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TMI Blog2024 (10) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y 2020-21 i.e. on 24.12.2021 and the date of filing of Form 67 i.e. 1/4/2021. Since the appellant has filed Form 67 on or before the AO passed the assessment order, in our considered view, the AO ought to have given credit for taxes paid outside India when the global income of the appellant has been taxed in India. We direct the AO to verify Form 67 filed by the assessee to claim credit for Foreign Tax Credit and allow the credit for taxes paid outside India. A similar issue has been considered in the case of Shri Nagababu Kuchibhotla [ 2024 (2) TMI 1443 - ITAT HYDERABAD] where under identical set of facts the Tribunal directed the Assessing Officer to allow credit for Foreign Taxes paid outside India. We direct the AO to verify Form 67 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 on 31.3.2021 and declared total income of Rs. 95,92,944/- which includes salary received from outside India for employment with Mastech Digital Technologies Inc, USA and also claimed foreign tax credit of Rs. 11,28,012/- as per section 90 of the I.T. Act, 1961 and Article 25(2)(a) of the Indio-USA Double Taxation Avoidance Agreement (DTAA). The return of income filed by the assessee was processed u/s 143(1) and intimation was issued, where the Assessing Officer CPC denied foreign tax credit for belated filing of the Form 67 in terms of Rule 128(9) of the I.T. Rules, 1962. The appellant has filed a petition u/s 154 of the Act, along with Form No.67 and acknowledgement for filing the said form on 1/4/2021, but the rectification petition fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly denied the Foreign Tax Credit and thus, the order of the learned JCIT/Addl.CIT(A) should be upheld. 7. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below. There is no dispute with regard to the fact that the appellant has not filed Form 67 on or before the due date for filing of the return of income u/s 139(1) of the Act, in terms of section 90 of the I.T. Act, 1961 and Rule 128(9) of the I.T. Rules, 1962. However, such form 67 has been filed on or before the Assessing Officer passed the order u/s 143(1) of the Act which is evident from the date of intimation issued by the Assessing Officer u/s 143(1) of the Act for the A.Y 2020-21 i.e. on 24.12.2021 and the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited before us by both sides. We find the AO in the instant case rejected the 154 rectification application on the ground that Form No.67 was not furnished before the due date as provided u/s 139(1) in compliance to Rule 128(9). We find the learned CIT (A) NFAC upheld the action of the Assessing Officer in denying the relief for foreign tax credit, the reasons of which have already been reproduced in the preceding paragraph. We find an identical issue had come up before the Coordinate Bench of the Tribunal in the case of Shri Baburao Atluri (Supra) wherein the Tribunal, after considering various decisions, has allowed the foreign tax credit, although there was delay in filing of such Form 67 beyond the due date of filing of the return. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 directed to file the relevant d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. 9. Since the facts of the instant case are identical to the facts of the present case, therefore, respectfully following the decision of the Coordinate Bench of the Tribunal, we direct the Assessing Officer to allow the foreign tax credit of Rs. 58,69,594/- after due verification. Grounds raised by the assessee are accordingly allowed. 13. Respectfully following the decision of the Coordinate Bench of the Tribunal in the case of Govind Rajulu Dhondu (Supra) we restore the issue to the file of the Assessing Officer with similar direction to allow the FTC of Rs. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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