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TMI Blog2023 (11) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25.01.2022 for the Assessment year 2019- 2020 and to direct the 1st respondent to condone the delay in filing Form-67 and grant the Foreign Tax Credit claim of Rs. 23,23,484/-. 2. The petitioner was employed in Kenya during the year 2016-2018 as CEO. For the financial year 2018-2019, the petitioner was a resident of India, including his Kenya income, he has filed his Indian Income Tax return, and claimed the benefit of Foreign Tax Credit (FTC) under Section 90/91 of the Income Tax Act, 1961, read with Article 24 of the India-Kenya Double Taxation Avoidance Agreement. During the year, he had income of both Kenya and India. The petitioner has filed the income tax return for the income at Kenya. According to the petitioner, he is entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed the impugned order under Section 264 of the Act rejecting the FTC claim, wherein it was held that filing of Form-67 along with the return of income under Section 139(1) was statutory obligation which was not complied with and further, a revised return was not filed and hence FTC could not be granted. 5. At the same time, the respondent accepted that Form-67 which was uploaded on 02.02.2021 before the Section 143(1) order passed on 26.03.2021. Therefore, the petitioner approached this Court by filing the present Writ Petition. 6. According to the learned counsel appearing for the petitioner, the procedure under Rule 128 is directory in nature and it is not mandatory. The Department has rejected the request of the petitioner. He furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Writ Petition. 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. In the present case, the petitioner initially worked at Kenya and subsequently, he became the resident of Indian from the assessment year 2018-2019 and 2019-2020. The petitioner admitted the fact that he has filed his return in India on 10.08.2019. The intimation under Section 143(1) was issued on 26.03.2020. However, he has filed the return without Form-67 which is required to be filed under Rule 128 to claim the benefit of FTC and the same came to be filed on 02.02.2021 which was well before the completion of the assessment year. The intimation under Section 143(1) was issued from the CPC only on 26.03.2021. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. The filing of FTC in terms of the Rule 128 is only directory in nature. The rule is only for the implementation of the provisions of the Act and it will always be directory in nature. This is what the Hon'ble Supreme Court had held in the above cases when the returns were filed without furnishing Form 3AA and the same can be filed the subsequent to the passing of assessment order. 12. Further, in the present case, the intimation under Section 143(1) was issued on 26.03.2021, but the FTC was filed on 02.02.2021. Thus, the respondent is supposed to have provided the due credit to the FTC of the petitioner. However, the FTC was rejected by the respondent, which is not proper and the same is not in accordance with law. Therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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