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TMI Blog2022 (12) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, therefore, these were heard together and are being disposed-of by this common order. ITA No.108/Hyd/2022 (AY 2018-19) 2. There is a delay of '66' days in filing of this appeal by the assessee for which the assessee has filed a condonation application along with an affidavit explaining the reasons for such delay. After considering the contents of the condonation application and after hearing the ld. DR , the delay in filing of this appeal by 66 days is condoned and the appeal is admitted for adjudication. 3. Facts of the case, in brief, are that the assessee is an individual and is proprietor of Adithya Enterprises and engaged in the business of Exporting Goods and providing Technical and management Services to Suncrest Engineering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , inasmuch as the Tax Deduction Certificates were received from the foreign deductor from Zambia belatedly, the said Form No.67 was filed belatedly by 14 days. The reasons attributed by the Zambian deductor are that their tax jurisdiction follow different period for taxing the income and have different due dates for filing the return in comparison to India. 5.1 The assessee further submitted that the entitlement for claiming FTC emerges from the DTAA which India has entered with different countries. Referring to various decisions, it was aruged that the Provision of DTAA always have an overriding effect over the provisions of Income Tax Act, 1961 and the Constitution of India provides that State shall endeavor to foster respect for Interna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rule which is mandatory and hence non furnishing of Form No.67 before the due date u/s. 139(1) of the Act is a stringent requirement for the said claim. Hence, CPC made the disallowance. There is no defect in the intimation. So far as the reasonableness of the Foreign Tax Credit or eligibility is concerned, the CPC cannot ignore or waive the procedural requirement. As the present appellate authority also does not have the power to condone delay in filing the Form 67 for claim of Foreign Tax Credit, this ground is dismissed." 7. Aggrieved with such order of the NFAC, the assessee is in appeal before the Tribunal by raising the following grounds:- 1) The order of the Ld. CIT(A) is erroneous both on facts and in law in not allowing the Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and the Rules. Therefore, merely because there is a delay in filing the Form-67, the Foreign Tax Credit cannot be denied to the assessee. 9. The ld.DR on the other hand, referring to the decision of the Vishakapatnam Bench of the Tribunal in the case of Muralikrishna Vaddi vs ACIT vide ITA No.267/Viz/2021 order dated 14.06.2022 for AY 2018-19 submitted that the Tribunal in the said decision has held that the word "shall' used in the Rule 128(9) is mandatory in nature and not directory. He accordingly submitted that order of the ld.CIT(A) and this issue to be upheld. 10. We have heard the rival arguments made by both the sides, perused the orders of the AO and NFAC and the paper book filed on behalf of the assessee. We have also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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, hold that FTC cannot be denied to the assessee. Assessee is directed to file the relevant details/evidences in support of its claim. We thus remand this issue back to the Ld.AO to consider the claim of assessee in accordance with law, based on the verification carried out in respect of the supporting documents filed by assessee. Accordingly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Ld. CIT(A) is erroneous both on facts and in law in not allowing the Foreign Tax credit claimed under section 90/90A to the extent of Rs.1,03,57,519/- 2) the learned CIT(A) while agreeing that the DTAA should take precedence over domestic laws, erred in observing that the same is not applicable with regard to procedural requirements. 3) The Ld. CIT (A) while observing so, totally ignored the settled principle that the requirement of filing of Form (Form No.67) 'along with the return' is 'directory' and not mandatory, as was held by various legal fora, including the Apex Court, particularly in the light of the fact that the quantum of relief claimed u/s 90/90A at Rs.1,03,57,519/- was not disturbed in any m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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