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TMI Blog2024 (2) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Act, 1961 (hereinafter referred as the Act ) 2. At the time of hearing, the Ld. AR of the assessee submitted that there is a delay in filling the appeal before Hon ble Tribunal and the assessee has filed an application for condonation of delay. Whereas, the facts mentioned in the application are reasonable and the Ld. DR has no specific objections. Accordingly, we condone the delay and admit the appeal. 3. The assessee has raised the following grounds of appeal: 1. The commissioner of Income Tax (Appeals), National faceless Appeal Centre, Delhi erred in confirming the action of AO in not granting Foreign Tax Credit relief amounting to ₹ 83,445/- u/s 90 of the Act, as claimed by the Appellant in his return of income. The appellant submits that being a resident of India is his return of income filed in India, he has offered income from house property aggregating to ₹ 11,93,709/- earned in United Kingdom (UK) on which he has paid taxes of ₹ 83,445/0 in UK; hence the AO ought to have allowed foreign tax credit of ₹ 83,445/- u/s 90 of the Act while assessing Appellant s total income. 4. The brief facts of the case are that, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax credit (FTC) as the assessee has filed the From No. 67 beyond the due date u/sec 139(1) of the Act. Whereas, the assessee has filed Form No. 67 online on the portal of the Income tax department on 06.05.2020. The Ld. AR submitted that the assessee has filed form no. 67 after filling the appeal with the CIT(A) but these facts were not considered by the appellate authority. Whereas the CIT(A) has considered the fact of non filing of Form No.67 before the due date U/sec139(1) of the Act and is of the opinion that it is a mandatory requirement as per the I T Rules and the revenue has fallowed. 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 the income tax rules prescribes the procedure for claiming the foreign tax credit. We find Section 90 of the incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 IT A 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 Hon'ble Supreme Court in case of Engineering Analysis Centre of Excellence (P) Ltd. reported in (2021) 432 ITR 471. 8. We accordingly, hold that FTC cannot be denied to the assessee. Assessee is directed to file the relevant details/evidence in support of its claim. We thus remand this issue back to the Ld. AO to consider the claim of assessee in accordance with law, based on the verification carried out in respect of the supporting documents filed by assessee. Accordingly the grounds raised by assessee stands all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act on the ground that the issue was debatable but rather the decision was given that the relevant rule was mandatory and hence non furnishing of Form No. 67 before the due date under Section 139(1) of the Act was fatal to the claim for FTC. 16. I have given a careful consideration to the rival submissions. I agree with the contentions put forth by the learned counsel for the Assessee and hold that (i) Rue 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No. 67; (ii) filing of Form No. 67 is not mandatory but a directory requirement and (iii) DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. I am of the view that the issue was not debatable and there was only one view possible on the issue which is the view set out above. I am also of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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