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2022 (4) TMI 1512 - AT - Income TaxMaintainability of the appeal before the Tribunal against the order passed u/s 172 - Appealable orders u/s 246 - Appeals to the Appellate Tribunal u/s 253 - provision for filing of the appeal against the order passed by the AO u/s 172 of the Act either before the Commissioner of Income Tax (Appeals) or before the Tribunal - DR had submitted that neither the CIT(A) nor this Tribunal is empowered to adjudicate these appeals against the order passed under section 172 - provisions of DTAA applicability even at the stage of passing order u/s 172(4) of the Act? - HELD THAT:- We do not agree with the contention of the ld.DR that the appeals filed by the assessee are not maintainable before us. Accordingly, the objection raised by the Revenue about the maintainability of the appeals is dismissed. Further, we may point out that the present appeals are filed by the assessee after feeling aggrieved by the separate orders passed by the CIT(A) for non-grant of relief and the ld.CIT(A) has not dismissed the appeals on account of non-maintainability of the appeals before him. Ld.CIT(A) has decided the issue on merit, hence, the impugned orders passed by the ld.CIT(A) falls within the realm of section 253 of the Income Tax Act, against which the assessee had preferred appeal before us. Accordingly, the preliminary objection raised by the Revenue is dismissed. Benefit of Article 8 of Double Taxation Avoidance Agreement (hereinafter referred as “DTAA”) denied - In the present case, as per the undisputed fact for the year under consideration, the agent filed an application on behalf of the company for grant of NOC in respect of Vessel “MV PAC ALKAID”. The vessel departed from Krishnapatnam Port on 09.10.2014 to Houston, USA with a cargo of 7302.99 MT of Seamless Pipes. The total freight rate was USD 88 per MT which works out to total USD 642663. However, in the proceedings, the agent claimed that the entire freight earned by the freight beneficiary is exempt from tax in India in view of DTAA and therefore, the necessary benefit be given to the assessee. The agent of the assessee filed return on 07.11.2014 u/s 172(3) of the Act and along with return, the copy of the bank account in support of the remittance of freight was also placed on record. For the present controversy, it is undoubtedly clear that only the above said amount USD 621169 was remitted to the Singapore bank account and the remaining amount i.e., USD 22493 subject matter of the appeal was not remitted to the Singapore bank account and was allegedly adjusted towards the commission paid to the said Bertling. Therefore, in our considered opinion, the appellant / assessee is only entitled to the benefit of DTAA for the amount remitted or received. There is no doubt that the actual amount received by the assessee was USD 621169 and the remaining amount was neither received by the assessee nor accounted in its books of account , Hence the Assessing Officer and the ld.CIT(A) were right in applying Article 24 r.w. Article 8 and hence, we do not find any merit and therefore, the appeal of the assessee is required to be rejected. The assessee has not discharged his onus as no document was filled in this regard. In the present case, the AO / ld.CIT(A) had already granted the benefit of DTAA to the assessee as it has only restricted the benefit to the extent of the amount received, we do not find the judgment in the case of Emirates Shipping Line, FZE [2012 (7) TMI 806 - DELHI HIGH COURT]is of any use for the purpose of determining the present controversy. No other judgment was cited by the ld.AR before us. Therefore, we do not find any merit in this regard. Accordingly, the appeal of assessee is dismissed.
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