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TMI Blog2024 (2) TMI 1483X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit of Rs. 12,14,867 under section 90 of the Act read with Article 23 of IndiaIndonesia DTAA. 1.2 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals), NFAC was not justified and grossly erred in confirming the late filing of Form No. 67 invalid for availing treaty (DTAA) benefit. 1.3 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals), NFAC was not justified and grossly erred in confirming that filing of Form no. 67 within due date is a pre-condition for claiming foreign tax credit. 2. That the appellant craves leave to add, amend, modify, rescind, supplement, or alter any of the grounds stated here-in-above, either before or at the time of hearing of this appeal." Assessment Years: 2020-21 "1.1 That on the facts and in the circumstances of the case, the Learned CIT(Appeals)/Addl./Joint CIT(Appeals), NFAC [here in after referred to as Ld. CIT(Appeals), NFAC] was not justified and grossly erred in confirming the disallowance of Foreign Tax Credit of Rs. 12,53,343 under section 90 of the Act read with Article 23 of IndiaIndonesia DTAA. 1.2 That on the facts and in the circumstances of the case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as late filing of Form-67. 6. We have heard rival contentions and perused the records placed before us. Disallowance of foreign tax credit for AY 2019-20 & AY 2020-21 for late filing of Form-67 is in dispute before us. The assessee earned income from Indonesia and claimed foreign tax credit. Except for the delayed uploading of Form-67 no other discrepancy has been noticed by the Revenue authorities for allowing of foreign tax credit. This issue has come for our consideration on various occasions and it has been consistently held that filing of Form-67 is directive in nature and not mandatory and therefore, just for the sake of delay in filing of Form-67, the assessee should not be denied the claim of foreign tax credit. In one of the decisions of this Tribunal in the case of Sobhan Lal Gangopadhyay (supra) relevant finding of this Tribunal reads as follows: "4. We have heard rival contentions and perused the material placed before us. 5. We observe that the assessee is an individual and filed its return of income on 06/10/2020 for Assessment Year 2020-21 declaring income of Rs. 42,35,370/-. During the year under consideration, the assessee has claimed to be out of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form number 67 was filed during the course of assessment proceedings and not before the due date of filing return. Rule 128 (9) of the Income Tax Rules 1962 provides that the statement in Form No. 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. We find that coordinate bench in 42 Hertz Software India (P.) Ltd v. ACIT [2022] 139 taxmann.com 448 (Bangalore - Trib.) wherein following its earlier order in the case of Ms. Brinda Rama Krishna vs. ITO [2022] 135 taxmann.com 358 (Bang - Trib) it was held that one of the requirements of Rule 128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns and that this requirement cannot be treated as mandatory rather it is directory in nature. This is because Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No. 67. Same view is also taken by a coordinate division bench in Vinodkumar Lakshmipathi V CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 67. Thus, effective ground of the assessee is allowed. 8. In the result, appeal of the assessee is allowed." 7. Recently, Hon'ble Madras High Court in the case of Duraiswamy Kumaraswamy (supra) dealt with the similar issue and decided the writ petition in favour of the assessee which reads as follows: "9. In the present case, the petitioner initially worked at Kenya and subsequently, he became the resident of Indian from the assessment year 2018-2019 and 2019-2020. The petitioner admitted the fact that he has filed his return in India on 10.08.2019. The intimation under Section 143(1) was issued on 26.03.2020. However, he has filed the return without Form-67 which is required to be filed under Rule 128 to claim the benefit of FTC and the same came to be filed on 02.02.2021 which was well before the completion of the assessment year. The intimation under Section 143(1) was issued from the CPC only on 26.03.2021. 10. According to the learned counsel appearing for the respondent, the procedure under Rule 128 is mandatory and cannot be considered as directory in nature. The petitioner has filed his return including his Kenya income along with his Indian Income tax and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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