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TMI Blog2024 (2) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to the TAX DEDUCTION CERTIFICATE (TDS) already submit to the Assessing Officer during the course of rectification request u/s- 154. On the facts and evidence submitted to the AO of the case he ought to have accepted TDS as sufficient evidences have been allowing the relief u/s-90 (FTC rule 128(9). 3. As per the provisions of the Double Taxation Avoidance Agreement of INDIA and BELGIUM country, Stated that if a resident of India derives income which, in accordance with the provisions of the Agreement, may be taxed in Belgium, India SHALL allow as a deduction from the tax on the income of that resident an amount equal to the income-tax paid in Belgium whether directly or by deduction. Such deduction shall not, however, exceed that part of the income-tax (as computed before the deduction is given) which is attributable to the income which may be taxed in Belgium. Further, where such resident is a company by which surtax is payable in India, the deduction in respect of income-tax paid in Belgium shall be allowed in the first instance from income-tax payable by the company in India and as to the balance, if any, from surtax payable by it in India. (DTAA with Belgium, Article-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 128(9) of the IT Rules. The undersigned extract herein below Rule 128(9) of the IT Rules, 1962 for reference:- "128 (9) The statement in Form No. OTMENT 67 referred to in clause (i) of sub- rule (8) and the certificate or the statement referred to in clause (ii) of sub-rule (8) shall be furnished on or before the due date specified for furnishing the return of income under sub-section (1) of section 139, in the manner specified for furnishing such return of income." 4.4. From the plain reading of rule 128(9) of the IT Rules, it is clear that the statement in Form No. 67 shall be furnished on or before the due date specified for furnishing the return of income under sub-section (1) of section 139 of the Act. Therefore, in my considered view that since the word "shall" has been used in the Rule 128(9) that it is mandatory in nature. Therefore, I find no infirmity in the order of the AO/ CPC and hence no interference is required. Thus, the ground of appeal Nos. 1 to 4 is dismissed. 5. In the result, the appeal filed by the appellant is dismissed." 5. As the appeal of the assessee was dismissed by the ld. CIT (A) confirming the view of the ld. AO holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due date of filing the return of income for the year under consideration, therefore, the assessee was rightly found not eligible for the credit of that amount. 6. We find that the case of assessee is fully covered by the recent decision of the ITAT Jaipur Bench, adjudicated exactly on similar issue in the case of Ritesh Kumar Garg vs. ITO in ITA No. 261/JP/2022 dated 15.09.2022, wherein the claim of Foreign Tax Credit (FTC) was allowed by observing in para 5.1 to 6 as under :- "5.1. After having meticulously gone through the facts of the present case, we are of the view that there is no dispute that assessee is entitled to claim relief under section 90 of the IT Act but the disallowance was confirmed on the sole ground that the relevant form 67 prescribed under section 128(8) was not filed within the time stipulated under sub rule 9 of Rule 128. It is important to mention here that section 90 of the Act provides that Government of India can enter into Agreement with other countries for granting relief in respect of income on which taxes are paid in country outside India and such income is also taxable in India. In this regard Article 22 of India Finland DTAA provides fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht by the assessee under section 90 of the Act would be denied. In case the intention of the Act or Rule was to deny the FTC, then in that eventuality either the Act or the Rules would have specifically provided that the FTC would be disallowed if the assessee does not file Form 67 within the due date prescribed under section 139(1) of the Act. Thus filing of Form 67, in my view, is a procedural/directory requirement and is not a mandatory requirement. Therefore, violation of procedural norms does not extinguish the substantive right of claiming the credit of FTC. While reaching to this conclusion, we draw strength from the decision of Hon'ble Supreme Court of India in the case of Mangalore Chemicals & Fertilizers Ltd. vs. Deputy Commissioner, (1992) Supp (1) Supreme Court Cases 21 wherein the Hon'ble Supreme Court has held as under :- "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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are India Pvt. Ltd. vs. ACIT (supra). Therefore, considering the totality of facts and legal position as discussed above, I am of the view that assessee is entitled for the credit of FTC under section 90 of the Act. Thus, I, accordingly direct the AO to allow the relief of FTC under section 90 of the Act in the case of assessee. 6. In the result, appeal of the assessee is allowed." "We, therefore, following the coordinate bench decision referred herein above, wherein case laws cited was considered and reliance was placed on the judgment of the Hon'ble Supreme Court, allow the claim of Foreign Tax Credit (FTC) in favour of the assessee. The AO is accordingly directed to allow relief to the assessee. The order of the ld. CIT (A) is set aside.'' Since the issue raised by the assessee (supra) is similar to the case of Juan Miguel Guerrero Ferrer vs DCIT (supra), therefore, the decision taken therein shall apply mutatis mutandis in the case of the assessee also as the claim of the assessee is duly supported by the ITR filed and the Form no. 67 though late. Thus, the AO is accordingly directed to allow relief to the assessee based on the ITR and form no 67 filed by the assessee. ..... 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