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2023 (1) TMI 1070 - ITAT MUMBAINon-grant of Foreign tax Credit - delay in filing of Form No. 67 - assessee is an individual who is a Resident and Ordinary Resident (ROR) of India - HELD THAT:- As per Rule 128 of the I. T. Rules it is evident that the assessee has to file Form 67 on or before the due date of furnishing the return of income as per section 139(1) of the Act, which the statement specifies as mandatory and not directory as per the word ‘shall’ used in the said provisions. It is evident that the assessee has filed Form 67 belatedly after the due date for filing of return u/s. 139(1) and, hence, the lower authority have rejected the claim of the assessee. We are inclined to peruse the decisions of the tribunal cited by the assessee in the case of Ms. Brinda Ramakrishna [2022 (2) TMI 752 - ITAT BANGALORE]. On similar facts, the co-ordinate bench has considered the delay in filing of Form No. 67 as only a procedural defects and has also considered the decision of Mangalore Chemicals & Fertilizers Ltd. [1991 (8) TMI 83 - SUPREME COURT] and Sambhaji and Others vs. Gangabai and others [2008 (11) TMI 393 - SUPREME COURT] which laid down the proposition that procedural law should not be construed as mandatory and should only aid the claim of substantive right. The said decision of the tribunal has also relied on various decisions, which held that provisions of DTAA override the provisions of the Act, as far as it is beneficial to the assessee. The Tribunal has held that delay in filing Form No. 67 should not by, in anyway, deny the claim of FTC enumerated in the DTAA and the intention of the legislation in the said case has to be construed in a manner which benefits the assessee. The A.O. is hereby directed to allow the FTC claim of the assessee and to grant refund in accordance with the law. Appeal of the assessee is allowed.
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