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TMI Blog2023 (3) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... n of law as per Rule 128(9) of I.T. Rules, 1962 and clarified that Form 67 in prescribed form is required to be filed under Rule 128(9) of IT Rules, 1962 can be filed on or before extended due date for filing return of income u/s. 139(4) of the Act and said clarification has been made applicable from assessment year 2022-23 - it is very clear that even in a case belated filing of Form 67, the AO should consider tax paid by the assessee in other countries when income pertains to said tax credit has been offered to tax in India as per domestic tax laws. Therefore, we are of the considered view that, the AO is completely erred in denying credit for foreign tax for non-filing of Form 67 within the due date specified u/s. 139(1) of the Act. CIT(A), without appreciating facts simply sustained additions made by the AO and thus, we direct the AO to allow credit for foreign tax paid in other countries as per Form 67 filed by the assessee. Appeal filed by the assessee is allowed. - ITA No.: 846/Chny/2022 - - - Dated:- 28-2-2023 - Shri V. Durga Rao, Hon ble Judicial Member And Shri Manjunatha. G, Hon ble Accountant Member For the Appellant : Shri. V. Balaji, CA For the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular No. 333 dated 02 April 1982. It is prayed that the Ld. Jurisdictional Assessing Officer be directed to grant the FTC of Rs. 36,25,781. Ground No. 2: Order of the Hon'ble Income Tax Appellate Tribunal (ITAT) not followed by the Ld. CIT(A) On the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in not following the order of the ITAT, Bangalore in case of Ms. Brinda RamaKrishna vs. The Income Tax Officer, Ward 5(3)(1) on the premise that the same has no relevance to the facts of the case of the Appellant. It is prayed the decision of Hon'ble Bangalore ITAT in the case of Ms. Brinda Ramakrishna vs. The Income Tax Officer, Ward 5(3)1) is relevant to the facts of the Appellant and the same has also been followed by the Hon'ble Bangalore ITAT in the case of Vinodkumar Lakshmipathi vs. CIT(A) NFAC Delhi (TA No.680/Bang/2022) wherein the return of income as well as Form 67 in support of claim of FTC were filed after the due date to file the return of income under Section 139(1) of the Act. Further, it is also prayed that the principles of judicial discipline require that the orders of the higher appellate authorities should be fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Limited from 01.04.2018 to 30.11.2018 and from 01.12.2018 to 31.03.2019, he was employed with BG Exploration and Production India Limited. The appellant has been sent on a short term international assignment to Philippines for the period from 01.08.2017 to 30.11.2018, during which salary was received from Shell India Market Private Limited, after tax deduction at source. On the other hand, salary received towards services rendered in Philippines was taxed in Philippines as per their domestic tax laws. That apart, the appellant was in receipt of dividend income in Netherlands, which is offered to tax in Netherlands as per their domestic tax laws. Further, said income is also offered to tax in India being the country of residence. The assessee has filed return of income for the assessment year 2019-20 on 01.10.2019, although he supposed to have filed return of income on or before 31.08.2019. The assessee has claimed credit for tax paid in Philippines and Netherlands as per the provisions of DTAA and also E-filed form 67 on 30.09.2019 for claiming foreign tax credit of Rs. 36,25,781/-. The return of income filed by the assessee has been processed u/s. 143(1)(a) of the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the argument of the assessee that, he has filed Form 67 on 01.10.2019, which is beyond due date prescribed u/s. 139(1) of the Act, but within the extended due date for filing return of income u/s. 139(4) of the Act. He was further argued that, filing Form 67 in prescribed form is only a directory in nature, but not mandatory and thus, when the assessee has made available said form to the Assessing Officer at the time of assessment proceedings, he ought to have considered Form 67 filed by the assessee and allow credit for tax paid in other countries. 10. Having heard both the sides and considering relevant materials on record, we find that this issue is squarely covered in favour of the assessee by the decision of ITAT, Chennai in the case of Shri. Govindarajan Roopkumar vs ADIT in ITA No. 609/Chny/2021, where under identical circumstances, the Tribunal by following the decision of ITAT Bangalore in the case of Ms. Brinda Ramakrishna vs ITO in ITA No. 454/Bang/2021, held that when the assessee has filed Form 67 on or before due date for filing return of income u/s. 139(4) of the Act, the AO ought to have considered said Form and allow credit for tax paid in other countries. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 90 nor DTAA provides that FTC shall be disallowed for non-compliance with any procedural requirements. FTC is Assessee 's vested right as per Article 24(4)(a) of the DTAA read with Section 90 and same cannot be disallowed for non-compliance of procedural requirement that is prescribed in the Rules. 11. We, further noted that CBDT has issued a notification on 18.08.2022 and explained the position of law as per Rule 128(9) of I.T. Rules, 1962 and clarified that Form 67 in prescribed form is required to be filed under Rule 128(9) of IT Rules, 1962 can be filed on or before extended due date for filing return of income u/s. 139(4) of the Act and said clarification has been made applicable from assessment year 2022-23. From the above, it is very clear that even in a case belated filing of Form 67, the AO should consider tax paid by the assessee in other countries when income pertains to said tax credit has been offered to tax in India as per domestic tax laws. Therefore, we are of the considered view that, the AO is completely erred in denying credit for foreign tax for non-filing of Form 67 within the due date specified u/s. 139(1) of the Act. The CIT(A), without apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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