TaxTMI 
TaxTMI 
2024 (11) TMI 24
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....809 days. 3. During the appellate proceedings the assessee submitted the reasons for delay in filing appeal which is as under:- " "The intimation u/s 143(1) was received on 28-Mar-2019. The 30 days limitation for filing the appeal ends on 27-Apr-2019. The issue in dispute leading to disputed tax demand of Rs. 7,27,4931- is disallowance of foreign tax credit under section 90 of the IT Act, 1961. Under bona fide belief that this demand is a matter of rectification of mistake apparent from record under section 154 of the IT Act, 1961, I made the following attempts at rectification: 1. Online I have Ned rectification return as on 04-Apr-2019, rejected by CPC with no communication as to the reasons for rejections. i found out about the rejection in Sep-2023 on receipt of communication to pay the demand. 2. Aggrieved, one more rectification return was filed on 11- Sep-2023 which also got rejected by the department as on 11- Sep-2023. Take note that the rejection is on the same day, clearly evident that there has been no application of mind. The reason for rejection was rectification rights are transferred to AO and we should contact the AO. Whereas the fact ....
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.... tax credit (FTC) which was rejected by the CPC in Sept. 2023 without giving any reason. Again the assessee filed another rectification petition on 11.09.2023 which was also rejected. The issue was assigned to the AO and assessee contacted the AO and the matter has not been decided. Even till 08.04.2024 the rectification rights continued with the CPC. Therefore he requested that the delay may be condoned and the assessee should be allowed FTC claim of Rs. 7,27,493. The ld. AR relied on the decisions in ITA No.454/Bang/2024 for AY 2018-19 and Hertz Software India Pvt. Ltd. 139 taxmann.com 448 (Bang. Trib.). 6. The ld. DR relied on the order of lower authorities and submitted that assessee should have filed Form 67 for claiming FTC within the due date which was filed beyond due date. As per Rule 128(9) assessee was required to file return u/s. 139(1) and the ld. DR relied on the order in the case of Ms. Brinda RamaKrishna [2022] 135 taxamann.com 358 (Bang. Trib). Before the ld. FAA the assessee was unable to give reasonable cause for delay in filling of appeal. 7. Considering the rival submissions, we note that the ld. FAA has not condoned the delay in filing appeal before him ....
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....te that the assessee is a salaried employee and employed with Tessolve Semiconductor Pvt. Ltd. and Tessolve Inc. during the year and earned income from salary, house property, capital gains, dividend and interest income. The assessee claimed foreign tax credit of Rs. 7,27,493 which was denied by the CPC. The assessee filed return of income on 28.09.2017 and due date was 05.08.2017. Form 67 was also filed belatedly on 04.04.2019. We note from the submission of the assessee, he had sufficient reason for not filing Form 67 within time. Similar issue has been decided by coordinate Bench of the Tribunal in ITA No.34/Bang/2024 dated 7.3.2024 and it is held as under:- "7. We have heard the rival submissions and perused the material on record. The various orders of the Tribunal (cited supra), had categorically held that the requirement of filing Form 67 within the due date prescribed u/s. 139(1) of the Act cannot be treated as mandatory. Further, it was held that it is to be treated as directory in nature. This is because Rule 128(9) of the Income-tax Rules, 1962 does not provide for disallowance of FTC in case of delay in filing Form 67. On identical facts, the Ahmedabad Bench of....
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....andatory; the procedural law is always subservient to and is in aid to justice. It was submitted that filing of Form 67 as per the provisions of section 90 read with rule 128(9) is a procedural law and should not control the claim of FTC. 12. It was further submitted that even in the context of 80-IA(7), 10A(5) etc, wherein there is specific provision for disallowance of deduction/exemption if audit report is not filed along with the return, various High Courts have taken a view that filing of audit report is directory and not mandatory. Reliance in this regard was placed on the following cases: ♦ CIT v. Axis Computers (India) (P.) Ltd. [2009] 178 Taxman 143 (Delhi) ♦ PCIT, Kanpur v. Surya Merchants Ltd. [2016] 72 taxmann.com 16 (Allahabad) ♦ CIT, Central Circle v. American Data Solutions India (P.) Ltd [2014] 45 taxmann.com 379 (Karnataka) ♦ CIT-II v. Mantec Consultants (P.) Ltd. [2009] 178 Taxman 429 (Delhi) ♦ CIT v. ACE Multitaxes Systems (P.) Ltd [2009] 317 ITR 207 (Karnataka). 13. It was submitted that as per the provisions of section 90(2) of the Act, where the Central Government of I....