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TMI Blog2023 (4) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... scribe timeline for filing of such declaration on or before due date of filing of ROI. Assessee is eligible for foreign tax credit, as she has filed form number 67 before completion of the assessment, though not in accordance with rule 128 (9) of The Income Tax Rules, which provided that such form shall be filed on or before the due date of filing of the return of income. Decided in favour of assessee. - Shri S. Rifaur Rahman, Hon'ble Accountant Member For the Assessee: Shri Ketan Ved. For the Department: Shri S.N. Kabra. ORDER PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against order of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short Ld. CIT(A) ] dated 20.05.2022 for the A.Y. 2019-20. 2. At the outset, we observe that the present appeal is filed by the assessee with a delay of 190 days and assessee also filed an affidavit in this regard and prayed for condonation of delay. In the affidavit assessee has submitted as under:- I, Mr. Ganesh Anandrao Ingulkar, having Permanent Account Number ['PAN'] AAPPI6881C residing at B/502, Shivram Park, Opp. Ashok Kedare Chowk, Tembipada Road, Bhandup W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider whether the Counsel s failure is sufficient cause for condoning the delay. The Madras High Court considered an identical issue in the case of Sreenivas Charitable Trust v. Dy. CIT (280 ITR 357) and held that mixing up of papers with other papers are sufficient cause for not filing the appeal in time. The Madras High Court further observed that the expression sufficient cause should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor while considering the reasons for condoning the delay. 6.1 On merit the issue is in favour of the assessee. But there is a technical defect in the appeal since the appeal was not filed within the period of limitation. The assessee filed an affidavit saying that the appeal was not filed because of the Counsel s inability to file the appeal. The Revenue has not filed any counter affidavit to deny the allegation made by the assessee. While considering a similar issue the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex Court are reproduced hereunder: (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 2819 days has to be condoned. 6.3 The next question may arise whether 2819 days was excessive or inordinate. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In fact, the Madras High Court in the case of CIT v. K.S.P. Shanmugavel Nadai and Ors. (153 ITR 596) considered the delay of condonation and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Madras High Court cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. In this case, the Revenue has not filed any counter-affidavit opposing the application of the assessee, therefore, as held by the Apex Court, there is sufficient cause for condonation of delay. The Supreme Court observed that when the delay was of short duration, a liberal view should be taken. It does not mean that when the delay was for longer period, the delay should not be condoned even though there was sufficient cause. The Apex Court did not say that longer period of delay should not be condoned. Condonation of delay is the discretion of the Court/Tribunal. Therefore, it would depend upon the facts of each case. In our opinion, when there is sufficient cause for not filing the appeal within the period of limitation, the delay has to be condoned irrespective of the duration/period. In this case, the non-filing of an affidavit by the Revenue for opposing the condonation of delay itself is sufficient for condoning the delay of 2819 days 6.6 In case the delay was not condoned, it would amount to legalise an illegal and unconstitutional order. The power given to the Tribunal is not to legalise an injustice on technical ground but to do substantial justice by removing the injust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 3 raised by the appellant are hereby dismissed. 7. Aggrieved assessee preferred appeal before us raising following grounds in its appeal:- 1. Re.: Relief u/s 90 of the Act denied: 1.1 The learned CIT(A) erred in confirming the order of CPC, Bengaluru by denying the relief claimed under section 90 of the Act of INR 1,06,635. 1.2 The learned CIT(A) has erred in not considering the amount of relief claimed as per revised return of income e-filed on 16 June 2020. 1.3 The learned CIT(A) erred in denying the relief on the ground that the Appellant has not filed Form-67 within the due date of filing of return of income prescribed under section 139(1) of the Act without appreciating the fact that the same was furnished alongwith the revised return of income wherein the foreign tax credit was claimed as prescribed under Rule 128 of the Act. 1.4 The learned CIT(A) erred in not appreciating that the Appellant had filed original return of income under section 139(1) of the Act well within the due date and the revised return under section 139(5) of the Act within the due date as applicable for the captioned year. 1.5 The learned CIT(A) erred in not appreciating the fact that the Appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Sonakshi Sinha v. CIT (supra) and decided the issue in favour of the assessee, with the following observations:- 012. We have carefully considered the rival contention and perused the orders of the lower authorities. Short question in this appeal is whether assessee is entitled to foreign tax credit even when form number 67 required to be filed according to the provisions of rule 128 (9) of the Income Tax Rules on or before the due date of filing of the return of income, not complied by the assessee, but same was filed before the completion of the assessment proceedings. Precisely, the fact shows that assessee filed return of income u/s 139 (1) of the income tax act. In such a return of income, she claimed the foreign tax credit. However, form number 67 was filed during the course of assessment proceedings and not before the due date of filing return. Rule 128 (9) of the Income Tax Rules 1962 provides that the statement in Form No. 67 referred to in clause (i) of sub-rule (8) and the certificate or the statement referred to in clause (ii) of sub-rule (8) shall be furnished on or before the due date specified for furnishing the return of income under sub-section (1) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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