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TMI Blog2024 (6) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2022. thereafter, the assessee / appellant filed application for rectification of the above assessment order u/s 154 of the Act on 23.01.2023 but the relief u/s 90 of the Act was again declined by CPC. Aggrieved by the above order, preferred an appeal before the Ld. CIT(A), but said appeal of the assessee was dismissed. Relevant operative para of impugned order as below: "In view of the aforementioned detail, the Appellant was required to file return of income as well as form 67 before due date specified for furnishing the return of income under sub-section (1) of section 139. The Appellant submitted Form 67 as referred in Rule 128 was only on 25.01.2022 which is after the due date specified for furnishing the return of Income under sub-section (1) of 139. Therefore, the Appellant is not eligible for relief u/s. 90 of the I.T. Act, 1961. In view of these facts and the provisions of I.T Act and Rule 128 of the I.T Rules 2016 and notification No.9 dated 19.09.2017 of CBDT, I don't find any irregularities in the order of 154 of the I.T. Act, 1961 passed by the AO. Further, the Appellant could not submit any contrary view of evidence against the order of 154 of IT Act. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by the Hon'ble Apex Court in G.M.Knitting Industries (P) Ltd. (supra), which was referred above, would be squarely applicable to the present case. In the present case, the returns were filed without FTC, however the same was filed before passing of the final assessment order. 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 impugned order is liable to be set aside." * Gaurave Singh vs. ITO (2024) 158 taxmann.com 350 (Jabalpur) "9. We considering the facts, circumstances provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve." Further reliance was placed on the decision of the Hon'ble Supreme Court, in the case of Sambhaji v. Gangabai [2008] 17 SCC 117, wherein it has been held that procedure cannot be a tyrant but only a servant. It is not an obstruction in the implementation of the provisions of the Act, but an aid. The procedures are handmaid and not the mistress. It is a lubricant and not a resistance. A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. It was submitted that filing of Form 67 as per the provisions of section 90 read with rule 128(9) is a procedural law and should not control the claim of FTC." * Ashish Agarwal vs. ITO, (2023) 203 ITD 562 (Hyd). "11. As far as the issue of FTC is concerned, learned AR placed reliance on the decision, the Bench of Ms. Brinda Rama Krishna Rama Krishna (supra) the Bench the considered the issue in the light of the provisions of DTAA, section 295(1) of Ltd. v. D. decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected the Assessee's application u/s. 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 DR in this regard." * Vikas Daga vs. ACIT, in ITA No. 2536 of 2022, DATED 14.06.2023 (DELHI) "8. We have given a thoughtful consideration to the orders of the authorities below. The undisputed fact is that the assessee holds a foreign tax credit certificate for Rs. 1887114/-. In our considered opinion filing of form 67 is a procedural / directory requirement and is not a mandatory requirement. Therefore, violation of procedural norms does not extinguish the substantive right of claiming the credit of FTC. We accordingly direct the AO to allow the credit of FTC and hold that rule 128(9) of the Rules does not provide for disallowance FTC in case of delay filing of form 67 is not mandatory but a directory requirement and DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. * Ganesh Anandrao Ingulkar vs. Assistant Director of Income-Tax in ITA NO. 302/MUM/2023 "10. Considered the rival submissions and material placed on record, we observe that assessee has filed For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purely directory. Admittedly, Rule 128 does not prescribe denial of credit of FTC Further the Act i.e. section 90 or 91 also do not prescribe timeline for filing of such declaration on or before due date of filing of ROI. Further rule 128 (4) clearly provides the condition where the foreign tax credit would not be allowed. Rule 128 (9) does not say that if prescribed form would not be filed on or before the due date of filing of the return no such credit would be allowed. Further by the amendment to the rule with effect from 1 April 2022, the assessee can file such form number 67 on or before the end of the assessment year. Therefore, legislature in its own wisdom has extended such date which is beyond the due date of filing of the return of income. Further, the fact in the present case is quite distinct then the issue involved in the decision of the honourable Supreme Court in case of Wipro Ltd (supra). Here it is not the case of violation of any of the provisions of the act but of the rule, which does not provide for any consequence, if not complied with. Therefore, respectfully following the decisions of the coordinate bench on this issue, we hold the assessee is eligible for f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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