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TMI Blog2023 (3) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Act, the assessee is fully entitled to the FTC. The Tribunal also observed that issue of allowability of FTC is not a debatable issue and only one view is possible and thus seeking rectification under Section 154 could be resorted by the assessee. We hold that claim of FTC does not get controlled solely by the delay in filing of Form 67 prescribed under Rule 128(9) of the Income Tax Rules. Hence, we set aside the action of the CIT(A) and direct the Assessing Officer to take cognizance of Form 67 so filed and grant FTC as may be entitled to the assessee in accordance with law. Appeal of the assessee is allowed. - I.T.A. No.1399/DEL/2022 - - - Dated:- 15-3-2023 - Shri Kul Bharat, Judicial Member And Shri Pradip Kumar Kedia, Accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taly was denied. The assessee sought rectification under Section 154 of the Act vide application dated 02.04.2021. A rectification order dated 22.05.2021 was issued maintaining the original position and thus the foreign tax credit was continued to be denied. The assessee thereafter complied with Rule 128 of the Income Tax Rules and filed Form 67 on 15.07.2021. The assessee pursued the matter with the CIT(A) seeking relief. However, the CIT(A) vide order dated 18.05.2022 refused to entertainment the relief asked by the assessee on the ground that requirement of filing of Form 67 online before the due date of filing of return for the purposes of seeking foreign tax credit is a mandatory requirement laid down by Rule 128 of the Income Tax Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee thus contends that a combined reading of Section 90 of the Act read with Article 24(3)(a) of DTAA provides in no uncertain terms that Italian tax paid shall be allowed as credit against Indian Tax. Neither Section 90 nor DTAA provides that FTC shall be disallowed for mere non compliance with any procedural requirement of enabling nature. The assessee thus contended that FTC is assessee s vested right as per Article 24(3)(a) of the DTAA r.w. Section 90 of the Act and such FTC approved to the assessee cannot be denied on the grounds of non compliance of procedural requirements prescribed in the Rules which are subservient to the Act as well as DTAA. The assessee further contended that provisions of DTAA override the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that issue of allowability of FTC is not a debatable issue and only one view is possible and thus seeking rectification under Section 154 could be resorted by the assessee. Similar view has been taken in 42 Hertz Software India Pvt. Ltd. vs. ACIT, ITA No.29/Bang/2021 order dated 7th March, 2022 . A reference is made to another Co-ordinate Bench decision in the case of Vinodkumar Lakshmipathi vs. CIT(A) NFAC, ITA No.680/Bang/2022 order dated 06.09.2022; Sonakshi Sinha vs. CIT(A) NFAC Delhi, ITA no.1704/Mum/2022 order dated 28th September, 2022 and host of other judgments referred to and relied upon. 10. Having regard to the delineation made and in consonance with the view expressed by the Co-ordinate Benches, we hold that claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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