TMI Blog2023 (9) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... e the assessee filed FTC in Form No. 67, although belatedly since filing of such Form 67 is not mandatory but directory in nature. Thus we direct the Assessing Officer to allow the foreign tax credit after due verification. Grounds raised by the assessee are accordingly allowed. - SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER For the Appellant : Shri S. Rama Rao, Advocate For the Respondent : Shri V. Mahidhar, Sr. DR ORDER Per R.K. Panda, A.M This appeal filed by the assessee is directed against the order dated 30.12.2022 of the learned CIT (A)-NFAC, Delhi relating to A.Y. 2019-20. 2. Facts of the case, in brief, are that the assessee is an individual deriving income from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of intimation on the ground that Form 67 was filed beyond the due date i.e. 31.08.2019. The Assessing Officer noted that the assessee filed Form 67 on 28.1.2021 claiming tax credit of Rs. 60,45,572/-. Later, the assessee filed a revised Form 67 on 26.03.2021 rectifying the claim to Rs. 58,69,594/- by paying the differential tax and interest thereon. 4. In appeal, the learned CIT (A) upheld the action of the Assessing Officer by observing as under: 5.1 T have carefully considered the AO rectification order u/s 154 of the Act passed by Rule and E-submission filed by appellant. It is seen that under section 295(2)(ha), 128 is framed to provide for the mechanism for grant of foreign tax credit to Indian resident. Rule 128(8) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpliance to rule 128(9) quoted above. Thus, foreign tax credit could not have been allowed as per rule 128(9). It is further seen that certificate or the statement specifying the nature of income as per Rule 128(2)(ii) above for income provided in form 67 is also not furnished tallying the same (as per said certificate/statement) with the figure shown in form 67 before the due date u/s. 139(1). In view of the above, appellant's claim of relief for foreign tax credit is held to be rightly denied. Accordingly, Grounds No. 1 to 5 of Appeal are dismissed. 5. Aggrieved with such order of the learned CIT (A) the assessee is in appeal before the Tribunal by raising the following grounds:- 6. The learned Counsel for the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee. We have also considered the various decisions cited before us by both sides. We find the AO in the instant case rejected the 154 rectification application on the ground that Form No. 67 was not furnished before the due date as provided u/s 139(1) in compliance to Rule 128(9). We find the learned CIT (A) NFAC upheld the action of the Assessing Officer in denying the relief for foreign tax credit, the reasons of which have already been reproduced in the preceding paragraph. We find an identical issue had come up before the Coordinate Bench of the Tribunal in the case of Shri Baburao Atluri (Supra) wherein the Tribunal, after considering various decisions, has allowed the foreign tax credit, although there was delay in filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Form 67 is to be submitted by assessee before filing of the returns. In our view, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of only '14' days, therefore following the decision of the Bangalore Bench of the Tribunal in the case of M/s. 42 Hertz Software India Pvt. Ltd.(supra), we direct the AO to allow the FTC after due verification. The grounds raised by the assessee are accordingly allowed. 9. Since the facts of the instant case are identical to the facts of the present case, therefore, respectfully following the decision of the Coordinate Bench of the Tribunal, we direct the Assessing Officer to allow the foreign tax credit of Rs. 58,69,594/- after due verification. Grounds raised by the assessee are accordingly allowed. 10. So far as the ground relating to levy of interest u/s 234B 234C are concerned, the same is mandatory and consequentia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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