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2023 (6) TMI 352 - AT - Income TaxDenial of claim of Foreign Tax Credit (FTC) - assessee has not filed the return of income within the time prescribed u/s 139(1) - procedural provision v/s mandatory provision - HELD THAT:- There is a delay of 10 days in filing the return of income - In the case of Sanjiv Gopal Vs. ACIT [2022 (10) TMI 1033 - ITAT BANGALORE] was considering a case where both return and Form No.67 was filed belatedly decided the issue in favour of the assessee and held that Rule 128 is only a procedural provision and not a mandatory provision and cannot override the provisions of the Act or the DTAA. Delay in filing the return and Form No.67 (i.e., beyond period under section 139(1) of the Act) is not fatal to the claim of FTC, we hold that CIT(A) is not justified in not granting the benefit of FTC on this count. FTC is available only in respect of income taxable in India and received outside India for the amount of taxes paid outside India. This aspect of the matter needs to be examined by the AO. It is not clear from the records whether the entire part of the salary income has been earned in India or outside India. To the extent of salary earned outside India which assessee had offered to tax in India, the assessee would be entitled to the claim of FTC on the same. Therefore, we restore the matter to the file of the AO for denovo consideration - Appeal filed by the assessee is allowed for statistical purposes.
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