TaxTMI 
TaxTMI 
2026 (5) TMI 468
X X X X Extracts X X X X
X X X X Extracts X X X X
....3.2025 was passed by the Commissioner of Income Tax (Appeal)-NFAC, Delhi. 3. That the statutory time limit for filing the appeal before the Hon'ble Income Tax Appellate Tribunal, Delhi expired on 24,05.2025, and the appeal is being filed with a delay of 205 days. 4. That the appeal before the Hon'ble ITAT could not be filed within the prescribed time due to my severe medical condition and continuous treatment. The delay is neither intentional nor deliberate. 5. That I have been facing severe lumbar spine issues, including L4-L5 and L5-S1 instability. Because of this, I had extreme back pain, difficulty in walking, and could not carry out even normal routine work. 6. Due to the seriousness of the condition, I had to be admitted to BLK-Max Super Specialty Hospital, New Delhi, on the following occasions: * 03.04.2025 to 30.04.2025-Hospitalised for severe back pain and spine instability, * 12.07.2025 to 27.07.2025-Again hospitalized and underwent major 100 surgery (L4-L5. L5-51 MIS TLIF) under general anesthesia. After the surgery, multiple screws, rods, and implants were placed in my spine. I was on strict bed rest, physiot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y DTAA in India. 3. For both these years the assessee has challenged the action of Ld. CIT(A) through the following grounds: - Ground of appeal (AY 2017-18): "1. That the impugned appeal order is bad in law, illegal, and in violation of rudimentary principal of contemporary jurisprudence. 2. That the Hon'ble CIT(A)-NFAC has erred in law and on facts in confirming the action of the Assessing Officer who failed to adhere to the scope and mandate of the Limited Scrutiny proceedings. It is a settled principle, duly supported by CBDT Instructions governing CASS selection. The confirmation of such action by the Hon'ble CIT(A) renders the appellate order bad in law and unsustainable. 3. That the assessment order as well as the appellate order is vitiated due to violation of the principles of natural justice, as adequate and fair opportunity of hearing was not granted. 4. That the Hon'ble CIT(A) - NFAC, Delhi has erred in confirming the action of the Ld. Assessing Officer in denying Foreign Tax Credit (FTC) of Rs.42,19,483/-claimed under Sections 90/90A/91 of the Income-tax Act, 1961. 5. That the Hon'ble CIT(A)-NFAC, Delhi ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d, rendering the assessment and the appellate order erroneous and unsustainable. 5. That the Hon'ble CIT(A) -NFAC, Delhi has erred in law and on facts in holding that the assessee did not file required documents before the Ld. Assessing Officer, whereas the assessment order itself acknowledges submission of all details along with complete supporting documents was filed during assessment proceedings." 3.1 Before us the Ld. AR argued that both the authorities below have passed non-speaking orders and there is absolute denial of opportunity. It has also been stated that credit for taxes retained by several countries was unjustifiably denied. The Ld. AR also stated that they have filed considerable details with the return of income but the same was not considered by the authorities below for both the years. The Ld. AR requested for another chance to present the facts before the authorities below. It was also mentioned that for both the years Form 67 was duly filed before completion of assessment proceedings. However, it was admitted by the Ld. AR that the Form 67 may not have been filed within the due date as stipulated in the Act but were certainly filed before the ass....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me is assessed at Rs. 2,23,86,630/- which is the same as the income as per the return of income. Our attention was further drawn to column 14 of the computation sheet in which total income after deduction is shown at Rs. 2,49,43,470/- while in column 16 the aggregate income is shown at Rs. 2,23,86,630/-. The assessee has claimed the refund but the contrary demand was raised. The Ld. CIT(A) did not consider the ground relating to the enhanced income. An application filed u/s 154 of the Act filed was rejected. After analysis of the computation sheet, it was noted that the income from capital gains shown at Rs. 68,28,041/- was not correct which as per the final revised return at pages 22 to 27 of the paper book was shown at Rs. 'Nil' on account of short term capital gains earned outside India and set off of brought forward losses for AY 2016-17. It was submitted that the CIT(A) did not adjudicate this issue in the appeal. The Ld. DR vehemently supported the order of the Ld. CIT(A). 6. We have gone through the submissions made and also considered the facts of the come. Similar issue arose in the case of Jaspal Singh Bindra v. Dy. CIT [2025] 170 saxmann.com 80 (Kolkata - Trib.)....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... however, exceed that part of the income-tax (as computed before the deduction is given) which is attributable to the income which may be taxed in the United States." 9. Thus, Section 90 of the Act read with Article 25(2)(a) of the DTAA provides that tax paid in USA shall be allowed as a credit against the tax payable in India but limited to the proportion of Indian tax. Neither section 90 nor the DTAA provides that FTC shall be disallowed for noncompliance with any procedural requirement. Foreign Tax Credit is an assessor's vested right as per Article 25(2)(e) of the DTAA read with Section 90 and sane cannot be disallowed for non-compliance with procedural requirement as prescribed in the rules. 10. Further, we would like to mention that rule 128(9) provides that Form No. 67 should be filed on or before the due date of filing the return of income as prescribed u/s 139(1) of the Act. However, the rule nowhere provides that if the said Form No. 67 is not filed within the required time frame, the relief as sought by the assesses a's 90 of the Act would be denied it therefore evident that if the intention of the legislature were in deny the foreign tax credit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the facts of the case of the assessee in that care, the petitioner was resides of India and had filed Indian ITR and claimed benefit of FTC u/s 90/91 of the Act r.w. Article 24 of the Indian-Kenya DTAA. During the year, he had income of both Kenya and India but while filing the Indian ITR for the impugned assessment year 2019-20, the Form 67 prescribed in rule 128 of the rules for claiming FTC was inadvenently not uploaded along with the ITR which was uploaded un 02.02.2021. The return was processed on 26.03. 2021, however, the credit of FTC was not given effect to and the request made to the CPC to give effect to the FTC was not accepted and intimation along with notices of demand was received. The assessee also could not succeed with the rectification application filed and approached the CIT u/s 264 of the Act and at the same time filed a writ petition before the Hon'ble Madras High Court. It was stated by the respondent-department that rule 128 is mandatory and cannot be considered as directory in nature. The petitioner referred to the judgment of the Hon'ble Supreme Court is the case of G.M. Knitting Industries (P) Ltd. (supra). The Hon'ble High Court allowed the Writ Pet....