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2023 (11) TMI 1189 - AT - Income TaxForeign tax credits u/s 90/90A - claim rejected as not claimed in the original return of income - assessee has filed Form 67 for claiming relief - Assessee argued even the filling the revised ITR time was not available to the assessee when the assessee got the information for the foreign tax credit to be claimed on the same income offered in the Indian tax return, so moved the rectification application which was rejected even though the assessee filed the form no.67 to claim the credit on the ground that the claim is not in the ITR filed - HELD THAT:- Considering the claim of the assessee a fresh is decided in the judgment of the co-ordinate bench in the case M/s. Rajasthan State Seeds and Organic Production certificate Agency [2016 (3) TMI 1469 - ITAT JAIPUR] CIT(A) being an appellate authority ought to have considered the assessee's claim which was purely legal in nature and the reservation as contemplated by in the Goetze India Ltd. vs. CIT [2006 (3) TMI 75 - SUPREME COURT] is applicable to AO and not to the appellate authority. We are of the view that assessee's claim should have been considered and appropriate relief in accordance with law may be provided. In view thereof, we set aside the matter to the file of the Id. AO to consider the assessee's claim afresh by providing adequate opportunity of being heard. Also decided in Juan Miguel Guerrero Ferrer [2023 (9) TMI 1401 - ITAT JAIPUR] as held neither section 90 nor DTAA provides that FTC shall be disallowed for non compliance with any procedural requirements. Since FTC is assessee’s vested right as per Article 22(2) of the DTAA read with section 90 and thus same cannot be disallowed for non compliance of procedural requirement that is prescribed in the Rules. Rule 128 is a procedural provision and not a mandatory provision - it provides that Form 67 should be filed on or before the due date of filing the return of income as prescribed u/s 139(1) - said Rule nowhere provides that if the said Form 67 is not filed within the above stated time frame, the relief as sought by the assessee under section 90 of the Act would be denied. In case the intention of the Act or Rule was to deny the FTC, then in that eventuality either the Act or the Rules would have specifically provided that the FTC would be disallowed if the assessee does not file Form 67 within the due date prescribed u/s 139(1) - Thus filing of Form 67, in our view, is a procedural/directory requirement and is not a mandatory requirement. Decided in favour of assessee.
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