TMI Blog2023 (10) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year. Therefore, legislature in its own wisdom has extended such date which is beyond the due date of filing of the return of income. 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 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 Rules, which provided that such form shall be filed on or before the due date of filing of the return of income. Assessee appeal allowed. - Shri Saktijit Dey, Vice President And Shri N.K. Billaiya, Accountant Member For the Assessee : Shri Arij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed under rule 128 and secondly, the issue being a debatable one, cannot be a subject matter of rectification under section 154 of the Act. At the outset, we will address the issue of limitation in filing Form 67. No doubt, as per the extant Rule, Form 67 in support of claim of foreign tax credit is to be filed within the due date of filing of return of income under section 139(1) of the Act. The due date of filing of return for the impugned assessment year was 31-10-2020. It is a fact that the assessee filed the original return of income before the due date. However, Form 67 was filed along with the revised return of income was filed on 31-5-2021. It is a fact that to prevent spread of COVID-19 Pandemic, the Government imposed various r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentions put forth by the learned counsel for the Assessee and hold that (i) rule 128(9) of the Rules does not provide the 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. I am of the view that the issue was not debatable and there was only one view possible the issue which is the view set out above. I am also of the view possible on the issue which is the view lot above. I am also of the view that the issue in the proceedings u/s 154 of the Act, even if it involves long drawn process of reasoning, the answer to the question can be only one and in such circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he situation is quite different. He submitted that these conditions have been considered by the coordinate bench in case of Brinda Ramakrishna. 12. We have carefully considered the rival contention and perused the orders of the lower authorities. Short question in this appeal is whether assessee is entitled to foreign tax credit even when form number 67 required to be filed according to the provisions of rule 128 (9) of the Income 012. We have carefully considered the rival contention and perused the orders of the lower authorities. Short question in this appeal is whether assessee is entitled to foreign tax credit even when form number 67 required to be filed according to the provisions of rule 128 (9) of the Income-tax Rules on or be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akshmipathi v. CIT(A) NFAC ITA No. 680/Bang/2022 6-9-2022. 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 mandatory and is considered to be purely directory. Admittedly, Rule 128 does not prescribe denial of credit of FTC. Further the Act i.e. section 90 or 91 also do not prescribe timeline for filing of such declaration on or before due date of filing of ROI. Further rule 128 (4) clearly provides the condition where the foreign tax credit would not be allowed. Rule 128 (9) does not say that if prescribed form would not be filed on or before the due date of filing of the return no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
