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TMI Blog2022 (10) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in law, Commissioner of Income tax (Appeals), National faceless appeal Centre (NFAC) has erred by not considering the explanation , documents and disclosures made with regard to the claim of relief u/s 90 of the income tax act 1961 ii. the CIT (A), National faceless appeal Centre has erred in passing an order and disallowing the claim of relief of foreign tax credit u/s 90 of the income tax act, 1961 amounting to Rs. 2,921,327/- on the same income of Rs. 14,610,080/- offered in the same year, which has been doubly taxed in the United Kingdom and in India. iii. On the facts and circumstances of the case, the CIT (A), NFAC has not disputed the allowability of the foreign tax credit. He has only disallowed the credit on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05. The learned AO found that assessee has claimed foreign tax credit amounting to Rs. 2,921,327/- however from the filing portal it was noted that assessee has uploaded form number 67 for claiming foreign tax credit on 20/1/2020. Fact that assessee has filed her return of income on 22/09/2018, within the due date as per provisions of Section 139 (1) of the act. Thus, the issue is that form number 67, required to be filed for claiming foreign tax credit on or before the date of filing of the return terms of rule 128 (9) of the Income Tax Rules 1962, was filed belatedly. This is also confirmed by notification number 9 on 19 September 2017. Therefore the AO was of the view that assessee has failed to comply with letter and spirit of the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139 (1) of the act but during the course of assessment proceedings, the assessee should have been allowed credit for foreign taxes paid. Assessee further relied on the decision of Brinda Ramakrishna versus Income Tax Officer 5 (3) (1) Bangalore (2021) ITA No. 454/bang/2021 dated 17/11/2021 along with several other decisions stating that rule 128 being merely a procedural provision, any default in its compliance shall not result in disallowance of the credit eligible to be allowed and claimed. 07. The learned CIT - A held that for the purpose of claiming foreign tax credit relief, form number 67 was notified on 27 June 2016 which is required to be furnished on or before the due date specified for furnishing the return of income. Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income as provided Under Rule 128 is mandatory in nature. It is further stated that merely because the time limit for filing of the form is mentioned in the rules, it cannot be said that it is not mandatory. He submitted that for claiming of the tax credit, which is a beneficial to assessee, therefore, the conditions prescribed therein should be strictly followed. He further submitted that non-filing of form number 67 on or before the due date of filing of the return of income results into consequence of denial of foreign tax credit, therefore, the time limit provided Under Rule128 cannot be said to be directory in nature. Therefore, it is mandatory. As assessee failed to fulfil the mandatory condition of claiming foreign tax credit, same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisely, the fact shows that assessee filed return of income u/s 139 (1) of the income tax act. In such a return of income, she claimed the foreign tax credit. However, form number 67 was filed during the course of assessment proceedings and not before the due date of filing return. Rule 128 (9) of the Income Tax Rules 1962 provides that the statement in Form No. 67 referred to in clause (i) of sub-rule (8) and the certificate or the statement referred to in clause (ii) of sub-rule (8) shall be furnished on or before the due date specified for furnishing the return of income under sub-section (1) of section 139, in the manner specified for furnishing such return of income. We find that coordinate bench in 42 Hertz Software India (P.) Ltd v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of the assessment year. Therefore, legislature in its own wisdom has extended such date which is beyond the due date of filing of the return of income. Further , the fact in the present case is quite distinct then the issue involved in the decision of the honourable Supreme Court in case of Wipro Ltd (supra). Here it is not the case of violation of any of the provisions of the act but of the rule, which does not provide for any consequence, if not complied with. Therefore, respectfully following the decisions of the coordinate bench on this issue, we hold the assessee is eligible for foreign tax credit, as she has filed form number 67 before completion of the assessment, though not in accordance with rule 128 (9) of The Income Tax Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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