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2023 (5) TMI 351 - ITAT RAJKOTMaintainability of appeal as filled manually - mode of filing appeal - electronically or in physical mode - the assessee being a corporate entity, was required to file return electronically - HELD THAT:- Return form for filing return of income was being a voyage return filed by the agent on behalf of the freight beneficiary, as per the provisions of section 172(3) the filing of the return was to be in form VVR i.e. voyage return, as canvassed by the Ld.Counsel for the assessee both to the Ld.CIT(A) and even before us. Without controverting this fact and finding it to be incorrect the CIT(A) clearly was in error in stating that being a corporate assessee the return should have been filed electronically. Therefore, dismissal by the CIT(A) of the assessee’s appeal, we find was based on incorrect appreciation of the facts. Mere mode of filing appeal - electronically or in physical mode ,alone should not take away the assessee’s right to appeal, being just a technical/ procedural aspect that too not mandated by statute but by CBDT notification which has no persuasive value and is binding only on its Revenue Officers.. Therefore also the order of the ld.CIT(A) dismissing the assessee’s appeal as not admitted is set aside. Levy of penalty u/s 271(1)(c) - assessee, being an agent of freight beneficiary had filed various voyage final returns u/s 172(3) of the Act without paying freight taxes - HELD THAT:- The assessee had claimed DTAA benefit vis a vis Denmark for the said purpose, but the AO held that the assessee had wrongly claimed DTAA benefit and accordingly withdrew the same. Thus, 7.5% of the total freight earned in India by the assessee was treated as its taxable income and penalty levied on the same for having concealed/furnishing inaccurate particulars of income. The ITAT passed order [2015 (11) TMI 274 - ITAT RAJKOT] holding that profits embedded in the freight receipts were not taxable in India and deleted the demand raised on the assessee. Since the quantum addition stands deleted by the ITAT in the above order, there remains no basis for levy of penalty under section 271(1)(c) and therefore the same is directed to be cancelled. The grounds of appeal of the assessee are allowed.
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