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TMI Blog2024 (5) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 - ITAT BANGALORE] we direct the AO to allow the FTC after due verification In this case since the certificate was not examined by the Assessing Officer, therefore, considering the totality of the facts and circumstances of the case and in the interest of justice, we deem it proper to restore the issue to the file of Assessing Officer with the direction to verify the form No. 67 and allow consequential FTC. We hold and direct accordingly. The grounds raised by the Revenue are accordingly allowed for statistical purposes. - SHRI R.K. PANDA, VICE PRESIDENT AND MS ASTHA CHANDRA, JUDICIAL MEMBER For the Assessee : Shri Pramod Shingte For the Department : Shri Sourabh Nayak, Addl.CIT ORDER PER R. K. PANDA, VP: This appeal filed by the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. This form was filed well within the prescribed time limit. The return was processed u/s 143(1) of the Act by the CPC, Bengaluru on 22.03.2022, wherein the CPC did not allow FTC of Rs. 4,32,10,256/- and thereby raised a demand at Rs. 5,03,96,640/-. Subsequently, another form No. 67 was filed on 28.03.2022 by mentioning the correct assessment year i.e. 2021-22 by claiming the FTC at Rs. 4,32,10,256/-. However, the Assessing Officer at CPC did not allow the FTC of Rs. 4,32,10,256/-. A rectification application dated 03.11.2022 was also rejected by the CPC in the order passed u/s 154 of the Act vide order dated 15.11.2022. Since, despite number of reminders the CPC did not allow the FTC of Rs. 4,32,10,256/-, the assessee filed an appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the due date specified for furnishing the return of income under sub-section (1) of section 139 of the Act. According to the Assessing Officer, as per CBDT s Notification No. 9, dated 19.09.2017, form No. 67 shall precede the filing of return of income. Accordingly, the Assessing Officer rejected 154 application filed by the assessee. We find the Ld. CIT(A) / NFAC allowed the claim of FTC, reasons of which are already reproduced in the preceding paragraphs. We do not find any infirmity in the order of Ld. CIT(A) / NFAC directing the Assessing Officer to allow the claim of FTC on account of delay in filing of form No. 67. 9. We find the Hyderabad Bench of Tribunal in the case of Baburao Atluri vs. DCIT vide ITA Nos. 108 118/Hyd/2022, ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore 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 trite 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of M/s. 42 Hertz Software India Pvt. Ltd.(supra), we direct the AO to allow the FTC after due verification. The grounds raised by the assessee are accordingly allowed. 10. Similar view has been taken in various other decisions relied on by the Ld. Counsel for the assessee. However, since the certificate was not examined by the Assessing Officer, therefore, considering the totality of the facts and circumstances of the case and in the interest of justice, we deem it proper to restore the issue to the file of Assessing Officer with the direction to verify the form No. 67 and allow consequential FTC. We hold and direct accordingly. The grounds raised by the Revenue are accordingly allowed for statistical purposes. 11. In the resul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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