TaxTMI 
TaxTMI 
2025 (6) TMI 1376
X X X X Extracts X X X X
X X X X Extracts X X X X
.... filed beyond the due date of filing of the Return of Income under Section 139(1) of the Act. It is prayed that the position taken by the Ld. ADDL/JCIT(A) in her Order is contrary to the position taken by the Ld. Commissioner of Income-tax (Appeals) in Appellant's own case in AY 2019-20 (i.e. in the subsequent year) and this fact was also brought to the notice of the Ld. ADDL/JCIT(A) as can been seen from Page 3 of the Order of the Ld. ADDL/JCIT(A). It is also prayed that the Order of the Ld. ADDL/JCIT(A) is contrary to the following Judicial Pronouncements relied upon during the Appellate Proceedings before the Ld. ADDL/JCIT(A): * Decision of the Hon'ble High Court in the case of Duraiswamy Kumaraswamy Vs. The Principal Commissioner of Income Tax * Order of the Hon'ble ITAT in the case of Mr. Sanjay Patil vs. The Assessing Officer, Circle-3(2), Surat [ITA No. 189/SRT/2021] (Order in the case of another employee of the employer of the Appellant) * Order of Hon'ble ITAT in case of Mr. Nitin Prabhakar Dixit vs. DCIT, Panvel [ITA 798/PUN/2022] * Order of the Hon'ble ITAT in the case of Mr. Jerry Nirmal Francis vs. Assistant Director of Income Tax [ITA N....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to file the Revised Return of income for the year under appeal was 31 March 2019. Ground No.4: Non-grant of FTC is not a permissible adjustment/ no adjustment of a debatable issue can be made in the Intimation under Section 143(1) of the Act. On the facts and circumstances of the case and in law, the Ld. ADDL/JCIT(A) ought to have held that the non-grant of FTC of Rs. 8,15,869/- is not a permissible adjustment under Section 143(1) of the Act as no such adjustment relating to debatable issues can be made in the Intimation under Section 143(1) of the Act. It is prayed that the Order of the Ld. ADDL/JCIT(A) is contrary to the following judicial precedents relied upon during the Appellate Proceedings before the Ld. ADDL/JCIT(A): * Order of the Hon'ble ITAT in the case of City Manager Association vs. DCIT, CPC Bengaluru, (ITA No.1345/Ahd/2019); * Order of Hon'ble ITAT in the case of Paris Elysees India Private Limited vs. Deputy Commissioner of Income Tax, ITA No. 357/JPR/2022; * Decision of the Hon'ble Supreme Court in the case of ACIT vs. Rajesh Jhaveri Stock Brokers (P.) Ltd [2007] 291 ITR 500. It is, therefore, prayed that the Ld. JAO be directed to allow F....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... material available on record. At the outset we note that the learned CIT (A) has recorded the relevant facts and rejected the claim of the assessee in Para 7.4 as under: "7.4. The Appellant claimed FTC of Rs. 815869/- u/s.91 of the Act in original return of income filed on 09-08-2018. The Appellant had filed the Form 67 also on 15-03- 2019. The Appellant also filed a Revised Return of income on 20/03/2019. However, it is pertinent to note that the due date of filing of Return of income was 31.08.2018. The Appellant has 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 which is mandatory according to Rule 128(9) of the Rules. Therefore, the return of income was processed by Centralized Processing Centre (CPC) electronically and intimation u/s 143(1) of the Act on 20.03.2020 was passed disallowing the claim of FTC. The Appellant has not filed Form 67 before the time allowed under section 139(5) of the Act. The word "shall" has been used in the rule 128(9) therefore the provisions of rule 128 are mandatory in nature and not directory. From the above, it is apparent that unless there is an order condoning the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion of coordinate bench of this Tribunal in case of Ms.Brinda Ramakrishna v. ITO [2022] 135 taxmann.com 358/193 ITD 840 (Bang. - Trib.). 7. It's a trite 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. v. CIT [2021] 125 taxmann.com 42/281 Taxman 19/432 ITR 471. 8. We accordingly, hold that FTC cannot be denied to the assessee. Assessee is directed to file the relevant details/evidences in support of its claim. We thus remand this issue back to the Ld.AO to consider the claim of assessee in accordance with law, based on the verification carried out in respect of the supporting documents filed by assessee." 6. Thus, the Tribunal has held that provisions of DTAA overrides the provisions of Act and the Rule as held by the Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence vs. CIT 432 ITR 471. Similar view has been taken by the Delhi Bench of the Tribunal in the case of NICDC Neemrana Solar Power Ltd. v. Deputy Commissioner of Income tax (Supra) in Para 8 & 9 as under: "8. In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e thereof are the procedural formality which has been duly complied with, albeit with some delay. The provisions of sections 90, section 91 and DTAA does not provide for denial of exemption merely on account of delay in filing of certain forms/reports in contrast to other provisions of the Act such as 80AC, 801A(7), 10A(5) and 10B(5) where attendant conditions of compliance are mandatory. 9. In the factual backdrop, we notice that the Co-ordinate Bench of Tribunal in the case of Ms. Brinda Ramakrishna v. ITO [2022] 135 taxmann.com 358/193 ITD 840 (Bangalore - Trib.) in [ITA No.454/Bang/2021 order dated 17.11.2021] clearly held that filing of Form 67 is a directory requirement and having regard to the position that DTAA overrides the provisions of the Act and Rule cannot be contrary to the Act, the assessee is fully entitled to the FTC. The Tribunal also observed that issue of allowability of FTC is not a debatable issue and only one view is possible and thus seeking rectification under Section 154 could be resorted by the assessee. Similar view has been taken in 42 Hertz Software India (P.) Ltd. v. Asstt. CIT [2022] 139 taxmann.com 448 (Bangalore - Trib.) /[ITA No.29/Bang/ 2021 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d from Article 25(2)(a) of the DTAA that where a resident of India derives income which, in accordance with the provisions of the convention, may be taxed in the United States, India shall allow as a deduction from the tax on the income of the resident an amount equal to the income tax paid, paid in the United States, whether directly or by deduction. In view of this provision over riding the provisions of the Act, according to us, rule 128(9) of the Rules has to be read down in conformity thereof. Rule 128(9) of the Rules cannot be read in isolation. Rules must be read in the context of the Act and the DTAA impacting the rights, liabilities and disabilities of the parties. 9. With this view of the matter, we are of the considered opinion that the decisions relied upon by the assessee are applicable to the facts of the case on hand while respectfully following the same, we allow the appeal, and direct the Learned Assessing Officer to verify the details of the foreign tax paid by the assessee on the earnings at foreign source and take a view inconformity with the established law discussed above." 8. The Hon'ble Madras High Court in the case of Duraiswamy Kumaraswamy v. Princ....