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TMI Blog2024 (11) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules cannot be contrary to the Act. The issue was not debatable and there was only one view possible on the issue which is the view set out above. The issue in the proceedings u/s. 154 of the Act, even if it involves long drawn process of reasoning, the answer to the question can be only one and in such circumstances, proceedings u/s. 154 of the Act, can be resorted to. Even otherwise the ground on which the revenue authorities rejected the Assessee's application u/s. 154 of the Act was not on the ground that the issue was debatable but on merits - We direct the AO to give credit for foreign tax as per Form 67 dated 05.04.2021 filed by the assessee prior to the filing of the appeal before the CIT(A) after due verification. - Shri Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year the assessee was a resident in India as per the provisions of Article 4 of DTAA between India USA. Accordingly the assessee was liable to be taxed on his worldwide income in India i.e., income earned in India as well as income from outside India. The assessee earned income from outside Inia from 18.2.2015 to 08.10.2016 and paid taxes thereon as well as paid taxes in India. During the relevant year, the assessee filed return of income u/s. 139(4) on 22.12.2017 declaring total income of Rs. 63,11,720 and tax liability was Rs. 12,51,990 after claiming Foreign Tax Credit (FTC) of Rs. 7,05,587 on income earned from USA and TDS was deducted from salary by the employer, i.e., Microsoft Global Services Pvt. Ltd. and income from SBI. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of lower authorities and submitted that assessee should have filed Form 67 for claiming FTC within the due date which was filed on 18.08.2023 which is beyond due date. As per Rule 128(9) assessee was required to file return u/s. 139(1) and the ld. DR relied on the order in the case of Ms. Brinda RamaKrishna [2022] 135 taxamann.com 358 (Bang. Trib). 6. Considering the rival submissions we note that the assessee filed the return belatedly and Form 67 was filed on 18.8.2023 claiming FTC of Rs. 7,05,585. However, the CPC has not granted FTC and the ld. FAA has also confirmed the same. Similar issue has been decided by coordinate Bench of the Tribunal in ITA No.34/Bang/2024 dated 7.3.2024 and it is held as under:- 7. We have heard the rival s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y paid taxes in UK and as per Article 24(2) of the DTAA between India and UK the foreign income cannot be taxed twice. The decision of Bangalore Tribunal in case of Vinodkumar Lakshmipathi vs. CIT is dealing on the identical situation and the Tribunal has taken cognizance of the same in light of the decision of Hon ble Supreme Court in case of Mangalore Chemicals Fertilizers Ltd. vs. DCIT (1992 Supp (1) SCC 21) wherein it was observed as under: The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axman 429 (Delhi) CIT v. 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 Excell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth by the learned counsel for the Assessee and hold 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. I am of the view that the issue was not debatable and there was only one view possible on the issue which is the view set out above. I am also of the view that the issue in the proceedings u/s. 154 of the Act, even if it involves long drawn process of reasoning, the answer to the question can be only one and in such circumstances, proceedings u/s. 154 of the Act, can be resorted to. Even otherwise the ground on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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