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TMI Blog2022 (9) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... the file of the CIT(A) to adjudicate afresh on merits considering the observations in above paragraphs and the ratio of judicial decisions. Further the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information for early disposal of appeal and allow the grounds of appeal of the assessee for statistical purposes. - ITA NO.1844/MUM/2022 & 1845/MUM/2022 - - - Dated:- 20-9-2022 - SHRI BASKARAN B.R, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER Appellant by : None Respondent by : Shri. Manoj Sinha.DR ORDER PER PAVAN KUMAR GADALE, JM: These are the two appeals filed by the assessee against the separate orders of Commissioner of Income Tax Appeals(CIT(A))-National Faceless Appeals Centre Delhi, passed under Section 143(3) and 250 of the Income tax Act 1961. Since the issues in these appeals are common and identical, for the sake of convenience these appeals are clubbed, heard and consolidated order is passed. We shall take up ITA No. 1844/M/22 for assessment year 2018-19 as the lead case and the facts narrated. The assessee has raised the following grounds of appeal. i) On the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was issued. Whereas, the Assessing Officer (A.O.) based on the submissions and information has accepted the income as per the return of income filed by the assessee but the no relief was granted under Section 90 of the Act in respect of the Foreign Tax Credit(FTC) and assessed the total income of ₹. 2,07,95,030/- and passed the order under section 143(3) r.w.s 143(3A) and 143(3B) of the Act dated 21.10.2020. 3. Aggrieved by the order of the A.O. the assessee has filed an appeal with the CIT(A), whereas the CIT(A) considered the grounds of appeal, submissions of the assessee and the findings of the scrutiny assessment in respect of granting of FTC tax relief. The CIT(A) was not satisfied with the explanations on the claim of FTC and has confirmed the action of the A.O. and dismissed the appeal. Aggrieved by the CIT(A) order, the assessee has filed an appeal with the Hon'ble Tribunal. 4. At the time of hearing none appeared on behalf of the assessee and we considered the material on record and the submissions of the Ld.DR supporting the order of CIT(A). 5. We heard Ld.DR submissions and perused the material on record. The assessee has raised the grounds of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were justified in refusing to FTC. We have perused he submissions advanced by both sides in light of records placed before us. 6. There is no 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 vs. ITO in IT A No. 454/Bang/2021 by order dated 17/11/2021. 7. It s a tribe 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, hold that FTC cannot be denied to the assessee. Assessee is directed to file the relevant details/evidence in support of its claim. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form No. 67 was available before the Assessing Officer when the intimation under Section 143(1) of the Act dated 28.05.2020 was passed. He pointed out that the Assessing Officer or the CIT(A) did not dismiss the Assessee application for rectification under Section 154 of the Act on the ground that the issue was debatable but rather the decision was given that the relevant rule was mandatory and hence non furnishing of Form No. 67 before the due date under Section 139(1) of the Act was fatal to the claim for FTC. 16. I have given a careful consideration to the rival submissions. I agree with the contentions put forth by the learned counsel for the Assessee and hold that (i) Rue 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No. 67; (ii) filing of Form No. 67 is not mandatory but a directory requirement and (iii) DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. I am of the view that the issue was not debatable and there was only one view possible on the issue which is the view set out above. I am also of the view that the issue in the proceedings under Section 154 of the Act, even if it involves ..... X X X X Extracts X X X X X X X X Extracts X X X X
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