PACC Container Line pte Limited ,Singapore Rep by its Indian Agent M/S J M Baxi & CO , Nellore V. Income Tax Officers ,(International Taxation) , Nellore

ITA 550/Hyd/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3683 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2014-2015
• Appeal Filed On: 29-12-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T. SUNIL GOUTAM
• Keywords: Recovery proceedings; Double taxation relief; Competent authority
• Section: 147; 263; 132; 90; 154; 143(3); 153A; 80G; 12AA; 271D; 246A; 271B; 272A; 153C

Judgement Text

M/s. PACC Container Line Pvt. Ltd. 1 IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ A ‘ Bench, Hyderabad Before Shri Laliet Kumar, Judicial Member AND Shri Laxmi Prasad Sahu, Accountant Member Appellant by : Shri A.V. Raghuram. Respondent by : Shri T. Sunil Goutam Date of Hearing : 21.04.2022 Date of Pronouncement : 27.04.2022 O R D E R PER BENCH : These are the set of five appeals filed by the appellant/ assessee feeling aggrieved by the separate orders passed by Commissioner of Income Tax (Appeals) – 10, Hyderabad for different assessment years. Since the grounds raised in all the appeals are identical, therefore, we are reproducing hereinbelow the grounds Sl. No ITA No Assessment Year Appellant / Assessee Respon- dent 1 25/Hyd/2018 2015-16 M/s. PACC Container Line Pvt. Ltd. Singapore, Rep., by its Indian Agent M/s. J.M. Baxi & Co., Muthukur, Nellore. PAN : AAGCP0145G (Agent – AAAFJ5198E) ITO (Inter- national Taxation), Nellore 2 26/Hyd/2018 2015-16 3 27/Hyd/2018 2015-16 4 550/Hyd/2021 2014-15 5 551/Hyd/2021 2018-19 M/s. PACC Container Line Pvt. Ltd. 2 raised by the assessee in ITA No.25/Hyd/2018 for A.Y. 2015-16 which are as under : 2. We first take up ITA 25/Hyd/2018 for A.Y. 2015-16 for adjudicating the same for the sake of convenience. 2.1 At the outset, the ld. DR had drawn our attention to section 172 of the Act under which the order was passed by the Assessing Officer which provides as under : 172. (1) The provisions of this section shall, notwithstanding anything contained in the other provisions of this Act, apply for the purpose of the levy and recovery of tax in the case of any ship, belonging to or chartered by a non- resident, which carries passengers, livestock, mail or goods shipped at a port in India unless the Income-tax Officer is satisfied that there is an agent of the non-resident from whom the tax will be recoverable under the other provisions of this Act. M/s. PACC Container Line Pvt. Ltd. 3 (2) Where such a ship carries passengers, livestock, mail or goods shipped at port in India, one-sixth of the amount paid or payable on account of such carriage to the owner or the charterer or to any person on his behalf, whether that amount is paid or payable in or out of India, shall be deemed to be income accruing in India to the owner charterer on account of such carriage. (3) Before the departure from any port in India of any such ship, the master of the ship shall prepare and furnish to the Income-tax Officer a return of the full amount paid or payable to the owner or charterer or any person on his behalf, on account of the carriage of all passengers, livestock, mail or goods shipped at that port since the last arrival of the ship thereat : Provided that where the Income-tax Officer is satisfied that it is not possible for the master of the ship to furnish the return required by this sub-section before the departure of the ship from the port and provided the master of the ship has made satisfactory arrangements for the filing of the return and payment of the tax by any other person on his behalf, the Income-tax Officer may, if the return is filed within thirty days of the departure of the ship, deem the filing of the return by the person so authorised by the master as sufficient compliance with this sub-section. (4) On receipt of the return, the Income-tax Officer shall assess the income referred to in sub-section (2) and determine the sum payable as tax thereon at the 1 [rate or rates in force] applicable to the total income of a company which has not made the arrangements referred to in section 194 and such sum shall be payable by the master of the ship. (5) For the purpose of determining the tax payable under sub-section (4), the Income-tax Officer may call for such accounts or documents as he may require. (6) A port clearance shall not be granted to the ship until the Collector of Customs, or other officer duly authorised to grant the same, is satisfied that the tax assessable under this section has been duly paid or that satisfactory arrangements have been made for the payment thereof. (7) Nothing in this section shall be deemed to prevent the owner or charterer of a ship from claiming before the expiry of the assessment year relevant to the previous year in which the date of departure of the ship from the Indian port falls, that an assessment be made of his total income of the previous year and the tax payable on the basis thereof be determined in accordance with the other provisions of this Act, and if he so claim, any payment made under this section in respect of the passengers, livestock, mail or goods shipped at Indian ports during that previous year shall be treated as a payment in advance of the tax leviable for that assessment year, and the difference between the sum so paid and the amount of tax found payable by him on such assessment shall be paid by him or refunded to him, as the case may be. M/s. PACC Container Line Pvt. Ltd. 4 (8) For the purposes of this section, the amount referred to in sub-section (2) shall include the amount paid or payable by way of demurrage charge or handling charge or any other amount of similar nature. 3. It was submitted by the ld. AR that there is no provision for filing of the appeal against the order passed by the Assessing Officer u/s 172 of the Act either before the Commissioner of Income Tax (Appeals) or before the Tribunal. He had drawn our attention to section 246 of the I.T. Act which provides as under : “Appealable orders. 246. (1) Subject to the provisions of sub-section (2), any assessee aggrieved by any of the following orders of an Assessing Officer (other than the Deputy Commissioner) may appeal to the Deputy Commissioner (Appeals) before the 1st day of June, 2000 against such order— (a) an order against the assessee, where the assessee denies his liability to be assessed under this Act, or an intimation under sub-section (1) or sub-section (1B) of section 143, where the assessee objects to the making of adjustments, or any order of assessment under sub-section (3) of section 143 or section 144, where the assessee objects to the amount of income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed; (b) an order of assessment, reassessment or recomputation under section 147 or section 150; (c) an order under section 154 or section 155 having the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections; (d) an order made under section 163 treating the assessee as the agent of a non- resident; (e) an order under sub-section (2) or sub-section (3) of section 170; (f) an order under section 171; (g) any order under clause (b) of sub-section (1) or under sub-section (2) or sub- section (3) or sub-section (5) of section 185 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992; (h) an order cancelling the registration of a firm under sub-section (1) or under sub-section (2) of section 186 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992; (i) an order under section 201; (j) an order under section 216 in respect of any assessment for the assessment year commencing on the 1st day of April, 1988 or any earlier assessment year; (k) an order under section 237; M/s. PACC Container Line Pvt. Ltd. 5 (l) an order imposing a penalty under— (i) section 221, or (ii) section 271, section 271A, section 271B, section 272A, section 272AA or section 272BB; (iii) section 272, section 272B or section 273, as they stood immediately before the 1st day of April, 1989, in respect of any assessment for the assessment year commencing on the 1st day of April, 1988 or any earlier assessment years. (1A) Notwithstanding anything contained in sub-section (1), every appeal filed, on or after the 1st day of October, 1998 but before the 1st day of June, 2000, before the Deputy Commissioner (Appeals) and any matter arising out of or connected with such appeal and which is so pending shall stand transferred to the Commissioner (Appeals) and the Commissioner (Appeals) may proceed with such appeal or matter from the stage at which it was on that day. (2) Notwithstanding anything contained in sub-section (1), any assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) before the 1st day of June, 2000 against such order— (a) an intimation or order specified in sub-section (1) where such intimation is sent or such order is made by the Deputy Commissioner in exercise of the powers or functions conferred on or assigned to him under section 120 or section 124; (b) an order specified in clauses (a) to (e) (both inclusive) and clauses (i) to (l) (both inclusive) of sub-section (1) or an order under section 104, as it stood immediately before the 1st day of April, 1988 in respect of any assessment for the assessment year commencing on the 1st day of April, 1987 or any earlier assessment year made against the assessee, being a company; (c) an order of assessment made after the 30th day of September, 1984, on the basis of the directions issued by the Deputy Commissioner under section 144A; (d) an order made by the Deputy Commissioner under section 154; (da) an order of assessment made by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, on or after the 1st day of January, 1997; (db) an order imposing a penalty under sub-section (2) of section 158BFA; (e) an order imposing a penalty under section 271B or section 271BB; (ee) an order made by a Deputy Commissioner imposing a penalty under section 271C, section 271D or section 271E; (f) an order made by a Deputy Commissioner or a Deputy Director imposing a penalty under section 272A; (ff) an order made by a Deputy Commissioner imposing a penalty under section 272AA; (g) an order imposing a penalty under Chapter XXI by the Income-tax Officer or the Assistant Commissioner where such penalty has been imposed with the previous approval of the Deputy Commissioner under sub-section (2) of section 274; M/s. PACC Container Line Pvt. Ltd. 6 (h) an order made by an Assessing Officer (other than Deputy Commissioner) under the provisions of this Act in the case of such person or classes of persons as the Board may, having regard to the nature of the cases, the complexities involved and other relevant considerations, direct. (3) Notwithstanding anything contained in sub-section (1), the Board or the Principal Director General or Director General, or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner if so authorised by the Board, may, by order in writing, transfer any appeal which is pending before a Deputy Commissioner (Appeals) and any matter arising out of or connected with such appeal and which is so pending, to the Commissioner (Appeals) if the Board or, as the case may be, the Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner (at the request of the appellant or otherwise) is satisfied that it is necessary or expedient so to do having regard to the nature of the case, the complexities involved and other relevant considerations and the Commissioner (Appeals) may proceed with such appeal or matter, from the stage at which it was before it was so transferred: Provided that the appellant may demand that before proceeding further with the appeal or matter, the previous proceeding or any part thereof be re-opened or that he be reheard. Explanation.—For the purposes of this section,— (a) "appointed day" means the 10th day of July, 1978, being the day appointed under section 39 of the Finance (No. 2) Act, 1977 (29 of 1977); (b) "status" means the category under which the assessee is assessed as "individual", "Hindu undivided family" and so on.” 4. Ld. DR had also drawn our attention to section 253 of the Income Tax Act whereby the power to the Tribunal was provided to hear and adjudicate the appeal if arise out of the various orders passed by the Assessing Officer / Commissioner of Income Tax (Appeals). For completeness of the record, we are reproducing section 253 of the Act which reads as under : “Appeals to the Appellate Tribunal. 253. (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order— (a) an order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998 or, as the case may be, a Commissioner (Appeals) under section 154, section 250, section 270A, section 271, section 271A, section 271J or section 272A; or M/s. PACC Container Line Pvt. Ltd. 7 (b) an order passed by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995, but before the 1st day of January, 1997; or (ba) an order passed by an Assessing Officer under sub-section (1) of section 115VZC; or (c) an order passed by a Principal Commissioner or Commissioner 54 [under section 12AA or section 12AB] or under clause (vi) of sub-section (5) of section 80G or under section 263 or under section 270A or under section 271 or under section 272A or an order passed by him under section 154 amending his order under section 263 or an order passed by a Principal Chief Commissioner or Chief Commissioner or a Principal Director General or Director General or a Principal Director or Director under section 272A; or (d) an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 or section 153A or section 153C in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order; (e) an order passed by an Assessing Officer under sub-section (3) of section 143 or section 147 or section 153A or section 153C with the approval of the Principal Commissioner or Commissioner as referred to in sub-section (12) of section 144BA or an order passed under section 154 or section 155 in respect of such order; (f) an order passed by the prescribed authority under sub-clause (iv) or sub- clause (v) or sub-clause (vi) or sub-clause (via) of clause (23C) of section 10. (2) The Principal Commissioner or Commissioner may, if he objects to any order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998 or, as the case may be, a Commissioner (Appeals) under section 154 or section 250, direct the Assessing Officer to appeal to the Appellate Tribunal against the order. (2A) [***] (3) Every appeal under sub-section (1) or sub-section (2) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the Principal Commissioner or Commissioner, as the case may be : Provided that in respect of any appeal under clause (b) of sub-section (1), this sub-section shall have effect as if for the words "sixty days", the words "thirty days" had been substituted. (3A) [***] M/s. PACC Container Line Pvt. Ltd. 8 (4) The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the Commissioner (Appeals), has been preferred under sub-section (1) or sub-section (2) by the other party, may, notwithstanding that he may not have appealed against such order or any part thereof, within thirty days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Commissioner (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. (6) An appeal to the Appellate Tribunal shall be in the prescribed form 55 and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto, be accompanied by a fee of,— (a) where the total income of the assessee as computed by the Assessing Officer, in the case to which the appeal relates, is one hundred thousand rupees or less, five hundred rupees, (b) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, one thousand five hundred rupees, (c) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than two hundred thousand rupees, one per cent of the assessed income, subject to a maximum of ten thousand rupees, (d) where the subject matter of an appeal relates to any matter, other than those specified in clauses (a), (b) and (c), five hundred rupees: Provided that no fee shall be payable in the case of an appeal referred to in sub- section (2), or, sub-section (2A) as it stood before its amendment by the Finance Act, 2016, or, a memorandum of cross objections referred to in sub-section (4). (7) An application for stay of demand shall be accompanied by a fee of five hundred rupees. 56 [(8) The Central Government may make a scheme, by notification in the Official Gazette, for the purposes of appeal to the Appellate Tribunal under sub-section (2), so as to impart greater efficiency, transparency and accountability by— (a) optimising utilisation of the resources through economies of scale and functional specialisation; (b) introducing a team-based mechanism for appeal to the Appellate Tribunal, with dynamic jurisdiction. (9) The Central Government may, for the purpose of giving effect to the scheme made under sub-section (8), by notification in the Official Gazette, direct that any of the provisions of this Act shall not apply or shall apply with such M/s. PACC Container Line Pvt. Ltd. 9 exceptions, modifications and adaptations as may be specified in the notification: Provided that no direction shall be issued after the 31st day of March, 2022. (10) Every notification issued under sub-section (8) and sub-section (9) shall, as soon as may be after the notification is issued, be laid before each House of Parliament.] 5. On the basis of the above, ld.DR had submitted that neither the CIT(A) nor this Tribunal is empowered to adjudicate these appeals against the order passed under section 172 of the Act. Therefore, the present set of appeals are not maintainable. 6. The ld.DR seeks time to file the written submissions and it was submitted as under : 1. On the issue of maintainability of appeal, the revenue has not preferred an appeal or cross objection as the case was covered under low tax effect, it is prayed that the learned CIT(A) erred in admitting appeal filed against the order passed u/s.172(4) as this is not an appealable order before CIT(A) as per section 246A of the ITAct and by extension of the same, not appealable before ITAT. 2. The logic behind this is that the assessee is eligible to question the order under section 172(4) under section 172(7) and the AO is bound to pass an order under section 143(3) which is an appealable matter. Accordingly, there is no prejudice caused to the assessee by considering an order section 172(4). This understanding is line with the judgement of Hon’ble Supreme Court in the case of A.S. Glittre (1997) 91 Taxman 286, wherein it was held that the proceedings u/s 172(4) are summary or adhoc proceedings. It is a right conferred upon the AO to levy and recover tax on the freight paid towards ship belonging to non-resident. Another right is given to the assessee u/s 172(7) to opt for the regular assessment and the AO is bound to make such assessment. The relevant extract is as under – “6. The scheme of section 172 appears to be this: Section 172(1) gives a right to the ITO to levy and recover tax in the case of any ship belonging to a non-resident, in a summary manner (ad hoc assessment) notwithstanding anything contained in the other provisions of the Act. It is an absolute right conferred on the assessing authority. The assessee has no right to object to the same. Normally, this will be M/s. PACC Container Line Pvt. Ltd. 10 assessment of the assessee for the year. But, under section 172(7), a right is given to the assessee to claim before the expiry of the assessment year relevant to the previous year in which the date of departure of the ship from the Indian port falls, that an assessment, according to the provisions of the Act, in a regular manner be made. Thus, a right is given to the assessee to opt for a regular assessment although a 'rough and ready' or a 'summary assessment' has already been made under section 172(4). It is a valuable right. If the assessee exercises the right conferred on him under section 172(7), the ITO is bound to make an assessment of the total income of the previous year of the assessee and the tax payable on the basis thereof "should be determined in accordance with the other provisions of the Act" and any payment made under the section (earlier) 'shall be treated as a payment in advance of the tax' leviable for that assessment year and the difference between the sum so paid and the amount of tax found payable by him on such assessment, shall be paid to the assessee or refunded to him. The ad hoc assessment made under section 172(4) is superseded and a 'regular assessment' is made as per the provisions of the Act. In such a case, it is only proper and appropriate to hold that all 'the provisions' of the Act in the determination of the tax liability including the ancillary or incidental or consequential matters pertaining to it are necessarily attracted. [Emphasis supplied]”. 3. Further, Supreme Court of India in the case of Raghunath Rai Bareja and Another vs Punjab National Bank and Others on 6 December, 2006 vide CASE NO.:Appeal (civil) 5634 of 2006 has categorically stated that the jurisdiction of the tribunal cannot be enlarged and there should be a strict interpretation of the scope of jurisdiction as per statute. 4. On jurisdiction, the assessee has placed reliance on the order of Income Tax Appellate Tribunal – Chennai in the case of Msc Agency (India) P Ltd. vs Department Of Income Tax vide I.T.A. No. 871/Mds/2010for Assessment Year :2007-08, however, the said judgement did no take into consideration the judgements of Raghunath Rai Bareja and Another vs Punjab National Bank and Others on 6 December, 2006 vide CASE NO.: Appeal (civil) 5634 of 2006 and the case of A.S. Glittre (1997) 91 Taxman 286. 5. On merit, it is seen that the assessee is contesting the order under section 172(4) on the question of interplay between article 8 and article 24 of DTAA. This ground of appeal is not sustainable as Hon’ble Supreme Court in the case of A.S. Glittre (1997) 91 Taxman 286, has held that the proceedings u/s 172(4) are summary or adhoc proceedings, it further stated that it is a right conferred upon the AO to levy and recover tax on the freight paid towards ship belonging to non-resident. The right given to the assessee u/s 172(7) is to opt for the regular assessment, in this case, the assessee has surrendered the right under M/s. PACC Container Line Pvt. Ltd. 11 section 172(7), accordingly, he cannot agitate the applicability of article 24 in appeal now against the observations of Supreme court. In the present case the order is passed u/s 172(4) , the actual taxability or otherwise can only be determined u/s 143(3) of the I.T. Act. 6. Art 8 of DTAA talks about the profits, Art 24 talks about income and section 172(2) says about the amount paid or payable on account of such carriage. The terminologies employed carry different and specific meanings. Art 8 can only be examined during the assessment proceedings u/s 143(3) where the profits are required to be taxed. Art 24 is employed conjointly with section 172(2) which speak about the income in the nature of receipt. Thus under 172(4), the entire receipts are taxable, unless they are remitted under Art 24. As stated earlier 172(4) proceedings are only ad-hoc proceedings or summary proceedings. 7. The wordings of section 172 are plain and do not invite any other interpretation. Invoking the provisions of section 172, the AO was fully justified in taxing the freight receipts. Further what is retained by the agent is Address Commission which is covered under the sub-section 8 of 172. For the purpose of sub-section 8, the amount referred shall include the amount paid or payable by way of demurrage charge or handling charge or any other amount of similar nature. Address Commission is thus covered under 172(8). 8. Further, if the balance amount is not brought to tax either in India or Singapore, then it would be the case of Double Non-Taxation, irrespective of the fact whether the amount is paid or payable in or out of India. Such amount is deemed to be income accruing in India to the owner or the charterer. This has been held by Hon’ble HC of Delhi in Emirates Shipping Line, FZE in WP(Civil) No.9780/2009 dated 26/07/2012. The relevant extract is as under – 13. The aforesaid Section is a special provision for levy and recovery of tax from non-resident owners and charterers of ships. The tax is paid at flat rate of 7.5% by the non-resident owners and charters which carry passengers, live stock, mail or goods. The tax is payable on the account of such carriage, whether or not the amount is paid or payable in or out of India. The amount payable or paid is deemed to be income accruing in India to the owner or the charterer. Under Section 172(3), before departure of ship, a return is required to be filed by the Master of the ship specifying the amount paid or payable. The proviso provides and states that return may not be filed under Section 172(3), where the Master of the ship has made satisfactory arrangements for filing of the return and payment of tax by any other person on his behalf. On the return being filed under Section 172(3), the Assessing Officer has to assess the income referred to in sub-section (2) and pass an order under Section 172(4) of the Act determining the tax payable. The said M/s. PACC Container Line Pvt. Ltd. 12 sum is payable by the Master of the ship, unless arrangement has been made under Section 194. For the purpose of the said determination, the Assessing Officer can call for documents and/or accounts as he may require. Port clearance cannot be granted unless the Collector of Customs or other officer authorized, is satisfied that the tax assessable under the said Section has been duly paid or satisfactory arrangements have been made for payment thereof. 14. A reading of the said Section would show that Section 172(4) postulates a summary assessment of payment of tax payable under Section 172 before the ship leaves India. This is necessary because after the ship leaves India, it would be difficult; (if not impossible), to recover the tax. The section postulates that the ship can be allowed to leave when satisfactory arrangements have been made for filing of return and payment of tax. These are special provisions which have been enacted keeping in view the specific need and requirement relating to international shipping and their liability to pay income tax in India.” 7. Per contra, ld.AR has drawn our attention to the order of the Tribunal in the case of ITO (International Taxation) Vs. MSC Agency (India) (P) Ltd., wherein the identical issue was considered by the Tribunal and the Tribunal had decided the issue in Para Nos. 4 to 6 as under : M/s. PACC Container Line Pvt. Ltd. 13 8. We have heard the rival contentions of both the parties and perused the material available on record. In our view, the issue of maintainability of the appeal before the Tribunal had categorically been adjudicated by the co-ordinate bench of the Tribunal in the case of MSC Agency (India) (P) Ltd (supra) and therefore, 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. 9. The ld.AR in the assessment order had submitted that the assessee had denied the benefit of Article 8 of Double Taxation Avoidance Agreement (hereinafter referred as “DTAA”) and he had drawn our attention to Article 8 of India - Singapore Treaty which provides as under : ARTICLE 8 SHIPPING AND AIR TRANSPORT 1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State. M/s. PACC Container Line Pvt. Ltd. 14 2. The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency engaged in the operation of ships or aircraft. 3. Interest on funds connected with the operation of ships or aircraft in international traffic shall be regarded as profits derived from the operation of such ships or aircraft, and the provisions of Art.11 shall not apply in relation to such interest. 4. 4. For the purposes of this Article, profits from the operation of ships or aircraft in international traffic shall mean profits derived from the transportation by sea or air of passengers, mail, livestock or goods carried on by the owners or lessees or charterers of the ships or aircraft, including profits from : (a) the sale of tickets for such transportation on behalf of other enterprises; (b) the incidental lease of ships or aircraft used in such transportation; (c) the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers) in connection with such transportation; and (d) any other activity directly connected with such transportation.” 10. It was submitted by the ld.AR that Article 8 of DTAA of India – Singapore will have overriding effect over the provisions of the Income Tax Act in terms of section 90 of the I.T. Act. In view of the overriding effect, the profit derived by the assessee from the operation of the ships shall be taxable in Singapore only. The Assessing Officer, was bound to apply the provisions of India – Singapore Treaty even at the stage of passing the summary order u/s 172(4) of the Act. It was further submitted that as Article 8 is fully applicable, the occasion for applicability of Article 24 does not arise. It was submitted that the Assessing Officer had wrongly invoked Article 24 of the DTAA for the purposes of Limiting of Relief to the assessee. He has drawn our attention to Article 24 which is to the following effect: M/s. PACC Container Line Pvt. Ltd. 15 “Article 24 – Limitation of Relief,” reads as follows: 1. Where this Agreement provides (with or without other conditions) that income from sources in a Contracting State shall be exempt from tax, or taxed at a reduced rate in that Contracting State and under the laws in force in the other Contracting State the said income is subject to tax by reference to the amount thereof which is remitted to or received in that other Contracting State and not by reference to the full amount thereof, then the exemption or reduction of tax to be allowed under this Agreement in the first-mentioned Contracting State shall apply to so much of the income as is remitted to or received in that other Contracting State. 2. However, this limitation does not apply to income derived by the Government of a Contracting State or any person approved by the competent authority of that State for the purpose of this paragraph. The term "Government" includes its agencies and statutory bodies. 11. It was further submitted by the ld.AR that as per article 24, the appellant is only liable to be taxed on the receipts which are received in India and the amount remitted to a ‘Contracting State’ is taxable. It was the case of the assessee that no amount was received in India and the assessee, he had also drawn our attention to the additional evidence filed by the assessee for this purposes, wherein it was mentioned that the agent namely Bertling Logistic, Germany, cargo booking agent ,while remitting the freight to the appellant has adjusted the commission and remitted only net freight. 12. The Ld. AR had also drawn our attention to paragraph 8 of the remand report wherein the assessing officer had mentioned as under:- “ 8. In view of the above elaborate discussions it is clear that article 24 squarely applicable to the facts of the present case. The claim made by the local agent part of the freight was not remitted to received in Singapore due to adjustment of the same to the commission do not come to its rescue and hence it cannot be entertained/acceptable. Here in this case the local evidence failed to prove that short remitted freight in question had been remitted to or received in Singapore and of the same to tax there. Therefore the local agent M/s J.M. Baxi & Co is not eligible for for relief under DTAA as per its claim ..........” M/s. PACC Container Line Pvt. Ltd. 16 13. Per contra, the ld.DR had submitted that the Assessing Officer as well as ld.CIT(A) had rightly applied the DTAA in the present case and our attention was drawn to Paras 3 to 8 of the assessment order which are to the following effect : 14. Ld.DR. had further drawn our attention to Paras 10.2 to 10.6 of the order of CIT(A) which are to the following effect: M/s. PACC Container Line Pvt. Ltd. 17 M/s. PACC Container Line Pvt. Ltd. 18 M/s. PACC Container Line Pvt. Ltd. 19 M/s. PACC Container Line Pvt. Ltd. 20 15. We have heard the rival contentions of the both the parties and perused the material available on record. The bare reading of Article 8 of India - Singapore Treaty make it abundantly clear that the profit derived by the enterprise of the “Contract State” from the operations of ships shall be taxable only in that state, namely Singapore. In the present case, the Assessing Officer had mentioned in the assessment order that the assessee is a resident of Singapore and as per the assessment order, the entire freight earned by the freight beneficiaries of the assessee is exempt from tax in India and is required to be taxed in Singapore. Undoubtedly, the Article 8 governs the field, and the assessee is entitled to the benefit of Article 8 of India - Singapore Treaty. 16. It is the case of the Revenue as well as the assessee that the provisions of DTAA are applicable even at the stage of passing order u/s 172(4) of the Act. Only on account of the above said fact, the Assessing Officer had given the benefit of the amount remitted / received at Singapore to the assessee, in case the Assessing Officer was not of the opinion that DTAA is not applicable, then the entire amount was required to be taxed in India. Therefore, there is no quarrel about the applicability of Article 8 of DTAA and hence, the assessee was required to be taxed in “Contract State” namely, Singapore on the profit earned by it. However, the Article 8 cannot be applied on stand-alone basis and the effect to the other articles mentioned in DTAA more particularly, Article 24 was required to be given. 17. As mentioned hereinabove Article 24 is limiting the Relief only to the extent of amount which is ‘remitted to’ or ‘received’ in that other Contracting State and has not referred the full amount. The M/s. PACC Container Line Pvt. Ltd. 21 literal meaning is required to be given the word “remitted to or received” while applying the Article 24 of DTAA. By any stretch of reasoning, the word “remitted” cannot be read as accrued for the purposes of Article 24. Further, it is not the case of the assessee before the lower authorities or before us that the entire amount was accrued in favour of the assessee at Singapore. In the present case, as per the undisputed fact for the year under consideration, the agent filed an application on 29.09.2014 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. 18. It is an admitted case of the assessee as well as the Assessing Officer that there was short of remittance of USD 22,493 for the year under consideration and that was on account of commission @ 3.5% of the gross amount. In the additional evidence filed by the assessee before ld.CIT(A), the assessee has placed on record the invoices / receipts issued by Bertling at Pages 17 to 23 of the paper book to demonstrate that the money was advanced by the cargo commission agent and only the amount mentioned hereinabove i.e., USD 621169 was remitted to the assessee at Singapore. In our considered opinion, for the present controversy, it is undoubtedly clear M/s. PACC Container Line Pvt. Ltd. 22 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. However, the case would have been different if the assessee had filed on record before us or before the lower authorities, the return of income, whereby the assessee had claimed the amount on accrual basis and debited the amount paid USD 22,493 as commission in its books of account or any other documents substantiating the claim. In the present case, 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. 19. We may further point out that the ld.AR during the course of argument has not relied upon any other judgment. However in the Paper Book filed by him, there is a reference to two decisions namely, Alabra Shipping Pvt. Ltd. Singapore Vs. ITO (International Taxation), Gandhidham (ITA 392/RJT/2014 dt.09.10.2015) at Page 79 of the paper book and also the decision in the case of Emirates Shipping Line, FZE Vs. ADIT (WP(Civil) No.9780 of 2009 dt.26.07.2012) at Page 84 of the paper book. In our opinion, the finding recorded by the Tribunal in the first decision namely Alabra Shipping Pvt. Ltd (supra) does not come to the rescue of the appellant for the reasons mentioned at Para 8 M/s. PACC Container Line Pvt. Ltd. 23 of the said decision, which are self-explanatory. We are reproducing the said Para 8 hereinbelow for ready reference. “8. As regards reliance of the authorities below on the decision of this Tribunal, in the case of Abacus International (supra), suffice to say that it was in the context of interest income of the assessee and there was nothing on record to suggest that such an income was to be taxed in Singapore on accrual basis, rather than on receipt basis. The Assessing Officer thus derives no advantage from this decision. Having said that we may add that we are in complete agreement with the coordinate bench that, in order to come out of the mischief of Article 24, the onus is on the assessee is to show that the amount is remitted to, or received in Singapore, but then such an onus is confined to the cases in which income in question is taxable in Singapore on limited receipt basis rather than on comprehensive accrual basis. However, in a case in which it can be demonstrated, as has been demonstrated in the case before us, that the related income is taxable in Singapore on accrual basis and not on remittance basis, such an onus does not get triggered.” In the present case, as mentioned above, the assessee has not discharged his onus as no document was filled in this regard. 20. The second decision relied upon by the ld.AR in the paper book namely, Emirates Shipping Line, FZE Vs. ADIT (supra) is not relevant for the purposes of determining the present controversy as the judgment is relevant to whether the provisions of DTAA can be invoked for the purposes of determining at the stage of application of section 172(4) r.w.s 172(7) of the Act or not. 21. 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 Vs. ADIT (supra) 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 M/s. PACC Container Line Pvt. Ltd. 24 this regard. Accordingly, the appeal of assessee in ITA 25/Hyd/2018 for A.Y. 2015-16 is dismissed. 22. Now, coming to the remaining appeals i.e., ITA 26/Hyd/2018, ITA 27/Hyd/2018, ITA 550/Hyd/2021 and ITA 551/Hyd/2021 which are identical to the facts and issues raised in lead appeal ITA 25/Hyd/2018, we hold that our decision would apply mutatis mutandis. 23. In the result, all the appeals of the assessee are dismissed. A copy of this common order be placed in their respective case files. Order pronounced in the Open Court on 27 th April, 2022. Sd/- Sd/- (LAXMI PRASAD SAHU) ACCOUNTANT MEMBER (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 27 th April, 2022. TYNM/sps Copy to: S.No Addresses 1 M/s. PACC Container Line Pvt. Ltd. Singapore, Rep., by its Indian Agent M/s. J.M. Baxi & Co. C/o. Sri K. Vasantkumar, Sri A.V.Raghuram, Sri P. Vinod & Ms. M. Neelima Devi, Advocates, 610, Babukhan Estate, Basheerbagh, Hyderabad – 1. 2 ITO(International Taxation), Nellore. 3 CIT(Appeals)-10, Hyderabad. 4 CIT(IT & TP), Hyderabad. 5 DR, ITAT Hyderabad Benches 6 Guard File By Order