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TMI Blog2023 (5) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... formity thereof. Rule 128(9) of the Rules cannot be read in isolation. Rules must be read in the context of the Act and the DTAA impacting the rights, liabilities and disabilities of the parties. We allow the appeal, and direct AO to verify the details of the foreign tax paid by the assessee on the earnings at foreign source and take a view inconformity with the established law as discussed - Appeal of the assessee is allowed. - ITA No. 102/Hyd/2023 - - - Dated:- 24-5-2023 - Shri Rama Kanta Panda, Accountant Member And Shri K.Narasimha Chary, Judicial Member For the Assessee : Shri C.S. Subramaniyam, AR For the Revenue : Shri Kumar Aditya, DR ORDER PER K. NARASIMHA CHARY, JM: Aggrieved by the order dated 29/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inasmuch as Article 25(2)(a) of India-USA Double Taxation Avoidance Agreement (DTAA) vests a right in the assessee to claim the credit thereof. He placed reliance on the decisions reported in Babu Rao Atluri Vs. DCIT in ITA No. 108/Hyd/2022, ITAT, Hyderabad B Bench, Ms. Brinda Rama Krishna Vs. LTO, ITAT, SMC-B Bench, Bangalore, M/s. 42 Hertz Software India (P) Ltd Vs. ACIT, Sri Govindarajan Roopkumar Vs. ADIT, ITAT B Bench, Chennai and Sanjay Patil Vs. A.O. Circle-3(2), ITAT, Surat in ITA No. 189/Srt/2021, dt. 18/05/2022. He also placed reliance on the order of the Co-ordinate Bench of this Tribunal in the case of Purushothama Reddy Vankireddy vs. ADIT (INTN Taxation)-1, in ITA No. 526/Hyd/2022, dt. 05/12/2022. 5. Per contra, Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (1992 Supp (1) SCC 21), Sambhaji Vs. Gangabai (2008) 17 SCC 117 and a lot many decisions of the Hon'ble Apex Court including the case in Union of India Vs. Azadi Bachao Andolan (2003) 263 ITR 706 (SC) etc. and reached a conclusion that since Rule 128(9) of the Rules does not provide for disallowance of FTC in the case of delay in filing Form No. 67 and such filing within the time allowed for filing the return of income under section 139(1) of the Act is only directory, since DTAA over rides the Act, and the Rules cannot be contrary to the Act. 8. We find from Article 25(2)(a) of the DTAA that where a resident of India derives income which, in accordance with the provisions of the convention, may be taxed in the United Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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