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TMI Blog2025 (4) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... ee filed the statement in Form 67 belatedly and not within the due date specified for furnishing the return of income u/s 139(1) of the Act as provided under Rule 128(9) of the I.T. Rules, 1962. The learned AR of the assessee has contended that there are various judgements on this point that filing of Form 67 within the due date prescribed in filing the return of income u/s 139(1) of the I.T. Act, 1961 is only directory and not mandatory and therefore, the claim of Foreign Tax Credit cannot be denied merely on the ground of delay in filing Form-67. In support of his contention, he has relied upon the decision of the Bangalore Benches of the Tribunal in case of 42 Hertz Software India (P) Ltd vs. ACIT (2022) 139 Taxmann.com 448 (Bang.) as well as the decision of the Amritsar Bench of the Tribunal in case of Harbans Singh v. AO, CPC reported in 208 ITD 151. H3e has also relied upon the decision of the Delhi Bench of the Tribunal in case of NICDC Neemrana Solar Power Ltd. v. Deputy Commissioner of Income-tax reported in 171 Taxmann.com 653 and submitted that the Tribunal has taken a consistent view and held that the provisions of DTAA would prevail over the provisions of the I.T. Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the provisions of the Act and the Rules, as held by various High Courts, which has also been approved by Hon'ble Supreme Court in case of Engineering Analysis Centre of Excellence (P.) Ltd. v. CIT [2021] 125 taxmann.com 42/281 Taxman 19/432 ITR 471. 8. We accordingly, hold that FTC cannot be denied to the assessee. Assessee is directed to file the relevant details/evidences in support of its claim. We thus remand this issue back to the Ld.AO to consider the claim of assessee in accordance with law, based on the verification carried out in respect of the supporting documents filed by assessee." 6. Thus, the Tribunal has held that provisions of DTAA overrides the provisions of Act and the Rule as held by the Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence vs. CIT 432 ITR 471. Similar view has been taken by the Delhi Bench of the Tribunal in the case of NICDC Neemrana Solar Power Ltd. v. Deputy Commissioner of Income-tax (Supra) in Para 8 & 9 as under: "8. In the case of Sumedha Arora v. Income -Tax Officer [2023] 154 taxmann.com 535 (Delhi - Trib.) the Coordinate bench held as under: "7. As stated, section 90 of the Act provides that Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion merely on account of delay in filing of certain forms/reports in contrast to other provisions of the Act such as 80AC, 801A(7), 10A(5) and 10B(5) where attendant conditions of compliance are mandatory. 9. In the factual backdrop, we notice that the Co-ordinate Bench of Tribunal in the case of Ms. Brinda Ramakrishna v. ITO [2022] 135 taxmann.com 358/193 ITD 840 (Bangalore - Trib.) in [ITA No.454/Bang/2021 order dated 17.11.2021] clearly held that filing of Form 67 is a directory requirement and having regard to the position that DTAA overrides the provisions of the Act and Rule cannot be contrary to the Act, the assessee is fully entitled to the FTC. The Tribunal also observed that issue of allowability of FTC is not a debatable issue and only one view is possible and thus seeking rectification under Section 154 could be resorted by the assessee. Similar view has been taken in 42 Hertz Software India (P.) Ltd. v. Asstt. CIT [2022] 139 taxmann.com 448 (Bangalore - Trib.) /[ITA No.29/Bang/ 2021 order dated 7th March, 2022). A reference is made to another Co-ordinate Bench decision in the case of Vinodkumar Lakshmipathi v. CIT (Appeals) NFAC [2022] 145 taxmann.com 235 (Bangalore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow as a deduction from the tax on the income of the resident an amount equal to the income tax paid, paid in the United States, whether directly or by deduction. In view of this provision over riding the provisions of the Act, according to us, rule 128(9) of the Rules has to be read down in conformity thereof. Rule 128(9) of the Rules cannot be read in isolation. Rules must be read in the context of the Act and the DTAA impacting the rights, liabilities and disabilities of the parties. 9. With this view of the matter, we are of the considered opinion that the decisions relied upon by the assessee are applicable to the facts of the case on hand while respectfully following the same, we allow the appeal, and direct the Learned Assessing Officer to verify the details of the foreign tax paid by the assessee on the earnings at foreign source and take a view inconformity with the established law discussed above." 8. The Hon'ble Madras High Court in the case of Duraiswamy Kumaraswamy v. Principal Commissioner of Income-tax, reported in 460 ITR 615 has also held in para 11 to 13 as under: "11. The law laid down by the Hon'ble Apex Court in G.M.Knitting Industries (P) Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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