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TMI Blog2024 (6) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... IDENT SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER For the Appellant : Smt. Sheetal, Advocate For the Respodent : Shri Ganesh R Gale, Standing Counsel for Department ORDER PER SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER 1. This is an appeal filed by the assessee against the order passed by the Addl.CIT(A)-11, Mumbai dated 14/12/2023 in DIN No. ITBA/APL/S/250/2023- 24/1058769726(1) for the assessment year 2021-22. 2. The sole issue raised in this appeal is for denying the foreign tax credit (FTC) as claimed by the assessee for delay in filing Form No.67 of Rs. 5,93,444/- which was filed on 22/10/2022, after the due date of filing the return of income. The return of income was filed on 26/12/2021 and the extended due date for filing return was on 31/12/2021. While processing the return u/s 143(1)(a) of the Act on 05/07/2022, the foreign tax credit (FTC) was denied by the CPC, Bangalore. The assessee shown salary income of Rs. 16,52,452/- and income from other sources is Rs. 22,20,101/- resultantly the gross total income is Rs. 38,72,553/- and deduction was claimed in Chapter VIA of Rs. 2,67,364/- resultantly the taxable income was determined at Rs. 36,05,190/- and no other credit u/s 90/9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat assessee has offered the foreign income of Rs. 2,01,024/- and also paid tax on it at Rs. 63,342/- and levying of additional tax of Rs. 28,431/- is amounting to double taxation. In our opinion, the plea of the assessee is justified. The assessee has filed the copy of Form No.67 before Ld. CIT(A). He ought to have given direction to give credit for foreign tax which has been paid as per Form 67. 5. Further, we note that on identical issue, This Tribunal in the case of Brinda Rama Krishna (in ITA No. 454/Bang/2021 for AY.2018-19), order dated 17.11.2021 held that (i) Rule 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. Therefore, non-furnishing of Form No.67 before the due date u/s 139(1) of the Act is not fatal to the claim for FTC. The findings of this Tribunal are reproduced below: 2. The Assessee is an individual and during the previous year relevant to AY 2018-19 an ordinary resident in India. The Assessee worked with Ernst Young Australia from 20.11.2017 till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of income under subsection (1) of section 139, in the manner specified for furnishing such return of income. 4. The Assessee claimed FTC of Rs. 4,73,779/- u/s. 90 of the Act read with Article 24 of India Australia tax treaty ( DTAA ) in a revised return of income filed on 31.8.2018. The Assessee had not filed the Form 67 before filing the return of income. On realising the same, the Assessee filed Form 67 in support of claim of foreign tax credit on 18.04.2020. The revised return of income was processed by Centralized Processing Centre (CPC) electronically and intimation u/s 143(1) of the Act on 28.05.2020 was passed disallowing the claim of FTC. 5. The Assessee filed a rectification application before the AO on 15.06.2020 25.02.2021 and submitted that credit for FTC as claimed in the return should be given. In the rectification order dated 10.03.2021, the AO upheld the action on the ground that the Assessee has failed to furnish Form 67 on or before the due date of furnishing the return of income as prescribed u/s 139(1) of the Act which is mandatory according to Rule 128(9) of the Rules. 6. On appeal by the Assessee, the CIT(A) vide Order dated 03.09.2021 confirmed the Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, such rules may provide for all or any of the following matters: (ha) the procedure for granting of relief or deduction, as the case may be, of any income-tax paid in any country or specified territory outside India, under section 90 or section 90A or section 91, against the income-tax payable under this Act; 9. It was submitted that the Board has power to prescribe procedure to granting FTC. However, the Board does not have power to prescribe a condition or provide for disallowance of FTC. The procedure prescribed in Rule 128 should therefore be interpreted in this context. Rule 128 is therefore a procedural provision and not a mandatory provision. 10. It was further submitted that Rule 128(9) provides that Form 67 should be filed on or before the due date of filing the return of income as prescribed u/s 139(1) of the Act. However, the Rule nowhere provides that if the said Form 67 is not filed within the above stated time frame, the relief as sought by the assessee u/s 90 of the Act would be denied. The learned counsel for the Assessee submitted that in case the intention was to deny the FTC, either the Act or the Rules would have specifically provided that the FTC would be dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India) (P.) Ltd [2009] 178 Taxman 143 (Delhi) PCIT, Kanpur vs Surya Merchants Ltd [2016] 72 taxmann.com 16 (Allahabad) CIT, Central Circle vs American Data Solutions India (P.) Ltd [2014] 45 taxmann.com 379 (Karnataka) CIT-II vs Mantec Consultants (P.) Ltd [2009] 178 Taxman 429 (Delhi) CIT vs ACE Multitaxes Systems (P.) Ltd [2009] 317 ITR 207 (Karnataka). 13. It was submitted that as per the provisions of section 90(2) of the Act, where the Central Government of India has entered into a DTAA, the provisions of the Act would apply to the extent they are more beneficial to a taxpayer. Therefore, the provisions of DTAA override the provisions of the Act, to the extent they are beneficial to the assessee. Reliance in this regard is placed on the following cases and circulars: Union of India v. Azadi Bachao Andolan [2003] 263 ITR 706 (SC) CIT v Eli Lily Co (India) P Ltd (2009) 178 Taxman 505 (SC) GE India Technology Centre P Ltd v CIT (2010) 193 Taxman 234 (SC) Engineering Analysis Centre of Excellence P Ltd v CIT (2021) 125 taxmann.com 42 (SC) (Pg 106-109 of PB 2- Para 25 26) CBDT Circular No 333 dated 2/4/82 137 ITR (St.) It was submitted that when there is no condition prescribed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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