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TMI Blog2024 (3) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... rming the denial of Foreign Tax Credit (FTC) claimed u/s. 90 of the Act, amounting to Rs. 43,015. 3. The brief facts of the case are as follows: The assessee an individual filed his return of income for the assessment year 2020-2021 on 31.12.2020 within the due date prescribed u/s. 139(1) of the Act. The assessee had claimed FTC amounting to Rs. 43,015 u/s. 90 of the Act. However, the requisite Form 67 was filed only on 24.01.2022 beyond the prescribed time limit on 10.01.2021 u/s. 139(1) of the Act. The CPC while processing the return u/s 143(1) of the Act on 24.12.2021, did not grant the credit for FTC since the requisite Form 67 was not filed by the assessee within the due date prescribed u/s. 139(1) of the Act. Therefore, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64-ITAT-2023 (Bangalore)-O] (vii) Sonia Sharma v. ITO [TS-5659-ITAT-2023 (Delhi)- O] (viii) Keval Niraj Hutheesing v. ITO [ITA No.559/Ahd/2022 - order dated 29.03.2023] 6. The learned Departmental Representative supported the orders of the CPC and the CIT(A). 7. We have heard the rival submissions and perused the material on record. The various orders of the Tribunal (cited supra), had categorically held that the requirement of filing Form 67 within the due date prescribed u/s. 139(1) of the Act cannot be treated as mandatory. Further, it was held that it is to be treated as directory in nature. This is because Rule 128(9) of the Income-tax Rules, 1962 does not provide for disallowance of FTC in case of delay in filing Form 67. On ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve." The Tribunal further held that: Further reliance was placed on the decision of the Hon'ble Supreme Court, in the case of Sambhaji and Others v. Gangabai and Others, reported in [2008] 17 SCC 117, wherein it has been held that procedure cannot be a tyrant but only a servant. It is not an obstruction in the implementation of the provisions of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, to the extent they are beneficial to the assessee. Reliance in this regard is placed on the following cases and circulars: Union of India v. Azadi Bachao Andolan [2003] 263 ITR 706 (SC) CIT v. Eli Lily & Co. (India) (P.) Ltd. [2009] 178 Taxman 505 (SC) GE India Technology Centre (P.) Ltd. v. CIT [2010] 193 Taxman 234 (SC) Engineering Analysis Centre of Excellence (P.) Ltd. v. CIT [2021] 125 taxmann.com 42 (SC) (Pgs. 106-109 of PB 2-Paras 25 & 26) CBDT Circular No. 333 dated 2/4/82 137 ITR (St.) It was submitted 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 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 circumstances, proceedings u/s. 154 of the Act, can be resorted to. Even otherwise the ground on which the revenue authorities rejected the Assessee's application u/s. 154 of the Act was not on the ground that the issue was debatable but on merits. I therefore do not agree with the submission of the learned DR in this regard. 17. In the result, the appeal is allowed.'" 8. Thus, the facts are identical in the present case as well and therefore, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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