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TMI Blog2022 (9) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 143(1) of the Act. The grounds taken by the assessee read as under: Ground No. 1: Non grant of Foreign Tax Credit ('FTC') of Rs. 12,03,837 On the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in confirming the action of the Ld. Assessing Officer, CPC (Ld. AO) of making the adjustment in the Intimation under Section 143(1) of the Act of not allowing Foreign Tax Credit ('FTC') of Rs. 12,03,837 allowable as per Section 90 of the Income-tax Act, 1961 ('Act') read with Article 22(3) of the India- South Africa Double Taxation Avoidance Agreement ('DTAA'), It is prayed that the Ld Assessing Officer be directed to grant the FTC of Rs. 12,03,837. Ground No. 2: Non-grant of FTC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxation Avoidance [DTAA]. Aggrieved, the assessee preferred further appeal against the same. 3. During appellate proceedings, it transpired that the assessee was employed with Shell India Markets Pvt. Ltd. [SIMPL]. The assessee went on a short-term international assignment to South Africa from 03- 10-2017 to 14-04-2018. Thus the assessee was Resident and Ordinarily Resident (ROR) and continued to be on the payroll of SIMPL. M/s SMIPL issued Form-16 for the entire period which include salary for services rendered in India as well as services rendered outside India. Since assessee was ROR in India, its global income was taxable in India. For service rendered in South-Africa, tax was paid in South Africa, the credit of which was claimed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... South Africa, on the income earned in South Africa in terms of Section 90/90A of the IT. Act and Indo- South Africa DTAA, as such income has also been included in the Global income taxed in India. CPC in the Intimation u/s 143(1) of the IT. Act did not allow the Foreign Tax Credit claimed by the appellant. Aggrieved, the appellant filed the present appeal. Hence, the only relevant issue for adjudication is claim of Foreign Tax Credit in respect of tax paid by the appellant in South Africa on the income earned in that country. 5.2. The written submission filed by the appellant was carefully considered. It is pertinent to note that in the Form 16 issued by the Indian employer of the appellant, no amount was shown payable or refundable. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of tax and give credit for prepaid taxes. 6. In effect, the appeal is Partly Allowed. The Ld. CIT(A) denied the credit on the ground that the tax was not paid by the assessee and secondly Form 67 was filed belatedly. Aggrieved, the assessee is in further appeal before us. 5. We find that the CPC has accepted the revised income of Rs.56.40 Lacs as filed by the assessee. The only dispute is with respect to FTC. The Ld. CIT(A) has noted that FTC has not been paid by the assessee but by his employer and therefore, no credit of the same could be granted to the assessee. However, we find that FTC has been offered by the assessee as perquisites in the gross total income and taxes have been paid thereon. Once this income has been offere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings u/s.154 of the Act, can be resorted to. Even otherwise the ground on which the revenue authorities rejected the Assessee's application u/s.154 of the Act was not on the ground that the issue was debatable but on merits. I therefore do not agree with the submission of the learned DR in this regard. This decision has been followed by co-ordinate bench of Bangalore Tribunal in M/s 42 Hertz Software India Pvt. Ltd. V/s ACIT (ITA No.29/Bang/2021 order dated 07.03.2022). We also concur with the same. 7. It is the finding of Ld. CIT(A) that the assessee has already filed Form No.67 although belatedly. Therefore, we direct Ld. CIT(A) to verify the form and allow tax credit to the assessee, if found in order. Ground No.1 stand allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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