TMI Blog2023 (3) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed within the due date prescribed for filing return under Section 139(1) of the Act. This issue is no longer res-integra and the same is covered in favour of the assessee by the coordinate bench order of the Tribunal in the case of Shashidhar Seetharam Sharma[ 2022 (9) TMI 1430 - ITAT BANGALORE] The coordinate bench order of the Bangalore Tribunal had considered other coordinate benches orders and had held that (i) Rule 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No. 67; (ii) filing for Form No. 67 is not mandatory but a directory requirement and (iii) DTAA overrides the provision of the Act and the rules cannot be contrary to the Act. It was concluded by the Tribunal that non-furnishing of Form No. 67 before the due date under Section 139(1) of the Act is not fatal to the claim for FTC. We direct the AO to allow the claim of FTC. Appeal filed by the assessee is allowed. - ITA No. 1158/Bang/2022 - - - Dated:- 23-2-2023 - Shri Chandra Poojari , Accountant Member And Shri George George K. , Judicial Member For the Assessee : Shri Mukesh Kumar Jain J. CA For the Revenue : Shri Sankarganesh K. , Addl CIT - DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting of FTC by CPC is found to be strictly in accordance with law as applicable to the undisputed facts of the case. The claim for benefit of tax relief was made by the appellant and therefore the primary onus was on the appellant to comply with the statutory requirements, as held by the Hon'ble Bombay High Court in the case of Commissioner of Income-tax v. Shivanand Electronics 209 ITR 63 as under: When the Legislature casts a duty on the assesses claiming certain benefit, to comply with requirements which are associated with such benefit, the assessee cannot get the benefit without doing his part of the duty. He cannot be allowed to say that it was for the ITO to ask him to do so. If the assessee does not do his part of the statutory duty, the ITO may proceed to decide the allowably or otherwise of the relief on the basis of the facts and material available before him. 4.13. In view of the above facts and provisions of law, the tax relief claimed under section 90 as per Form 67 by the appellant is clearly not allowable and the order of the AO does not warrant any interference on the issue. Appellant's Ground No.1 to 10 are dismissed accordingly. 5. Agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. The only issue under consideration in the present appeal is that the NFAC denied of FTC available to the Assessee merely because there was a delay in filling Form 67 i.e. it was filed after the due date for filling original return of income prescribed under section 139(1) of the income tax Act. The said issue under consideration is no longer res integra. We note that on identical issue, the Co-ordinate Bench of ITAT, Bangalore in the case of Brinda Rama Krishna (in ITA No. 454/Bang/2021 for AY.2018-19), order dated 17.11.2021 held that (i) Rule 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No.67; (ii) filing of Form No.67 is not mandatory but a directory requirement and (iii) DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. Therefore, non-furnishing of Form No.67 before the due date u/s 139(1) of the Act is not fatal to the claim for FTC. The findings of the Coordinate Bench is reproduced below: 2. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in Form No.67 referred to in clause (i) of subrule (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 subsection (1) of section 139, in the manner specified for furnishing such return of income. 4. The Assessee claimed FTC of Rs. 4,73,779/- u/s. 90 of the Act read with Article 24 of India Australia tax treaty ( DTAA ) in a revised return of income filed on 31.8.2018. The Assessee had not filed the Form 67 before filing the return of income. On realising the same, the Assessee filed Form 67 in support of claim of foreign tax credit on 18.04.2020. The revised return of income was processed by Centralized Processing Centre (CPC) electronically and intimation u/s 143(1) of the Act on 28.05.2020 was passed disallowing the claim of FTC. 5. The Assessee filed a rectification application before the AO on 15.06.2020 25.02.2021 and submitted that credit for FTC as claimed in the return should be given. In the rectification order dated 10.03.2021, the AO upheld the action on the ground that the Assessee has failed to furnish Form 67 on or before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Act gives power to the CBDT to prescribe Rules for various purposes. Section 295(2)(ha) gives power to the Board to issue Rules for FTC. The relevant extract is as follow: (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters: (ha) the procedure for granting of relief or deduction, as the case may be, of any income-tax paid in any country or specified territory outside India, under section 90 or section 90A or section 91, against the income-tax payable under this Act; 9. It was submitted that the Board has power to prescribe procedure to granting FTC. However, the Board does not have power to prescribe a condition or provide for disallowance of FTC. The procedure prescribed in Rule 128 should therefore be interpreted in this context. Rule 128 is therefore a procedural provision and not a mandatory provision. 10. It was further submitted that Rule 128(9) 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) of the Act. However, the Rule nowhere provides that if the said Form 67 is not filed within the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s specific provision for disallowance of deduction/exemption if audit report is not filed along with the return, various High Courts have taken a view that filing of audit report is directory and not mandatory. Reliance in this regard was placed on the following cases: CIT vs Axis Computers (India) (P.) Ltd [2009] 178 Taxman 143 (Delhi) PCIT, Kanpur vs Surya Merchants Ltd [2016] 72 com 16 (Allahabad) CIT, Central Circle vs American Data Solutions India (P.) Ltd [2014] 45 com 379 (Karnataka) CIT-II vs Mantec Consultants (P.) Ltd [2009] 178 Taxman 429 (Delhi) CIT vs ACE Multitaxes Systems (P.) Ltd [2009] 317 ITR 207 (Karnataka). 13. It was submitted that as per the provisions of section 90(2) of the Act, where the Central Government of India has entered into a DTAA, the provisions of the Act would apply to the extent they are more beneficial to a taxpayer. Therefore, the provisions of DTAA override the provisions of the Act, to the extent they are beneficial to the assessee. Reliance in this regard is placed on the following cases and circulars: Union of India v. Azadi Bachao Andolan [2003] 263 ITR 706 (SC) CIT v Eli Lily Co (India) P Ltd (2009) 178 Taxman 505 (SC) GE India T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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