TMI Blog2023 (2) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... date prescribed u/s 139(4) of the Act, the assessee furnished Form 67 and also filed the revised return. Claim of the assessee towards withholding taxes paid in Tanzania is to be given against the tax liability on the income declared in India. Even otherwise filing of Form 67 has been held to be directory in nature by the Coordinate Bench, Mumbai in the case of Sonakshi Sinha [ 2022 (10) TMI 107 - ITAT MUMBAI] wherein as held 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 Rules, which provided that such form shall be filed on or before the due date of filing of the return of income. Thus allow the claim of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was never in place at the time of filing of return. (6) The Ld. Lower authorities erred in ignoring the revised returns which is held to substitute the original return. 3. Brief facts of the case are that the assessee is a Private Limited Company and filed its return of income on 06.07.2017 for A.Y. 2017-18. The assessee-company is engaged in providing Tea Consultancy Services in Tanzania. The payment for providing Tea Consultancy Services for F.Y. 2015-16 from Tanzania was received after deduction of withholding taxes of Rs.21,24,975/-. Income of Rs.24,72,879/- declared in the income tax return filed in India. Relief under section 90 of the Act was claimed towards withholding taxes paid in Tanzania against the tax liability i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 143(1) denying the relief on 05,04.2019. ld. CIT(Appeals) dismissed the appeal of assessee on the ground that filing Form 67 was mandatory and delay cannot be condoned. Aggrieved by such order of ld. CIT(Appeals), the assessee has moved the appeal before the Tribunal. According to assessee, the return under section 139(1) was already filed on 06.07.2017 while method of filing Form 67 was prescribed only on 19.09.2017. Thus it was beyond the control of assessee to file Form 67 before filing return under section 139(1). Ld. Counsel submitted that CBDT vide Notification No. 11/2022 dated 18.08.2022 has amended Rule 128(9) allowing to file Form 67 before the last date of filing of filing return under 139(4). It was also pleaded by the ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, in violation of provision of section 143(1), rendering the adjustment is bad in law. He further contended that return under section 139(5) substitutes return under section 139(1) and thus, the same having complied to Rule 128 should not result in denial of foreign tax credit. 6. On the other hand, ld. Departmental Representative supported the order of lower authorities. 7. We have heard the rival contentions and gone through the relevant records placed before us. The only issue for our consideration is regarding relief under section 90 of the Act at Rs.7,38,649/- claimed by the assessee but denied by both the lower authorities for delay in filing Form No. 67. We observe that it is not in dispute that the assessee earned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn under section 139(4) of the Act for A.Y. 2017-18 was 31.03.2019 and the assessee filed Form 67 on 28.09.2018 alongwith revised return. Under these given facts and circumstances, where the assessee filed the original return on 06.07.2017 when there was no mechanism for filing Form No. 67, as it came into effect on 19.09.2017 and thereafter before the expiry of the due date prescribed under section 139(4) of the Act, the assessee furnished Form 67 and also filed the revised return. I am of the considered view that the claim of the assessee towards withholding taxes paid in Tanzania is to be given against the tax liability on the income declared in India. Even otherwise filing of Form 67 has been held to be directory in nature by the Coord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Rama Krishna v.ITO [2022] 135 taxmann.com 358 (Bang Trib) it was held that one of the requirements of Rule128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns and that this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No. 67. Same view is also taken by a coordinate division bench in Vinodkumar Lakshmipathi V CIT(A) NFAC ITA No.680/Bang/2022 06.09.2022. It is well settled that while laying down a particular procedure, if no negative or adverse consequences are contemplated for non-adherence to such procedure, the relevant provision is normally not taken to be m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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