TMI Blog2022 (12) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... of such Form 67 is not mandatory but directory in nature. In the instant case, the delay in filing of the FTC certificate in Form-67 was explained to be due to non receipt of the tax deduction certificate form the foreign deductor from Zambia within time for which the said Form-67 was filed belatedly by 14 days. As stated that the tax jurisdiction of the Zambian deductor follow different period for taxing the income and have different due dates for filing the return as compared to India. So far as the decision relied on by ld. DR in the case of Muralikrishna Vaddi [ 2022 (6) TMI 693 - ITAT VISAKHAPATNAM] we find there is a delay of more than two years without any valid and reasonable cause. Therefore, the said decision in our opinion cannot be applicable to the facts of the present case. In any case, when there are two view possible, the view which is favourable to the assessee has to be followed as in the case of CIT vs. Vegetable Products Ltd.[ 1973 (1) TMI 1 - SUPREME COURT] . Since, the assessee in the instant case has filed FTC certificate in Form No.67 with delay of only 14 days, therefore following the decision in the case of M/s. 42 Hertz Software India Pvt.Ltd.[ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiming Foreign Tax Credit u/s 90/90A of the I. T. Act. Clause 8 of Rule 128 of the above said rules stipulate that Form 67 which should be filed on or before the due date of Filing of Income Tax Return i.e., 30th November, 2018 in appellant's case for the subject assessment year. However, the appellant had filed the return of income on 11.12.2018 and the said Form 67 filed on 14th December, 2018 was late by 14 days from the due date of filing the return of income. It was submitted that the delay was due to reasons beyond the control of the appellant, inasmuch as the Tax Deduction Certificates were received from the foreign deductor from Zambia belatedly, the said Form No.67 was filed belatedly by 14 days. The reasons attributed by the Zambian deductor are that their tax jurisdiction follow different period for taxing the income and have different due dates for filing the return in comparison to India. 5.1 The assessee further submitted that the entitlement for claiming FTC emerges from the DTAA which India has entered with different countries. Referring to various decisions, it was aruged that the Provision of DTAA always have an overriding effect over the provisions of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 90/90A to the extent of Rs.1,29,14,123/- 2) The Ld. CIT (A) while observing so, totally ignored the settled principle that the requirement of filing of Form (Form No.67) 'along with the return' is 'directory' and not mandatory, as was held by various legal fora, including the Apex Court, particularly in the light of the fact that the quantum of relief claimed u/s 90/90A at Rs.1,29,14,123/- was not disturbed in any manner by the AO in the assessment order passed u/s 143(3) and also that DTAA should take precedence over domestic laws. 3) The CIT(A) ought to have appreciated that it is not mandatory to file Form 67 before filing return of income under section 139(1) to claim Foreign tax credit as Rule 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No.67 and that filing of Form No.67 is not mandatory but a directory requirement. 8. The ld. Counsel for the assessee referring to the decision of the Bangaluru Bench of the Tribunal in the case of M/s.42 Hertz Software India Pvt.Ltd vide ITA No.29/ Bang/2021 order dated 07.03.2022 for AY 2017-18 submitted that the Tribunal relying on various decisions h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 128(9) does not provide for disallowance of FTC in case of delay in filing Form No.67. This view is fortified by the decision of coordinate bench of this Tribunal in case of Ms.Brinda Kumar Krishna vs.ITO in ITA no.454/Bang/2021 by order dated 17/11/2021. 7. It s a trite law that DTAA overrides the provisions of the Act and the Rules, as held by various High Courts, which has also been approved by Hon ble Supreme Court in case of Engineering Analysis Centre of Excellence (P.) Ltd. reported in (2021) 432 ITR 471. 8. We accordingly, hold that FTC cannot be denied to the assessee. Assessee is directed to file the relevant details/evidences in support of its claim. We thus remand this issue back to the Ld.AO to consider the claim of assessee in accordance with law, based on the verification carried out in respect of the supporting documents filed by assessee. Accordingly the grounds raised by assessee stands allowed for statistical purposes. 12. We further find, in the instant case, the delay in filing of the FTC certificate in Form-67 was explained to be due to non receipt of the tax deduction certificate form the foreign deductor from Zambia within time for which t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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