2025 (3) TMI 405 - AT - Income Tax

Foreign tax credit allowed despite late Form-67 filing under section 139(1) as requirement deemed directory not mandatory

Madan Kumar Sivinigari Versus The Income Tax Officer, Ward - 5 (3) (5), Bengaluru.

The ITAT Bangalore allowed the assessee's appeal regarding denial of foreign tax credit. The AO and CIT(A) had rejected the FTC claim because Form-67 was ... Denial of claim of foreign tax credit - Form-67 was not filed on or before the due date to file the return of income u/s 139(1) - assessee before the learned CIT(A) furnished the detail of salary received in UK, return of income filed and taxes paid in UK, reconciliation sheet showing UK income included in the income offered to tax in India - HELD THAT:- Requirement of filing Form 67 is directory and not mandatory. The assessee cannot be deprived of Foreign Tax Credit merely on account of a procedural lapse. The case law referred by the learned CIT(A) is distinguishable from facts of the case on hand as the requirement of filing Form-67 is procedural and not the mandatory requirement. Accordingly, we set aside the order of the CIT(A) and direct the AO to allow the claim of FTC as claimed by the assessee. Hence, the ground of appeal of the assessee allowed for statistical purposes after necessary verification. 1. ISSUES PRESENTED and CONSIDEREDThe core legal question considered in this judgment is whether the non-filing of Form 67 before the due date prescribed under section 139(1) of the Income Tax Act should result in the denial of Foreign Tax Credit (FTC) to the assessee.2. ISSUE-WISE DETAILED ANALYSISRelevant Legal Framework and PrecedentsThe relevant legal framework involves Section 90/90A of the Income Tax Act, which deals with the relief from double taxation, and Rule 128 of the Income Tax Rules, 1962, which prescribes the procedure for claiming FTC. The Double Taxation Avoidance Agreement (DTAA) between India and the UK is also pertinent, as it allows the set-off of foreign taxes paid against Indian tax liability.Precedents considered include the Tribunal's decision in the case of Brinda Ramakrishna, which held that the filing of Form 67 is a procedural requirement and not a mandatory precondition for claiming FTC.Court's Interpretation and ReasoningThe Tribunal noted that Rule 128 does not specify any consequence for the non-filing or delayed filing of Form 67. In the absence of such penal consequences, the requirement is construed as procedural rather than substantive. The intent of the legislature, as reflected in section 90 of the Act, is to provide relief from double taxation. Denying FTC solely on account of a procedural lapse would defeat this purpose. The provisions of the DTAA override domestic tax laws, and the Revenue authorities cannot deny FTC on procedural grounds when substantive conditions under the DTAA and the Income Tax Act have been met.Key Evidence and FindingsThe Tribunal considered the factual matrix of the case, including the assessee's employment with Tech Mahindra Ltd -UK, the taxes paid in the UK, and the inclusion of UK income in the income offered to tax in India. The Tribunal also examined the procedural requirement of filing Form 67 and its interpretation in previous Tribunal decisions.Application of Law to FactsThe Tribunal applied the law by determining that the requirement to file Form 67 is procedural and not mandatory. The assessee had met the substantive conditions for claiming FTC under the DTAA and the Income Tax Act, and the procedural lapse of not filing Form 67 on time should not deprive the assessee of FTC.Treatment of Competing ArgumentsThe Tribunal considered the arguments of the Revenue, which supported the denial of FTC based on the non-filing of Form 67. However, the Tribunal rejected this argument, emphasizing that procedural requirements should not override substantive rights. The Tribunal also distinguished the case law cited by the CIT(A) as not applicable to the facts of this case.ConclusionsThe Tribunal concluded that the requirement to file Form 67 is directory and not mandatory. The assessee cannot be deprived of FTC merely due to a procedural lapse. The Tribunal set aside the order of the CIT(A) and directed the AO to allow the claim of FTC amounting to 1,52,019/- after necessary verification.3. SIGNIFICANT HOLDINGSPreserve Verbatim Quotes of Crucial Legal Reasoning'The intent of the legislature, as reflected in section 90 of the Act, is to provide relief from double taxation. The denial of Foreign Tax Credit solely on account of a procedural lapse would defeat this very purpose.'Core Principles EstablishedThe Tribunal established that procedural requirements, such as the filing of Form 67, should not override substantive rights under the DTAA and the Income Tax Act. The provisions of the DTAA, which allow for the set-off of foreign taxes, override domestic tax laws and procedural rules.Final Determinations on Each IssueThe Tribunal determined that the requirement of filing Form 67 is procedural and not mandatory. The assessee's appeal was allowed, and the AO was directed to allow the claim of FTC after necessary verification.