TaxTMI 
TaxTMI 
2025 (7) TMI 181
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....ion u/s 154 of the Act and the same has also been rejected by the AO(CPC). 3. Aggrieved by the assessment order, the assessee preferred an appeal before the Ld.CIT(A). Before the Ld.CIT(A), the assessee contended that he has filed return of income on or before the due date provided u/s 139(1) of the Act and also filed revised return within the due date provided u/s 139(5) of the Act. The assessee filed Form 67 on 01.03.2021, before the AO passed assessment order on 24.12.2021. Therefore, he submitted that when the assessee has filed relevant Form 67 before the AO passed assessment order for claiming FTC, the AO ought to have allowed the credit for FTC. The Ld.CIT(A), after considering the submissions of the assessee and also taking note of Rule 128(9) of I.T. Rules, 1962, rejected the explanation of the assessee and upheld the additions made by the AO, by rejecting credit for FTC, on the ground that, in order to claim credit for FTC, the assessee shall furnish relevant statement in Form 67 on or before the due date for filing return of income u/s 139(1). Since the assessee has filed relevant Form 67 after the due date provided u/s 139(1), the AO has rightly denied credit for FTC....
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....led 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 delay in filing Form No. 67 by the PCIT under Section 119(2)(b), such Form No.67 can't be taken into consideration and the relief u/s. 91 cannot be allowed by the Appellate Authority even if other conditions are fulfilled. ln view of the above, the appellant is not e....
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....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 the case of Sumedha Arora v. Income - Tax Officer [2023] 154 taxmann.com 535 (Delhi - Trib.) the Co-ordinate bench held as under: "7. As stated, section 90 of the Act provides that Government of India can enter into agr....
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....y 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 order dated 7th March, 2022). A reference is made to another Co-ordinate Bench decision in the case of Vinodkumar Lakshmipathi v. CIT (Appeals) NFAC [2022] 145 taxmann.com 235 (Bangalore - Trib.), [ITA No.680/....
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....a 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. Principal Commissioner of Income-tax, reported in 460 ITR 615 has also held in para 11 to 13 as under: "11. The law laid down by the Hon'ble Apex Court in G.M.....