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1. This common judgment will dispose of appeals filed by Galileo Nederland BV, now known as Travelport Global Distribution System BV, pertaining to Assessment Years 2003-04 to 2006-07. These appeals arise out of a common order of the Income Tax Appellate Tribunal (Tribunal, in short) dated 29th June, 2012 by which the issue/question of profits attributable to Indian operations was remitted to the Assessing Officer for fresh determination. The case of the appellant-assessee is that the order of the Tribunal is erroneous as the question of profits attributable to Indian operations has already been determined in Assessment Years 1995-96 to 2002-03 and does not require reconsideration. The impugned order of the Tribunal mistakenly understands and interprets the order passed by the High Court in the case of Amadeus IT Group and, therefore, incorrectly observes that the ratio or formula applied in earlier years cannot be applied in respect of Assessment Years 2003-04 to 2004-07. It is submitted that similar reasoning by the Tribunal was rejected by the High Court in Amadeus IT Group. Submission of the Revenue is that in view of globalisation, the earlier formula or profit attribution ratio should not be applied and the Tribunal was justified in remitting the question of profits attributable to the Assessing Officer.

3. Whether the Tribunal fell into error in applying the ratio of Amadeus in disregard of the order of this Court in the concerned appeals?

4. Whether on the facts and in the circumstances of the case and in law the ITAT ought to have held that even if any income of the appellant could be attributed to India, the same stood exhausted by the expense incurred by the appellant in India, resulting in the appellant having no tax liability in India?"

12. Appellant-assessee is right in his submission that the Tribunal has misread the order dated 24th January, 2011 passed by the High Court in Amdeus IT Group SA case for the Assessment Years 2001-02 and 2002-

03. Tribunal for the assessment years 2001-02 and 2002-03, relying on their earlier order dated 27th April, 2009 in the case of Amadeus Global Travel Distribution, Spain relating to Assessment Years 2001-02 and 2002- 03 had issued similar directions but the High Court in appeal had specifically and clearly rejected the reasoning. In order to appreciate the contentions, we would first like to refer to the decision of the Tribunal in the case of Amadeus Global Travel Distribution, who was engaged in the identical business and were competitors of the appellant-assessee. Appeal filed by Amadeus Global Travel Distribution for the Assessment Years 2001-02 and 2002-03 came up for hearing before the Tribunal and was decided by order dated 27th April, 2009. The Tribunal observed that the High Court had already decided and held that 15% of the operations were attributable to India but nothing would be taxable as the expenses incurred were more. In the result, the taxable income of Indian PE was nil as there were no taxable profits. However, in spite of the aforementioned observations, agreeing with the submissions made by the Departmental Representatives, Tribunal in order dated 27th April, 2009 held:-

16. The appellant-assessee has placed on record copy of orders dated 28th April, 2011 in the case of Amadeus Global Travel Distributors, SA in ITA No. 689/2011, wherein appeal filed by the Revenue was dismissed in view of the order dated 24th January, 2011 in the case of the present assessee. Similar appeals for Assessment Years 2004-05 and 2005-06 being ITA Nos. 795/2011 and 797/2011 in the case of Amadeus IT Group SA were dismissed by the High Court vide order dated 31st May, 2011.

17. The appellant-assessee has also placed on record orders passed by the Delhi High Court in the case of Sabre Inc., USA, another non-resident company engaged in identical business. Their proportionate earnings were sought to be taxed in India. The appeals filed by the Revenue on the said aspect have been dismissed. One such appeal relates to Assessment Year 2005-06.