TaxTMI 
TaxTMI 
TaxTMI 
2025 (2) TMI 33
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....ome under the head from salary only. During the year under consideration, assessee worked with Credit Suisse Business Analytics group at USA. He deputed to the Indian office of the company at Credit Suisse Business Analytics (India) Pvt. Ltd., and he joined at Indian office on 25.09.2021. As he resided in India for more than 182 days, therefore as per Income Tax act he become the tax resident and accordingly he filed the return declaring the global income (Income earned in India as well as Outside India) in the Indian ITR as per Income Tax Act 1961. He received a salary of Rs. 35,58,670/- from Indian Company and Rs. 42,89,595/- from Foreign company serving in that country. As the Indian Government has signed Treaty/ for avoidance of Double taxation with USA, therefore, the assessee claimed the relief u/s 90/90A. He claimed relief of Rs. 486,406/-. The Ld. AO, CPC rejected the claim of relief being claimed under Section 90 and raised a demand of Rs. 5,50,300/- vide intimation order u/s 143(1)(a) dated 26. 10.2022. The assessee filed an application for rectification u/s 154 as non-allowance of relief was mistake apparent on record. The CPC has not considered the facts of the case and....
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....r statement specifying the nature of income and the amount of tax deducted therefrom or paid by the assessee- (a) from the tax authority of the country or the specified territory outside India: or (b) from the person responsible for deduction of such tax: or (c) signed by the assessee Provided that the statement furnished by the assessee in clause (c) shall be valid if it is accompanied by- (A) an acknowledgement of online payment or bank counter foil or challan for payment of tax where the payment has been made by the assessee (B) proof of deduction where the tax has been deducted. (9) The statement in Form No.67 referred to in clause (1) of sub-rule (8) and the certificate or the statement referred to in clause (ii) of sub-rule (8) shall be furnished on or before the due date specified for furnishing the return of income under subsection (1) of section 139. in the manner specified for furnishing such return of income." 4.5 Therefore, as per Rule 128(9) of the I.T. Rules, 1963, the appellant is required to furnish Form No. 67 well within the due date specified for furnishing the return of income under sub-section (1) of Section 139 of the Act. In the case of the ap....
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....to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law without deviating from the prescribed procedure............." 4.8 The Hon'ble Bombay High Court in the case of Commissioner of Income-tax v. Shivanand Electronics 209 ITR 63 has held that:- "When the Legislature casts a duty on the assessee claiming certain benefit, to comply with requirements which are associated with such benefit, the assessee cannot get the benefit without doing his part of the duty. He cannot be allowed to say that it was for the ITO to ask him to do so. If the assessee does not do his part of the statutory duty, the ITO may proceed to decide the allowability or otherwise of the relief on the basis of the facts and material available before him." 4.9 Recently in the case of Union of India & Ors. v. Mahendra Singh (CA No. 4807 of 2022), it was held by the Hon'ble Court that since the advertisement contemplated the manner of filling up of the application form and also the attempting of the answer sheets, it has to be done in the manner so prescribed. Therefore, the reasoning given by the delay in filing Form 67 does....
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....redit. Hence, no interference is called for in the action of the AO in disallowing the claim of Foreign Tax Credit.". Submission:- 1. As already mention in the facts that during the year under consideration assessee received income in India as well as from outside India. He was in India from 25.09.2021. He received salary of Rs. 42,89,595/- by providing service outside India. He paid tax on this salary as per Income Tax Laws of USA Country. Copy of evidence of paying Tax at that country is enclosed at PB 11-13. 2. As he resided more than 182 days in India, thus as per section 6 of Income Tax act he is taxable as Indian Resident in India, and he have to declare the global income being accrue or earned in India as well as in the whole world. 3. The assessee followed the same and declared the global income of salary being received in India and salary being received outside India (while serving outside India), in ITR form. He filed Income Tax Return declaring income of Rs. Rs. 81,37,160/-. As there is a Treaty being signed between Indian Government as well as USA Government, the assessee claimed the benefit of that D'TAA, u/s 90/90A of Income Tax Act. He claimed relief of R....
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....ation of cases of such evasion or avoidance, or (d) For recovery of income-tax under this Act and under the corresponding law in force in that country or specified territory, as the case maybe, and may, by notification in the Official Gazette, make such provisions as may be necessary for implementing the agreement. (2) Where the Central Government has entered into an agreement with the Government of any country outside India or specified territory outside India, as the case may be, under sub-section (1) for granting relief of tax, or as the case may be, avoidance of double taxation, then, in relation to the assessee to whom such agreement applies, the provisions of this Act shall apply to the extent they are more beneficial to that assessee. (24) not withstanding anything contained in sub-section (2), the provisions of Chapter X-A of the Act shall apply to the assessee even if such provisions are not beneficial to him. (3) Any term used but not defined in this Act or in the agreement referred to in sub- section (1) shall, unless the context otherwise requires, and is not inconsistent with the provisions of this Act or the agreement, have the same meaning as assigned to it i....
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....as well as state taxes paid by him u/s 91 of the Act b. Wipro Ltd vs. Deputy Commissioner of Income Tax (2016) 3821TR179 (Karnataka High Court) where in the court has held that even in the absence of agreement u/s 90 of the act, the benefit conferred under section 91of the act is to be extended to the income tax paid in foreign jurisdiction. Further the Hon'ble ITAT Delhi Bench has also allowed the benefit of section 90/91in the below mentioned cases following the judgment passed by the bench itself. DCIT vs. Tata Sons Ltd (2011)135TTJ-1 (ii) Tata Sons Ltd vs. Deputy Commissioner of Income Tax in ITA No: 4978/ME/2004dated23/02/2011 in Para number 5 (iii) Rajeev 1 Modi vs. The Deputy Commissioner of Income Tax, in ITA No: 1285/AHD/2014 7. It is further submitted that neither section 90 nor DTAA provides that FTC shall be disallowed for non-compliance with any procedural requirements. Since FTC is assessee's vested right as per Article 22(2) of the DTAA read with section 90 and thus same cannot be disallowed for non-compliance of procedural requirement that is prescribed in the Rules. The said rule 128(9) provides that Form 67 should be filed on or before the due ....
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.... Appeal of the assessee is thus allowed. Prayer: Considering the provisions of DTAA and Section 90, clause no 16, and judicial precedents supporting the position of assessee, the income received outside India on which tax also paid at origin Country the credit of said tax paid out side India should be allowed as per IT act as well as per DTAA. Thus, the relief rejected by the CPC and not allowed by CIT(A) is against the natural justice and it is therefore requested that kindly allow the credit of Foreign Tax paid by the assessee and oblige." 6. The ld. AR of the assessee filed on a detailed paper book in support of the contention so raised in the written submission and the index of the document submitted are as under:- S. No. Particulars Page No. 1. Reply submitted before CIT appeal 1-7 2. ITR Form 8 3. Form 67 9-10 4. Acknowledgment of Foreign Tax payment 11-12 5. Case laws i. Shri Ritesh Kumar Garg vs. ITO 4, ITAT-Jaipur Bench 14-26 ii. Aditya Khanna vs. ITO-ITAT Delhi 27-49 iii. Anuj Bhagwati Mumbai vs. DCIT Circle-ITAT Mumbai 50-55 iv. Brinda Rama Krishna vs. ITO-ITAT Bangalore 56-64 v. Nirmala Murli Relwani vs Asstt. Director of Income....
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.... for relief under section 90 of the Income Tax Act, 1961 to the assessee. The said relief was denied by the revenue authorities on the ground that the return for the year under consideration was filed by the assessee on 08.09.2021. However, the form 67 was filed on 28.12.2022 and not along with the return of income filed on 08.09.2021. Since according to revenue the said form 67 was filed after the due date of filing the return of income for the year under consideration, therefore, the assessee was rightly found not eligible for the credit of that amount. 6. We find that the case of assessee is fully covered by the recent decision of the ITAT Jaipur Bench, adjudicated exactly on similar issue in the case of Ritesh Kumar Garg vs. ITO in ITA No. 261/JP/2022 dated 15.09.2022, wherein the claim of Foreign Tax Credit (FTC) was allowed by observing in para 5.1 to 6 as under :- "5.1. After having meticulously gone through the facts of the present case, we are of the view that there is no dispute that assessee is entitled to claim relief under section 90 of the IT Act but the disallowance was confirmed on the sole ground that the relevant form 67 prescribed under section 128(8) was not....
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.... this context. Therefore, Rule 128 is a procedural provision and not a mandatory provision. The said rule 128(9) provides that Form 67 should be filed on or before the due date of filing the return of income as prescribed under section 139(1) of the Act. However, the said Rule nowhere provides that if the said Form 67 is not filed within the above stated time frame, the relief as sought by the assessee under section 90 of the Act would be denied. In case the intention of the Act or Rule was to deny the FTC, then in that eventuality either the Act or the Rules would have specifically provided that the FTC would be disallowed if the assessee does not file Form 67 within the due date prescribed under section 139(1) of the Act. Thus filing of Form 67, in my view, is a procedural/directory requirement and is not a mandatory requirement. Therefore, violation of procedural norms does not extinguish the substantive right of claiming the credit of FTC. While reaching to this conclusion, we draw strength from the decision of Hon'ble Supreme Court of India in the case of Mangalore Chemicals & Fertilizers Ltd. vs. Deputy Commissioner, (1992) Supp (1) Supreme Court Cases 21 wherein the Hon'ble ....