TaxTMI 
TaxTMI 
2023 (4) TMI 729
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....ed CIT(A) has erred in sustaining the order passed under Section 154 of Income Tax Act 1961 by Assistant director of Income Tax CPC in denying the Foreign Tax Credit (FTC) because there was delay in filing Form 67 under Rule 128. 3. On the facts and in the circumstances of the case and in the law, the Learned CIT(A) ought to have considered that the minor technical lapse of delay in submitting form 67 as per Rule 128 cannot disentitle the assessee for Foreign Tax Credit and the same ought not to have been denied. 4. On the facts and circumstances of the case, the CIT(A), has not disputed the allowability of the foreign tax credit. He has only disallowed the credit on the ground that form 67 has not been filed on or before the due date of filing of return of income as per rule 128 (9) of the income tax rules, 1962. 5. On the facts and in the circumstances of the case and in the law, the Ld CIT(A) has erred in denying FTC to the assessee ignoring the provisions of the Income Tax Act and relevant clause of India Netherland DTAA. 5.1 The Learned CIT(A) has erred and failed to appreciate that subordinate legislation like rules cannot override the prov....
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.... relief in respect of foreign tax credit claimed by the assessee. In the appeal against the order passed under section 154 of the Act, learned CIT(A) vide impugned order dismissed the appeal filed by the assessee on this issue on the basis that Form No.67 was not filed by the assessee before the due date of furnishing the return of income under section 139(1) of the Act, as per the provisions of Rule 128(9) of the Income Tax Rules, 1962. Being aggrieved, the assessee is in appeal before us. 5. During the hearing, the learned Authorised Representative ('learned AR') submitted that in the present case, the assessee filed her return of income on 01/08/2019, i.e before the due date of filing the return of income. The assessee filed Form No. 67 on 09/02/2021, along with the relevant certificate/statement in order to claim the credit of tax paid in the Netherlands on salary earned by the assessee in the Netherlands as per provisions of section 90/90A of the Act. Learned AR also submitted that the provisions of section 90/91 of the Act are substantive provisions and provisions of Rule 128, cannot override the same. In support of its submission, reliance was placed upon the decision....
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....ia and the return for such assessment year has been furnished within the time specified under sub-section (1) or sub-section (4) of section 139:" 9. Thus with effect from 01/04/2022, the time period for furnishing statement in Form No. 67 has been extended till the end of the assessment year in which the corresponding income has been offered/assessed to tax and the return of such assessment year has been furnished within the time specified under 139(1) or 139(4) of the Act. 10. We find that the coordinate bench of the Tribunal in Sonakshi Sinha vs CIT, in ITA No. 1704/Mum./2022, vide order dated 08/09/2022, while dealing with a similar issue wherein the taxpayer filed Form No.67, after the due date for filing the return of income under section 139(1), observed as under: "012. We have carefully considered the rival contention and perused the orders of the lower authorities. Short question In this appeal is whether assessee is entitled to foreign tax credit even when form number 67 required to be filed according to the provisions of rule 128 (9) of the Income Tax Rules on or before the due date of filing of the return of income, not complied by the assessee, but same w....
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.... date which is beyond the due date of filing of the return of income. Further, the fact in the present case is quite distinct then the issue involved in the decision of the honourable Supreme Court in case of Wipro Ltd (supra). Here it is not the case of violation of any of the provisions of the act but of the rule, which does not provide for any consequence, if not complied with. Therefore, respectfully following the decisions of the coordinate bench on this issue, we hold the assessee is eligible for foreign tax credit, as she has filed form number 67 before completion of the assessment, though not in accordance with rule 128 (9) of The Income Tax Rules, which provided that such form shall be filed on or before the due date of filing of the return of income. Accordingly, ground number 2 of the appeal of the assessee is allowed." 11. We find that in another decision in Anuj Bhagwati vs DCIT, in ITAs No.1844 and 1845/Mum./2022, the coordinate bench of the Tribunal vide order dated 20/09/2022, while deciding a similar issue held that section 90/91 of the Act has not been amended insofar as grant of foreign tax credit is concerned and Rules cannot override the Act and therefore fi....