TMI Blog2023 (3) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... s the assessee has already paid taxes in UK and as per Article 24(2) of the DTAA between India and UK the foreign income cannot be taxed twice. The decision of Bangalore Tribunal in case of Vinodkumar Lakshmipathi [ 2022 (10) TMI 87 - ITAT BANGALORE] is dealing on the identical situation and the Tribunal has taken cognizance of the same in light of the decision of Hon ble Supreme Court in case of Mangalore Chemicals Fertilizers Ltd. [ 1991 (8) TMI 83 - SUPREME COURT] and 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 contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted it be so held now. 4. The learned CIT(A) has erred in facts and in law in nor allowing the credit in respect of foreign tax paid of Rs.2,37,653 u/s. 90 of the Act read with Article 24(2) of the DTAA between India and UK, inspite of the fact that foreign income on which such taxes has been paid is duly offered to tax in return of income. 5. The learned CIT(A) has erred in facts and in law in holding that claim of foreign tax credit cannot be granted on the ground that the provisions of Rule 128(8)(ii) and 128(9) of the Income Tax Rules are not complied with. It is submitted it be so held now. 6. The learned CIT(A) erred in facts and in law in not allowing the credit of foreign tax paid on invalid ground of delay in filing Form 67 as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der was passed on 29.04.2021 but the mistake for non-grant of foreign tax credit was not rectified. 4. Being aggrieved by the rectification order under Section 154 dated 29.04.2021 the assessee filed appeal before the CIT(A). The CIT(A) dismiss the appeal of the assessee. 5. The Ld. A.R. submitted that the Assessing Officer without giving any opportunity to the assessee as not rectified return of income under Section 143(1) thereby not granting foreign tax credit as per Section 154(3) of the Act. The Ld. A.R. further submitted that the CIT(A) has also not granted any opportunity of being heard to the assessee and thus failed to follow principle of natural justice. The Ld. A.R. further submitted that the CIT(A) as well as the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for credit of the same while filing the return of income. The CIT(A) held that the assessee has not filed Form 67 before time allowed under Section 139(5) of the Act and therefore, Form 67 is non-est in law does not categorically discussed the assessee s case as the assessee has already paid taxes in UK and as per Article 24(2) of the DTAA between India and UK the foreign income cannot be taxed twice. The decision of Bangalore Tribunal in case of Vinodkumar Lakshmipathi vs. CIT is dealing on the identical situation and the Tribunal has taken cognizance of the same in light of the decision of Hon ble Supreme Court in case of Mangalore Chemicals Fertilizers Ltd. vs. DCIT (1992 Supp (1) SCC 21) wherein it was observed as under: The mere fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Axis Computers (India) (P.) Ltd. [2009] 178 Taxman 143 (Delhi) PCIT, Kanpur v. Surya Merchants Ltd. [2016] 72 taxmann.com 16 (Allahabad) CIT, Central Circle v. American Data Solutions India (P.) Ltd [2014] 45 taxmann.com 379 (Karnataka) CIT-II v. Mantec Consultants (P.) Ltd. [2009] 178 Taxman 429 (Delhi) CIT v. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e but rather the decision was given that the relevant rule was mandatory and hence non-furnishing of Form No. 67 before the due date u/s. 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) 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. 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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