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TMI Blog2025 (1) TMI 1485X X X X Extracts X X X X X X X X Extracts X X X X ..... nt FTC as may be entitled to the assessee in accordance with law.
Therefore, we here by direct the AO to allow benefit of Foreign Tax Credit subject to such enquiries and verifications as may be considered expedient. Appeal of the assessee is allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer in not allowing the credit of Foreign Tax Credit in terms of provisions of Article 23 of the Indo Japan DTAA is arbitrary and unjustified. 2.2 That in fact, the claim of FTC being governed by provisions of DTAA which overrides the Income Tax Act, 1961 as well as the Rules, the A.O. has failed to appreciate that the filling of Form No. 67 is only a directory requirement and as such the disallowance of FTC is illegal and not sustainable under law. 3 That the orders passed by the lower authorities are not justified on facts and same are bad in law. 4 That the appellant craves leave to add, amend, alter or forgo any or all of the grounds as may be necessary and in the interest of justice." 3. The brief facts of the case are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng state i.e. Japan is in accordance with the provisions of section 90 of the Act read with Article 23 of the Double Tax Avoidance Agreement. Form no 67 has been filed by the assessee company. He has further submitted that the filing of the Form No.67 is a directory requirement and the claim cannot be denied that the form was not filed within time. Reliance has placed on the following judgements as under: i- Sumedha Arora vs ITO [2023] 154 taxmann.com 535 ii- Sonia Sharma vs ITO in ITA No. 316/Del/ 2023 dated 27-04-2023 iii- Manoj Kumar Srivastava vs ACIT [2024] 163 taxmann.com 296 {Delhi-Trib}. 6. Rule 128(9) of the Income Tax Rules 1962 provides that Form No 67 should be filed on or before the due date of filing the return of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth in India and Italy, shall be allowed as credit against the Indian tax payable in respect of such income. The assessee thus contends that a combined reading of Section 90 of the Act read with Article 24(3)(0) of DTAA provides in no uncertain terms that Italian tax paid shall be allowed as credit against Indian Tax. Neither Section 90 nor DTAA provides that FTC shall be disallowed for mere non compliance with any procedural requirement of enabling nature. The assessee thus contended that FTC is assessee's vested right as per Article 24(3)(a) of the DTAA r.w. section 90 of the Act and such FTC approved to the assessee cannot be denied on the grounds of non compliance of procedural requirements prescribed in the Rules which are subservi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition that DTAA overrides the provisions of the Act and Rule cannot be contrary to the Act, the assessee is fully entitled to the FTC. The Tribunal also observed that issue of allowability of FTC is not a debatable issue and only one view is possible and thus seeking rectification under Section 154 could be resorted by the assessee. Similar view has been taken in 42 Hertz Software India (P.) Ltd. v. Asstt. CIT [2022] 139 taxmann.com 448 (Bang. Trib.)/[ITA No.29/Bang/2021 order dated 7th March, 2022). A reference is made to another Co-ordinate Bench decision in the case of Vinodkumar Lakshmipathi v. CIT (Appeals) NFAC [2022] 145 taxmann.com 235 (Bang. Trib.), [ITA No.680/Bang/2022 order dated 06.09.2022]; Sonakshi Sinha v. CIT (Appeals) [202 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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