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TMI Blog2022 (3) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute that the Assessee is entitled to claim FTC. On perusal of provisions of Rule 128 (8) (9), it is clear that, one of the requirements of Rule 128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns. In our view, this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No.67. This view is fortified by the decision of coordinate bench of this Tribunal in case of Ms.Brinda Kumar Krishna [ 2022 (2) TMI 752 - ITAT BANGALORE ] It s a trite law that DTAA overrides the provisions of the Act and the Rules, as held by various High Courts, which has also been approved by Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit and the tax credit cannot be denied. 43,46,900/- 3. On the facts and in the circumstances of the case and in the law, the Ld Commissioner of Income Tax (Appeals) has erred in denying FTC to the assesse ignoring the law that subordinate legislation cannot override the provisions of the statue. He ought to have considered that the provisions of Rule 128 are procedural in nature and cannot override the substantial right of the assesse granted under section 90 43,46,900/- 4. On the facts and in the circumstances of the case and in the law, the Ld Commissioner of Income Tax (Appeals) has erred in denying FTC to the assesse by ignoring the law that provisions of DTAA and Article 23 of the DTAA with Japan cannot be overriden by Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order of the Ld.AO. The CIT(A) held that the Assessee has not filed Form 67 before the time allowed under section 139(5) of the Act, and therefore Form 67 is non-est in law. The CIT(A) also held that provisions of Rule 128(8) &(9) are mandatory in nature. The CIT(A)rejected the contention of the assessee that filing of Form 67 is a procedural requirement and noncompliance thereof does not disentitle the Assessee of the FTC. Aggrieved by the order of Ld.CIT(A), assessee preferred appeal before this Tribunal. The assessee has filed an application for condonation of delay of 257 days in filing appeal before this Tribunal. It was submitted that the appeal was supposed to be filed on or before 17.05.2020. However, the same is filed on 29.01.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns. In our view, this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No.67. This view is fortified by the decision of coordinate bench of this Tribunal in case of Ms.Brinda Kumar Krishna vs.ITO in ITA no.454/Bang/2021 by order dated 17/11/2021. 7. It's a trite law that DTAA overrides the provisions of the Act and the Rules, as held by various High Courts, which has also been approved by Hon'ble Supreme Court in case of Engineering Analysis Centre of Excellence (P.) Ltd. reported in (2021) 432 ITR 471. 8. We accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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