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TMI Blog2023 (5) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... t as framed by the CIT(A) is bad-in- eyes of the law and fact. 2) That the CIT(A) did not provide reasonable and adequate opportunity of being heard to the assessee to know his view and point before dismissed the appeal. 3). That the assessee is a salary person. She submitted own ITR self as a salary income. She did not have proper knowledge of Income Tax. That time she submitted ITR self. She received intimation u/s 143(1) on-line dated 15.03.2021, after that she check this intimation and found a demand created by department. After that she meet proper income tax officer and discussed they told, Please submitted rectification u/s 154 after that she submitted rectification. The rectification processed date 01.07.2022 and our rectificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be furnished on or before due date specified for furnishing the return of income. On perusal of the intimation shows that assessee filed her return of income within due date i.e. 10.01.2021 and the original return of income was filed on 30.12.2020. Thereafter, the assessee revised return of income on 09.02.2021 and claimed FTC relief u/s 90/91 of the Act. It is also observed that the assessee did not file Form No.67 for the claim as all the required conditions have not been made, Foreign Tax Credit relief could not be allowed to the assessee. 4. Aggrieved against this, the assessee filed appeal before this Tribunal. 5. Ld. Counsel for the assessee reiterated the submissions as made in the written submissions. For the sake of clarity, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 90/91 of Rs.330400.00 DTAA. The rectification processed dated 01.07.2022 and disallowed our claim on the ground, that the appellant failed to furnish form 67 on or before the due date of furnishing the return of Income as prescribed u/s 139(1) of the act and suggested to file appeal against intimation order 143(1) to CIT(A). 7). That the appellant submitted a appeal to CIT(A) vide ack. no. 416819290080822 dated 08.08.2022. Our learnt officer dismissed appeal without given any notice for haring, without provide any adequate opportunity of being heard to the appellant to know his view and point before dismissed the appeal. 8). There is no dispute that the appellant is entitled to claim FTC. On perusal of provisions of Rule 128, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit within which the declaration is to be filed is not mandatory but is directory. The same is erroneous and contrary to the unambiguous language contained in Section 10B (8) of the IT Act. We hold that for claiming the benefit under Section 10B (8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 1139(1) are to be satisfied and both are mandatorily to be complied with. Accordingly, the question of law is answered in favour of the Revenue and against the assessee. The orders passed by the High Court as well as ITAT taking a contrary view are hereby set aside and it is held that the assessee shall not be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of 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 Ramakrishna vs. ITO in ITA No. 454/Bang/2021 by order dated 17/11/2021. 13) That the It's a trite law that DTAA overrides the provisions of the Act 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. 14) That the we accordingly, hold that FTC cannot be denied to the appellant. Appellant is directed to file the relevant details/evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1449 of 2022 order dated 11.07.2022. It is contended that Ld.CIT(A) has submitted that reliance is misplaced. The assessee has placed reliance on the judgement of Hon'ble Supreme Court rendered in the case of Engineering Analysis Centre of Excellence (P.) Ltd. reported in (2021) 432 ITR 471 (SC). The Co-ordinate Bench of the Tribunal in ITA No.29/Bang/2021 in the case of 42 Hertz Software India Pvt. Ltd. vs ACIT order dated 07.03.2022 wherein the Tribunal has observed as under:- 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 return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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