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TMI Blog2024 (2) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be contrary to the Act and hence, this right to claim of FTC is a vested right of the appellant, cannot be denied. We find sufficient case has been made out by the appellant. Hence, respectfully relying upon the same, we allow the appeal on this aspect of filing of Form No. 67. We condone the delay, if any. We, thus, direct the Ld. CIT(A) to pass orders on merit strictly in accordance with law. - SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND Ms. MADHUMITA ROY, JUDICIAL MEMBER For the Appellant: Shri Balaji V., AR For the Respondent: Shri Sushil Kumar Katiar, Sr. DR ORDER PER Ms. MADHUMITA ROY - JM: The instant appeal filed at the instance of the appellant is directed against the order dated 26.10.2023 passed by the Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had not filed Form No.67 read with Rule 28 of the IT Rules i.e. the statement of income from a country or specified territory outside India and FTC within the time limit prescribed under Section 139(1) of the Act. 4. The case of the appellant before the First Appellate Authority and before us as well is this that he had verified and submitted Form No. 67 on the Income Tax Portal on 11th March, 2019 as against due date of 31st July, 2018 when the return of income was submitted under Section 139(5) of the Act. Further that, the claim of FTC categorically disallowed for filing of Form No.67 after the due date of filing of return of income under Section 139(1) of the Act as the crux of the case made out by the appellant. However, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact, we find that the appellant has a vested right to claim FTC under such treaty which ought not to have been disallowed by the authorities below merely on the ground of delay in filing Form No.67. Delay in filing Form No.67 is a procedural delay, is not a mandatory one but a directory requirement. Moreso, double taxation avoidance agreement overrides the provision of the Act and the Rules cannot contrary to the Act. On this aspect, we have further considered the judgment relied upon by the Ld. AR in the case of Keval Niraj Hutheesing vs. ITO (Supra). While dealing with the identical issue, the Hon ble Court was pleased to pass orders relying upon the judgment passed by the Bangalore Bench in case of Vinodkumar Lakshmipathi vs. CIT, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective of the purposes they were intended to serve. The Tribunal further held that: Further reliance was placed on the decision of the Hon'ble Supreme Court, in the case of Sambhaji and Others v. Gangabai and Others, reported in [2008] 17 SCC 117, wherein it has been held that procedure cannot be a tyrant but only a servant. It is not an obstruction in the implementation of the provisions of the Act, but an aid. The procedures are handmaid and not the mistress. It is a lubricant and not a resistance. A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. It was submitted that filing of Form 67 as per the provisions of section 90 read with rule 128(9) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxmann.com 42 (SC) (Pgs. 106-109 of PB 2-Paras 25 26) CBDT Circular No. 333 dated 2/4/82 137 ITR (St.) It was submitted that when there is no condition prescribed in DTAA that the FTC can be disallowed for non-compliance of any procedural provision. As the provisions of DTAA override the provisions of the Act, the Assessee has vested right to claim the FTC under the tax treaty, the same cannot be disallowed for mere delay in compliance of a procedural provision. 14. The learned DR reiterated the stand of the revenue that rule 128(9) of the Rules, is mandatory and hence the revenue authorities were justified in refusing to give FTC. He also submitted that the issue was debatable and cannot be subject matter of decision in sec.154 proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the Assessee's application u/s. 154 of the Act was not on the ground that the issue was debatable but on merits. I therefore do not agree with the submission of the learned DR in this regard. 17. In the result, the appeal is allowed.' 8. Thus, the facts are identical in the present case as well and therefore, we direct the Assessing Officer 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. 9. In result, appeal of the assessee is partly allowed for statistical purpose. 7. We find that it has been held by the Hon ble Apex Court on identical issue that the Rule 128(9) of the IT Rules does not provide for disallowance o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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