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TMI Blog2024 (1) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... taxability of income where the countries which don t have agreements. Further there is no amendment in the Section 90 of the Act with regard to claim of FTC and in such cases Rule procedures are directory and not mandatory. As decided in the case of Ms. Brindra Rama Krishna, [ 2022 (2) TMI 752 - ITAT BANGALORE] Hon ble Tribunal has observed that the filling of Form No.67 is not mandatory but directory There is no amendment on these aspects in the Section 90 of the Act and the Rules cannot override the Act and therefore the filing of Form.No 67 is not mandatory but it is directory. Accordingly, we considering the facts, circumstances and ratio of the judicial decisions restore the disputed issue for limited purpose to the file of the assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign country Maynmar. The assessee has filed the return of income ITR 2 for the A.Y. 2021-22 on 6-11-2021 disclosing a total income of Rs. 57,36,000/-.Whereas, the assessee has included the foreign salary income of Rs. 13,99,110/- in the total income disclosed and also tax of Rs. 2,39,346/- paid/deducted in Maynmar was claimed as Foreign Tax Credit(FTC). The assessee is eligible to claim Tax Relief U/sec 90 of the Act as per Double Taxation Avoidance and Agreement (DTAA) with the government of Maynmar and the return of income was processed under section 143(1) of the Act on 05.07.2022 accepting the income as per the return of income filed by the assessee but the no relief was granted under Section 90 of the Act in respect of the Foreign T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income Tax Department on 6.07.2022 in order to comply with Rule 128 of Income Tax Rules. The CIT(A) has considered the fact of filing Form No.67 and is of the opinion that it is a mandatory requirement as per the I T Rules and the revenue has fallowed and further the DTAA should take a precedence over domestic laws for determining the eligibility of FTC claim and also there is no power to condone the delay in filling the Form No. 67 and the CIT(A) has confirmed the action of A.O and dismissed the appeal. We find in respect of foreign tax credit (FTC), the assessee is required to file Form.no. 67 with details of the statement of income from a country or specified territory outside India and foreign tax credit and further rule 128 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee 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 returns. In our view, this requirement cannot be treated as mandatory rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC 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 Kumar Krishna vs. ITO in ITA No. 454/Bang/2021 by order dated 17/11/2021. 7. It's a tribe law that DTAA overrides the provisions of the Act and the Rules, as held by various High Courts, which has also been approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 178 Taxman 505 (Supreme Court) o GE India Technology centre P Ltd. Vs. CIT (2010) 193 Taxman 234 (Supreme Court) o Engineering Analysis Centre of Excellence P Ltd Vs CIT (2021) 125 taxmann.com 42 (Supreme Court) (Pg 106-109 of Paper Book 2- Para 25 & 26) o CBDT Circular No. 333 dated 02.04.82 137 ITR (St.) It was submitted that when there is no condition prescribed in DTAA that the FTC can be disallowed for non-compliance of any procedural provision. As the provisions of DTAA override the provisions of the Act, the Assessee has vested right to claim the FTC under the tax treaty, the same cannot be disallowed for mere delay in compliance of a procedural provision. 14. The learned Departmental Representative reiterated the stand o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the issue in the proceedings under Section 154 of the Act, even if it involves long drawn process of reasoning, the answer to the question can be only one and in such circumstances, proceedings under Section 154 of the Act can be resorted to. Even otherwise the ground on which the Revenue authorities rejected the Assessee's application under Section 154 of the Act was not on the ground that the issue was debatable but on merits. I therefore do not agree with the submission of the learned Departmental Representative in this regard. 17. In the result, the appeal is allowed." 9. We considering the facts, circumstances provisions of the Act and judicial decisions are of the opinion that there is no amendment on these aspects in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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