support of submission has placed before us a hard copy of the order dated 22.10.2018 passed by the Tribunal, upon remand by the coordinate bench of this court.

10. We have been taken by Mr C.S. Aggarwal through the order passed by the Tribunal. Briefly put, the Tribunal has returned the following two significant findings of fact:

10.1 First, the Transaction Net Margin Method (TNMM) would be the most suitable method for determining Arm's Length Price (ALP) for international transactions concerning indenting transactions entered into by the respondent/assessee with its AEs.

10.2 Second, the Berry ratio method for calculating Profit Level Indicator (PLI) would be most appropriate insofar as the respondent/assessee is concerned.

11. In respect of the aforesaid findings of fact, a detailed analysis has been made by the Tribunal in paragraphs 15 to 19 of its order dated 22.10.2018. For the sake of convenience, the relevant paragraphs are extracted hereafter:

"15. We have heard th