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TMI Blog2024 (2) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 2. We have heard the rival submissions made by the respective parties and we have also perused the relevant materials available on record. 3. The appellant was a salaried individual and was employed with Shell India Market Private Limited and was sent on an international assignment to Australia from 27th November, 2017 to 14th November, 2018. As the appellant worked in Australia, he was required to offer salary income earned therein for the period commencing from 27th November, 2017 to 14th November, 2018 to tax in Australia and accordingly tax was duly paid on the salary earned in Australia. Naturally, the tax on such salary income earned by the appellant in Australia is not to be paid in India as the same would be paid twice. In orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected, particularly, on this ground that the JCIT has not been conferred with any such delegation of power to codone the delay in filing Form No.67. It was further mentioned in the order impugned before us that the appellant, in that event, requires to approach the appropriate competent authority to get the delay in filing Form No.67 condoned. At the time of hearing of the instant appeal, the Ld. Counsel appearing for the assessee before us stated that the issue is squarely covered by the judgment passed in the Co-ordinate Bench in the case of Kewal Niraj Hutheesing vs. ITO in ITA No. 559/Ahd/2022 for A.Y. 2019-20, the copy whereof is annexed with paper book filed by the appellant before us. 5. On the contrary, the Ld. DR relied upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servation whereof is as follows: "7. Heard both the parties and perused all the relevant material available on record. It is pertinent to note that the assessee has paid the taxes on the income earned in United Kingdom in that country and assessee is asking 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 deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic provision for disallowance of deduction/exemption if audit report is not filed along with the return, various High Courts have taken a view that filing of audit report is directory and not mandatory. Reliance in this regard was placed on the following cases: ♦ CIT v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejoinder, the learned counsel for the Assessee submitted that Form No. 67 was available before the AO when the intimation u/s. 143(1) of the Act dated 28-5- 2020 was passed. He pointed out that the AO or the CIT(A) did not dismiss the Assessee application for rectification u/s. 154 of the Act on the ground that the issue was debatable 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndatory but a directory requirement. Moreso, when DTAA overrides the provision of the Act, the Rules cannot be contrary to the Act and hence, this right to claim of FTC is a vested right of the appellant, cannot be denied. We find sufficient case has been made out by the appellant. Hence, respectfully relying upon the same, we allow the appeal on this aspect of filing of Form No. 67. We condone the delay, if any. We, thus, direct the Ld. CIT(A) to pass orders on merit strictly in accordance with law upon giving an opportunity of being heard to the appellant and upon considering the evidence on record or any other evidence which the appellant may choose to file at the time of hearing of the matter. 8. In the result, the appeal preferred by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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