2023 (5) TMI 271

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....ITR self. She received intimation u/s 143(1) on-line dated 15.03.2021, after that she check this intimation and found a demand created by department. After that she meet proper income tax officer and discussed they told, Please submitted rectification u/s 154 after that she submitted rectification. The rectification processed date 01.07.2022 and our rectification request is rejected due to not furnish Form-67.This is a genuine reason for delay submitted of CIT(A) appeal. 4) That time due to corona environment our supreme court extended the limitation time period dated 28 February 2022. She afraid due to corona, Because that time environment was not right for meet any person. This is next reason for delay submitted of CIT(A), So this dismissed appeal order is bad-in-eyes of the law and void-ab-initio. 5) That the dismissed appeal order is bad in the eyes of law and is liable to be set aside. 6) That the assessee has right to add, delete and modify grounds at the time of hearing. Relief Claimed: It is most humbly prayed that a) To quash the order passed by the assessing officer and delete the demand of tax, interest and penalty. ....

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....order, demand order, computation of tax. CPC without provide any opportunity for furnishing form 67, processed our ITR. This is against nature of justice. This is bad-in-eyes of the law and fact. 5). That the appellant is a cooperative nature and submitted ITR with in time, to lack of knowledge of Income tax Act appellant did not furnish form 67. After receiving intimation order appellant met assessing officer and provide necessary information regarding this case. Than Income-Tax officer advised for submit rectification u/s 154. 6). That the appellant submitted rectification u/s 154 and claimed relief u/s 90/91 of Rs.330400.00 DTAA. The rectification processed dated 01.07.2022 and disallowed our claim on the ground, that the appellant failed to furnish form 67 on or before the due date of furnishing the return of Income as prescribed u/s 139(1) of the act and suggested to file appeal against intimation order 143(1) to CIT(A). 7). That the appellant submitted a appeal to CIT(A) vide ack. no. 416819290080822 dated 08.08.2022. Our learnt officer dismissed appeal without given any notice for haring, without provide any adequate opportunity of being heard to t....

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....by set aside and it is held that the assessee shall not be entitled to the benefit under Section 10B (8) of the IT Act on noncompliance of the twin conditions as provided under Section 10B (8) of the IT Act, as observed hereinabove. The present Appeal is accordingly allowed." As per my view and accordingly above case is belong to section 10B of Income Tax Act. As per section 10B(8) is override only this section.(For your reference copy of 10B and above case is attached). 10B(8) Notwithstanding anything contained in the foregoing provisions of this section, where the assessee, before the due date for furnishing the return of income under sub-section (1) of section 139, furnishes to the Assessing Officer declaration in writing that the provisions of this section may not be made applicable to him, the provisions of this section shall not apply to him for any of the relevant assessment year. 11) That the 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 provision of the income tax Act, the appellant has vested right to claim the FTC under the tax trea....

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....n he is entitled for Foreign Tax Credit merely because Form No.67 could not be filed. In this regard, the assessee has placed reliance upon the decisions of Co-ordinate Benches of the Tribunal and the judgement of Hon'ble Supreme Court in the case of PCIT vs M/s Wipro Limited in Civil Appeal No.1449 of 2022 order dated 11.07.2022. It is contended that Ld.CIT(A) has submitted that reliance is misplaced. The assessee has placed reliance on the judgement of Hon'ble Supreme Court rendered in the case of Engineering Analysis Centre of Excellence (P.) Ltd. reported in (2021) 432 ITR 471 (SC). The Co-ordinate Bench of the Tribunal in ITA No.29/Bang/2021 in the case of 42 Hertz Software India Pvt. Ltd. vs ACIT order dated 07.03.2022 wherein the Tribunal has observed as under:- 6. "There is no dispute that the assessee is entitled to claim FTC. On perusal of provisions of Rule 128(8) & (9), it is clear that, one of the requirements of Rule 128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns. In our view, this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for di....