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TMI Blog2024 (3) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... . PANDA, VICE PRESIDENT AND SHRI LALIET KUMAR, JUDICIAL MEMBER For the Assessee: Shri P. Murali Mohan Rao, C.A. For the Revenue: Ms. Sheetal Sarin, Sr. AR. ORDER PER LALIET KUMAR, J.M. This appeal is filed by the assessee, feeling aggrieved by the order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi invoking proceedings under section 154 of the Income Tax Act, 1961 (in short, the Act ) for the A.Y 2020-21 on the following grounds : 2. The grounds raised by the assessee reads as under : 1. The Ld. CIT(A) erred in considering the fact that the Rectification order passed u/s 154 of the Income Tax Act, 1961, dated 03.06.2022 passed by the Ld. CPC, Bangalore is erroneous both on facts and in law to the extent the order is prejudicial to the interest of the appellant. 2. The Ld. CIT(A) erred in considering the fact that the Ld. CPC, Bangalore ought to have appreciated the fact that the foreign tax credit as claimed by the assessee company was not considered in computation but the same was considered in Annexure TR (As computed) in the Rectification order u/s 154 which clearly states that there is an error while passing the rectification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owable to the assessee. 11. The Ld. CIT(A) ought to have referred to the latest decision of the Hon'ble jurisdictional tribunal in the case of Baburao Atluri, where in the Hon'ble bench had clearly held that requirement of filing Form No. 67 is only directory and not mandatory 3. Facts of the case, in brief, are that assessee is a company engaged in the business of Information Technology and Information Technology enabled services. Assessee company has filed its original return u/s 139(1) for the A.Y 2020-21 on 02.02.2021 by declaring total income Rs. 10,51,37,110/- and a refund of Rs. 4,65,570/- Thereafter on 26.03.2021, the assessee has filed the revised return u/s 139(5) of the Act by declaring total income of Rs. 10,51,37,110/- and claimed a refund of Rs. 69,04,760/-. Later, the assessee has filed return in response to intimation order passed in respect of return filed on 26.03.2021 and has rectified the inconsistency in expenditure claimed u/s 37(1) in the return and filed rectified Return of Income U/s 154 on 25.04.2022 by admitting total income of Rs. 10,51,37,110/- and claimed a refund of Rs. 69,04,760/-. The rectified return filed on 25.04.2022 was processed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x return Filed for AY 2020-21. However, Ld. CPC, Bangalore in the order u/s 154 of the Act dated 03.06.2022 has disallowed the relief claimed U/s 90 of the Act amounting to Rs. 64,39,196/- as per serial no. 33 of the order. The Ld. CIT(A) also upheld the action of the AO-CPC on the ground that Form No. 67 has not been filed within the due dates mentioned u/s 139 of the Act. 2.3. It is to mention that the Present Appeal is against the order u/s 250 of the Act dated 15.09.2023 and the issue in the consideration is wrongful disallowance of claim of Foreign Tax Credit u/s 90 of the Act amounting to Rs. 64,39,196/-. 2.4. In this regard it is to submit that the Ld. CIT ought to have considered the fact that claim made U/s 90 of the Act can never be denied when the Assessee has duly offered the Export turnover in its return of Income and thereby the Assessee is eligible to claim foreign tax Credit of Rs. 64,39,196/- . Moreover, the assessee has discharged the procedural requirement laid down in the Act of filing Form 67 as per the Rule 128 of the Income Tax Rules, 1963. (Copy of Form 67 is enclosed in paper book vide page No.109- 110). 2.5. Further, it is also to mention that as per rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the assessee for the technicality of not filing the Form No. 67 within the due date of return u/s 139(1) of the Act. 3.2. The assessee is relying on the following case law delivered by the Kolkata Bench of the Tribunal in the case of Mahua Bagchi vs ACIT, Circle61, Kolkata wherein it is stated that: After hearing rival contentions and perusing the material on record, we find that the assessee served abroad and some foreign tax to the tune of Rs. 1772,470/-was deducted in United Kingdom under DTAA between India and UK and provision of Section 90(2) of the Act. We also note that Rule 128 subRule 9 provides that Form-67 should be filed on or before the due date of filing the return of income. However, we note that nowhere it is stated that in case of delayed filing of Form-67 by way of foreign tax credit which is deducted from the assessee in foreign country Le U.K. would be denied. Accordingly, we are of the considered view that the assessee is entitled to get this foreign tax credit of Rs. 17,72,470/- u/s 90 of the Act. We also note that the claim in respect of foreign tax was allowed in the order passed u/s 143(1) of the dated 28.03.2019 and was withdrawn by the AO by passing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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