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TMI Blog2024 (8) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... n Form No. 67 was not examined by the Ld. AO, therefore, considering the totality of the facts and circumstances of the case and in the interest of justice, we deem it appropriate to restore the issue to the file of the AO with the direction to verify Form No. 67 and allow consequential FTC in accordance with law - Grounds raised by the assessee allowed for statistical purposes. - Shri Inturi Rama Rao, Accountant Member And Ms. Astha Chandra, Judicial Member For the Assessee : Shri Pratik Sandbhor For the Department : Shri Umesh Phade ORDER PER ASTHA CHANDRA, JM : The appeal filed by the assessee is directed against the order dated 21.11.2023 of the Ld. Commissioner of Income Tax (Appeals), Patna [ CIT(A) ] pertaining to Assessment Year ( AY ) 2021-22. 2. The assessee has raised the following grounds of appeal:- 1. On the facts and in the circumstances of the case and in law the CPC, Bengaluru erred in not granting the Foreign Tax Credit of Rs. 1,48,111/- claimed by the appellant in his return of income by making a disallowance in intimation u/s 143(1). 2. On the facts and in the circumstances of the case and in law the CPC, Bengaluru erred in not taking cognizance of the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement prescribed under the Rules. DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. The assessee placed reliance on the decision of the Bangalore Bench of the Tribunal in Vinodkumar Lakshmipathi reported in TS-719-ITAT-2022 (Bang) wherein it has been held that the DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act, thus, non-furnishing of Form No. 67 before the due date u/s 139(1) is not fatal to the claim for FTC. Further reliance was placed on the Mumbai Bench of the Tribunal in Sonakshi Sinha s case reported in TS-742-ITAT-2022 (Mum) wherein the Tribunal has observed that section 90 or 91 does not prescribe timeline for filing of such declaration on or before due date of filing of return of income and Rule 128(4) provides the condition where the foreign tax credit would not be allowed, which does not include non-filing of prescribed Form within the prescribed limit. 4.2 In support of its claim, the assessee also relied on the Notification No. 100/2022/F No. 370142/35/2022-TPL dated 18th August, 2022 issued by the CBDT which has substituted sub-rule (9) of Rule 128 allowing the assessee to file Form 67 till t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. The orders passed by the High Court as well as ITAT taking a contrary view are hereby set aside and it is held that the assessee shall not be entitled to the benefit under Section 1 DB (8) of the IT Act on noncompliance of the twin conditions as provided under Section 1 DB (8) of the IT Act, as observed hereinabove. The present Appeal is accordingly Allowed. Though, this is in context of different section but underlying law is well settled that a person who claims exemption or concession must establish that it is entitled to that exemption or concession. A provision providing for an exemption, concession, or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the Statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions must be complied with. 8. Similarly, Hon'ble Supreme Court in the 'case of State of Jharkhand v Ambay Cements,(2005) 1 SCC 368 had clearly laid down, 26. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the appellant is hereby dismissed. 6. Dissatisfied, the assessee is in appeal before the Tribunal and all the grounds relate thereto. 7. The Ld. AR submitted that the impugned issue is squarely covered in favour of the assessee by the decisions of various Benches of the Tribunal. He reiterated the contentions raised before the Ld. CIT(A) and cited various judicial precedents relied upon by the assessee in support of its claim on allowability of FTC before the Ld. CIT(A). 8. The Ld. DR, on the other hand, supported the order of the Ld. AO/CIT(A). 9. We have considered the submissions of the parties and perused the records. It is evident that the solitary ground of denial of the claim of the assessee for FTC is delay in filing Form 67. It is an admitted position that the assessee filed Form 67 on 08.01.2022 before the end of the relevant AY 2021-22 which is in conformity with the CBDT notification No. 100/2022 amending sub-rule (9) of Rule 128 of the Rules. The Rule nowhere provides that if Form 67 is not filed within time, relief sought by the assessee under section 90 of the Act would be denied. The assessee filed Form 67 before the return for the relevant AY was processed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis 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/evidences 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 allowed for statistical purposes. 12. We further find, in the instant case, the delay in filing of the FTC certificate in Form-67 was explained to be due to non receipt of the tax deduction certificate from the foreign deductor from Zambia within time for which the said Form-67 was filed belatedly by 14 days. It was stated that the tax jurisdiction of the Zambian deductor follow different period for taxing the income and have different due dates for filing the return as compared to India. So far as the decision relied on by ld. DR in the case of Muralikrishna Vaddi(supra) is concerned, we find there is a delay of more than two years without any valid and reasonable cause. Therefore, the said decision in our opinion cannot b ..... 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