TaxTMI 
TaxTMI 
2022 (9) TMI 1397
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the sake of convenience these appeals are clubbed, heard and consolidated order is passed. We shall take up ITA No. 1844/M/22 for assessment year 2018-19 as the lead case and the facts narrated. The assessee has raised the following grounds of appeal. i) On the facts and in the circumstances of the case and in law, initially under Section 143(1) the CPC has failed to provide the Appellant the relief of tax under Section 90 (erroneously mentioned as relief under Section. 91 of the Act in the Return of Income instead of relief under Section. 90 of the Act) of the Act of Rs. 14,22,129/-. The relief was denied on account of an inadvertent mistake in complying with the procedural requirement of filing of Form No. 67 with the Retu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....losed and also tax of Rs. 14,22,129/- paid in USA was claimed as Foreign Tax Credit(FTC). The assessee is eligible to claim Tax Relief U/sec 90 of the Act as per Double Taxation Avoidance and Agreement (DTAA) with the government of USA and the return of income was processed under section 143(1) of the Act on 21.03.2020. Subsequently, the case was selected for scrutiny and notice under section 143(2) of the Act was issued. Whereas, the Assessing Officer (A.O.) based on the submissions and information has accepted the income as per the return of income filed by the assessee but the no relief was granted under Section 90 of the Act in respect of the Foreign Tax Credit(FTC) and assessed the total income of Rs.. 2,07,95,030/- and passed the orde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g the eligibility of FTC claim and also there is no power to condone the delay in filling the Form No. 67 and the CIT(A) has confirmed the action of A.O and dismissed the appeal. We find in respect of foreign tax credit (FTC), the assessee is required to file Form.no. 67 with details of the statement of income from a country or specified territory outside India and foreign tax credit and further rule 128 of the income tax rules prescribes the procedure for claiming the tax foreign tax credit. 6. We find under Section 90 of the income tax Act allows double taxation relief in respect of agreements with foreign countries or specified territories and also Section 91 o the I T Act deals with the taxability of income where the countries which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No. 67. This view is fortified by the decision of coordinate bench of this Tribunal in case of Ms. Brinda Kumar Krishna vs. ITO in IT A No. 454/Bang/2021 by order dated 17/11/2021. 7. It's a tribe law that DTAA overrides 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. reported in (2021) 432 ITR 471. 8. We accordingly, hold that FTC cannot be denied to the assessee. Assessee is directed to file the relevant details/evidence in support of its claim. We thus remand this iss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Paper Book 2- Para 25 & 26) • CBDT Circular No. 333 dated 02.04.82 137 ITR (St.) It was submitted that when there is no condition prescribed in DTAA that the FTC can be disallowed for non-compliance of any procedural provision. As the provisions of DTAA override the provisions of the Act, the Assessee has vested right to claim the FTC under the tax treaty, the same cannot be disallowed for mere delay in compliance of a procedural provision. 14. The learned Departmental Representative reiterated the stand of the Revenue that rule 128(9) of the Rues, is mandatory and hence the Revenue authorities were justified in refusing to give FTC. He also submitted that the issue was debatable and cannot be subject matte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ces, proceedings under Section 154 of the Act can be resorted to. Even otherwise the ground on which the Revenue authorities rejected the Assessee's application under Section 154 of the Act was not on the ground that the issue was debatable but on merits. I therefore do not agree with the submission of the learned Departmental Representative in this regard. 17. In the result, the appeal is allowed. 8. We considering the facts, circumstances provisions of the Act and judicial decisions are of the opinion that there is no amendment on these aspects in the Section 90 of the Act and the Rules cannot override the Act and therefore the filing of Form.No 67 is not mandatory but it is directory. Accordingly, We restore the disputed issu....