TaxTMI 
TaxTMI 
2026 (10) TMI 1322
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....m No. 67 had not been filed within the prescribed time and, therefore, advised him to accept the tax demand. Subsequently, the assessee consulted a new tax consultant, who advised him that Form No. 67 had been duly filed and that the matter could be challenged before the Tribunal. On receiving such advice, the assessee filed the present appeal. It was submitted that the delay occurred due to earlier professional advice and the search for a new consultant. Therefore, the delay was neither deliberate nor intentional. The assessee, therefore, requested that the delay of 36 days be condoned. In support of the request, the assessee relied upon the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji (1987) 167 ITR 471 & Others and other judicial precedents. 3. The Ld. DR, on the contrary, vehemently opposed the condonation of delay and submitted that the assessee has not shown sufficient cause for filing the appeal beyond the prescribed time. The Ld. DRP therefore argued that the delay should not be condoned. 4. We have considered the rival submissions of both the parties and perused the application for condonation of delay along with the....
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....is capable of removing injustice and is expected to do so. 4.2 In the present case, the delay is only of 36 days. The explanation furnished by the assessee is supported by a duly sworn affidavit. The Revenue has not brought any material on record to disprove the averments made therein. We also find no material to suggest that the delay was intentional or due to any mala fide reason. The assessee acted upon the professional advice received by him and approached the Tribunal after obtaining subsequent advice regarding the availability of remedy. In these circumstances and keeping in view the principles laid down by the Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji & Others (supra), we are of the view that the assessee had sufficient cause for not filing the appeal within the prescribed period. Accordingly, in the interest of substantial justice, we condone the delay of 36 days and admit the appeal for adjudication on merits. 5. In the memo of appeal, the assessee has raised 12 grounds of appeal which revolve around the disallowance of foreign tax credit claimed under section 90 of the Act to the tune of Rs. 3,17,536/- only. 6. The brief ....
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....ee on 27.01.2023, which was beyond the prescribed due date. He held that although relief from double taxation is available u/s 90 of the Act read with Article 23 of the India-Germany DTAA, but such relief is subject to compliance with the conditions prescribed under Rule 128 of the Income-tax Rules, 1962. Accordingly, the Ld. CIT(A) held that the assessee was not entitled to foreign tax credit of Rs. 3,17,536/- due to belated filing of Form No. 67. He, therefore, upheld the demand of Rs. 4,14,100/- raised by the CPC u/s 143(1) of the Act and dismissed the appeal of the assessee. 9. Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal seeking relief of foreign tax as per section 90 read with the provisions of the DTAA between India and Germany. 10. The Learned AR for the assessee before us filed a paper book running from pages 01 to 74. The Ld. AR reiterated the submissions made before the lower authorities and submitted that filing Form No. 67 is only a procedural requirement, and delay in filing the same cannot defeat the assessee's substantive right to claim foreign tax credit u/s 90 of the Act read with Article 23 of the India-Germany DTAA. The Ld.....
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....the same as having been filed belatedly. However, the Form No. 67 filed by the assessee on 31.08.2019 was not taken into consideration. Therefore, the finding of the Ld. CIT(A) that the assessee had failed to file Form No. 67 within the prescribed time cannot be sustained. 12.5 Having said so, even assuming that the corrected Form No. 67 filed on 27.01.2023 is treated as having been filed belatedly, the assessee's claim of foreign tax credit cannot be denied merely on this ground. In this regard, we find that the issue is covered by the decision of the Coordinate Bench of this Tribunal in the case of Deepak Shimoga Padmaraju v. ADIT/ITO reported in [2024] 162 taxmann.com 96 (Bangalore - Trib.)/[2024] 206 ITD 803 (Bangalore - Trib.). In the said decision, the Tribunal, following the decision in Vinodkumar Lakshmipathi v. CIT(A), NFAC, Delhi reported in [2022] 145 taxmann.com 235 (Bangalore - Trib.), held that Rule 128(9) of the Income-tax Rules, 1962 does not provide for disallowance of foreign tax credit merely on account of delay in filing Form No. 67. It was further held that filing of Form No. 67 within the prescribed time is a directory requirement and that delay in furn....