9911796707
TMI Blog2024 (1) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Credit as the Form.No.67 was not filed before due date of filling of return of income U/sec 139(1) of the Act. 2. At the time of hearing, the Ld.AR of the assessee submitted that there is a delay of 6 days in filing the appeal before the Hon'ble Tribunal and filed the application for condonation of delay. Whereas, the facts mentioned in the application is reasonable and the Ld.DR has no specific objections. Accordingly, we condone the delay and admit the appeal. 3. The briefs facts of the case are that, the assessee is an individual and derives income from house property, income from capital gains, income from other sources and also receives salary from foreign country Maynmar. The assessee has filed the return of income ITR 2 for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of foreign Tax Credit and the Ld.AR substantiated the submissions with the factual paper book and relied on the judicial decisions and prayed for allowing the appeal. Per Contra, the Ld. DR supported the order of the CIT(A). 6. We heard rival submissions and perused the material on record. The assessee has raised the grounds of appeal challenging the action of the assessee officer which was confirmed by the CIT(A) in respect of the denial of foreign tax credit (FTC) as the assessee has filed the Form No. 67 beyond the due date and after processing of return of income U/sec143(1) of the Act . Whereas, the assessee has filed Form No 67 online on the portal of the Income Tax Department on 6.07.2022 in order to comply with Rule 128 of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that when there is no condition prescribed in DTAA that the FTC can be disallowed for non-compliance of any procedural provision. As the provisions of DTAA override the provisions of the Act, the Assessee has vested right to claim the FTC under the tax treaty, the same cannot be disallowed for mere delay in compliance of a procedural provision. 5. On the contrary, the Ld. DR submitted that fulfillment of requirement under rule 128(9) of the Rules, is mandatory and hence the Revenue authorities were justified in refusing to FTC. We have perused he submissions advanced by both sides in light of records placed before us. 6. There is no dispute that the Assessee is entitled to claim FTC. On perusal of provisions of Rule 128(8) & (9), it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the filling of Form No.67 is not mandatory but directory in Para 13 to 17 of the order which is read as under: 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. o Union of India Vs. Azadi Bachao Andolan (2003) 263 ITR 706 (Supreme Court) o CIT Vs. Eli Lily & Co (India) P. Ltd (2009) 178 Taxman 505 (Supreme Court) o GE India Technology centre P Ltd. Vs. CIT ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the due date under Section 139(1) of the Act was fatal to the claim for FTC. 16. I have given a careful consideration to the rival submissions. I agree with the contentions put forth by the learned counsel for the Assessee and hold that (i) Rue 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. I am of the view that the issue was not debatable and there was only one view possible on the issue which is the view set out above. I am also of the view that the issue in the proceedings under Section 154 of the Act, even if ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
