2026 (7) TMI 1874

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....evant Assessment Year is 2021-22. 2. The solitary issue that is raised is whether the First Appellate Authority (FAA) had erred in law and on facts in not granting Foreign Tax Credit (FTC) of Rs. 14,05,515/-. 3. Brief facts of the case are as follows: The assessee is a resident of India for the relevant assessment year. During the relevant assessment year, the assessee was temporarily employed in United Kingdon with "Cognizant Worldwide Ltd.". For the assessment year 2021-22, return of income was filed on 05.10.2021 admitting total income of Rs. 60,41,480/-. The assessee had claimed Foreign Tax Credit (FTC) of Rs. 14,05,515/- u/s. 90 of the Act. The return of income was processed u/s. 143(1) of the Act on 13.10.2022. In the said intim....

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....ed 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 04.03.2024 was passed disallowing the claim of FTC. 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 67 by the PCIT under Section 119(2)(b), such Form No. 67 can't be taken into consideration and the relief u/s. 90/90A cannot be allowed by the Appellate Authority even if other conditions are fulfilled. 5.8 In view of the above, the appel....

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....load Form 67 within due date of filing of the return, it is only a technical or venial breach. It was further held by the Hon'ble Delhi High Court that the petitioner has substantial right of getting FTC and withholding the same is without any authority and would tantamount to unjust enrichment. The Hon'ble Court in the said case directed the AO to examine the Form 67 (which was admittedly filed subsequent to the intimation issued u/s. 143(1) of the Act) and pass a speaking order in accordance with law. 9. The Mumbai Bench of the Tribunal in the case of Tabassum Abdulla Inamdar, (supra) had held that filing of Form 67 within the due date prescribed is not mandatory but only directory requirement. It was further held by the Mumbai Bench o....

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....s no longer res integra as held by various Coordinate Benches of ITAT, few of which are listed below: i. Sonakshi Sinha vs. CIT [2022] 142 taxmann.com 414 (Mum) ii. Deepak Shimoga Parmaraju vs. ADIT [2024] 162 taxmann.com 96 (Bang) iii. Brinda Ramakrishna vs. ITO [2022] 135 taxmann.com 358 (Bang) 6. Considering the factual matrix on record as well as pending application before the ld. JAO u/s. 154, and the judicial pronouncements listed above read with Rule 128 of the Rules, we remit the matter back to the file of ld. JAO for a limited purpose of verification of the records and allow the credit for foreign taxes paid by the assessee as duly claimed in her return along with Form 67 already on record. Accor....