TaxTMI 
TaxTMI 
2024 (4) TMI 1351
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....nt second appeal under section 253 of the Income Tax Act, 1961, before us against the aforesaid order dt. 28/11/2023. Factual Matrix 3. The Assessee had for the A.Y. 2020-21 had filed return of income under section 139(1)of the Income Tax Act, 1961 on 21/09/2020 under acknowledgment no. 569299010210920 declaring the total income as Rs. 1,65,39,120/- wherein total tax paid is shown as Rs. 4,93,295/-. 4. In computation of total income (revised) an amount of Rs. 7,70,863/- is claimed as eligible deductible under section 90/91 of the Income Tax Act, 1961 as amended from time to time. In support of such eligible deductible claim under section 90/91 of the Income Tax Act, 1961, the reliance is placed on Form No. 67 ( Rule 128) which is provided for under the Rule 128 of the Income Tax Rules which is titled as [" statement of income from a Country or specified territory outside India and Foreign Tax Credit"] dt. 18/10/2021. In the said Form 67 in Column 5 name of the Country is shown as:- " U.S.A", source of income as :- " Others", specific details as:- Shares of Foreign entity, income from outside India as:- Rs. 34,19,156/-. Foreign Tax Credit claimed as :-Rs. 7,70,863/-, tax pa....
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....en filed before the time limit specified u/s. 139(1). A notice was issued to the Appellant to establish the fact on filing of form no.67 to claim relief of taxes u/s. 90. In response, to the same, the Appellant, vide letter dated 07/11/2023 submitted that the relief u/s. 90 cannot be denied for the belated filing of form 67 and relied on the decision of ITAT, Chandigarh Bench rendered in ITA No.740/Chandi/2022. 4.2 The facts of the case and the compliance to the rules laid down u/r. 129(8) of the Income tax Rules, 1962 are carefully considered. It is an admitted fact that Form no.67 has not been filed by the Appellant before the time limit specified u/s. 139(1) for AY 2020-21 and such omission is attempted to be justified by the Appellant on the pretext that filing of Form No.67 is not mandatory relying on certain judgements of the Tribunal. With due respect to the judicial authorities who had rendered in favour of the tax payers like that of the Appellant, it is brought on record that filing of Form no.67 is mandatory to claim the benefit of Foreign TaxCredit. 4.3 Taxes are paid in an alien nation, the particulars of which can never be verified by the Income tax ....
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....the case and is, thus, untenable." Record of physical personal hearing 8. The physical personal hearing before the Tribunal took place on 16/04/2024 when both the parties appeared before us and were heard at length on merits of their respective cases. Paper book for physical personal hearing held on 16/04//2024 which was on record on the files of the Tribunal was minutely perused by us and so also all the papers and proceedings of the case including that of CIT(A) and AO under section 143(1) of the Income Tax Act, 1961. 9. During the course of the hearing the Ld. Counsel for the Assessee Shri Tejmohan Singh repeated and reiterated the facts of the case and grounds of appeal on the basis of material available on the record including the paper book. He vehemently contended that impugned order of Ld. CIT(A) dt. 28/11/2023 is bad in law, illegal, arbitrary and ought to be set aside by this Hon'ble Tribunal as Form No. 67 and its accompaniments were duly uploaded on the portal on 18/10/2021claiming FTC of Rs. 7,70,863/- and whereas order of assessment / intimation under section 143 (1) is dt.24/12/2021. It was therefore incumbent upon the AO including CIT(A) to have considered ....
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....see then brought to our notice that the requirement of Rule 128 (9) of Income Tax Rules, 1962 are directory in nature and are not mandatory in character. He then invited our attention to the following judgments: * BachaspatimayumUmakanta Sharma Vs. DCIT in ITA No. 740/Chd/2022 dt. 18/04/2023 * Ms. Brinda Rama Krishna Vs. ITO reported in 193 ITD 840 (BangloreTrib) * 42 Hertz Software India (P) Ltd. Vs. ACIT reported in 139 taxmann.com 448 (Bangalore Trib) * Sonakshi Sinha Vs. CIT(A) reported in 142 taxmann.com 414 (Mumbai Trib) * AnujBhagwatiVs. DCIT in ITA No. 1844/Mum/2022 dt. 20/09/2022 * NirmalaMurliRelwaniVs. ADIT in ITA No. 2094/Mum/2022 dt. 01/12/2022 * DuraiswamyKumaraswamy Vs. PCIT reported in 460 ITR 615 (Madras) 10.1 The Ld. Counsel for the Assessee also assailed the impugned order of the Ld. CIT (A) dt. 28/11/2023 on the ground that by the notice under section 250 of the Act, dt. 23/10/2023 of Ld. CIT (A), the assessee was called upon to file counter arguments and grant of opportunity to submit objections which read as under: ANNEXURE "Counter Arguments and grant of opportunity to submit object....
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.... 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 sub-section (1) of section 139, in the manner specified for furnishing such return of income. We find that coordinate bench in 42 Hertz Software India (P.) Ltd v. ACIT [2022] 139 taxmann.com 448 (Bangalore - Trib.) wherein following its earlier order in the case of Ms. Brinda Rama Krishna v. ITO [2022] 135 taxmann.com 358 (Bang- Trib) it was held that "one of the requirements of Rule128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns and that this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No. 67. Same view is also taken by a coordinate division bench in VinodkumarLakshmipathi V CIT(A) NFAC ITA No.680/Bang/2022 06.09.2022. It is well settled that while laying down a particular procedure, if no negative or adverse consequences are contemplated for non-adherence to such procedure, the relevant provision is normally not taken to be mandatory and is considere....
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....ts of the cases cited at bar by the Ld. Counsel for the Assessee. 12.1 The Ld. Counsel finally placed reliance on the judgments of Hon'ble Madras High Court in case of DuraiswamyKumaraswamyVs. PCIT (supra) wherein in para 11, 12 & 13 it is held as follows: "11. The law laid down by the Hon'ble Apex Court in Commissioner of Income-Tax, Maharashtra v. G.M.Knitting Industries (P) Limited in Civil Appeal Nos.10782 of 2013 and 4048 of 2014 dated 24.06.2015, which was referred above, would be squarely applicable to the present case. In the present case, the returns were filed without FTC, however the same was filed before passing of the final assessment order. The filing of FTC in terms of the Rule 128 is only directory in nature. The rule is only for the implementation of the provisions of the Act and it will always be directory in nature. This is what the Hon'ble Supreme Court had held in the above cases when the returns were filed without furnishing Form 3AA and the same can be filed the subsequent to the passing of assessment order. 12. Further, in the present case, the intimation under Section 143(1) was issued on 26.03.2021, but the FTC was filed on 02.....
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....gard. We state that Rule 128(9) w.e.f 01/04/2022 reads as under: "(9) The statement in Form No. 67 referred to in clause (i) 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 end of the assessment year relevant to the previous year in which the income referred to in sub-rule (1) has been offered to tax or assessed to tax in India and the return for such assessment year has been furnished within the time specified under sub-section (1) or sub-section (4) of section 139: Provided that where the return has been furnished under sub-section (8A) of section 139, the statement in Form No. 67 referred to in clause (i) of sub-rule (8) and the certificate or the statement referred to in clause (ii) of sub-rule (8) to the extent it relates to the income included in the updated return, shall be furnished on or before the date on which such return is furnished." (emphasis supplied) Whereas prior to 01/04/2022 Rule 128(9) read as under: "(9) The statement in Form No. 67 referred to in clause (i) of sub-rule (8) and the certificate or the statement referred to in clause (ii) of sub-r....