SENTHIL KUMAR THANGAVELU,BANGALORE vs. DCIT, CIRCLE-3(3)(1), BANGALORE

This appeal is filed by Shri Senthil Kumar Thangavelu (the assessee/appellant) for the assessment year 2019-20 against the appellate order passed by the Addl./JCIT(Appeals)-1, Delhi (NFAC) [ld. CIT(A)] dated 24.02.2025 wherein the appeal filed by the assessee against the intimation issued u/s. 143(1) of the Income-tax Act, 1961

The brief facts of the case show that assessee is an individual, employed with Qualcomm India Pvt. Ltd. deriving income from salary, capital gain, dividend and interest. For AY 2019-20, assessee filed return of income on 23.9.2019 at a total income of Rs.1,29,31,520. In the return, he claimed Foreign Tax Credit [FTC] of Rs.79,518. This return was processed u/s. 143(1) of the Act on 23.3.2021 wherein the FTC claimed u/s. 90/ 90A of Rs.79,518 was considered as Nil at sl.No.33 of the Income Tax computation of the assessee. The due date for filing of original return for this year was 31.8.2019, whereas the assessee filed his return of income on 23.9.2019.

Aggrieved by the above intimation, assessee preferred appeal before the ld. CIT(A). Assessee submitted that denial of FTC to the assessee is not proper. He further stated that filing of Form 67 within the due date is also not a mandatory requirement for claiming FTC and further relied upon the Notification dated 18.8.2022 amending Rule 128 permitting the assessee to file Form 67 within the assessment year itself for claiming FTC. The assessee relied upon Rule 128 and several judicial precedents.

The ld. CIT(A) noted that the appeal is filed before him with a substantial delay of 302 days. It was held that intimation was passed on 23.3.2021 and due date for filing of appeal expired on 22.4.2021, whereas the assessee filed appeal on 28.3.2023. The ld. CIT(A) also noted the period of COVID and also the decision of the Hon’ble Supreme Court wherein additional 90 days were provided from 1.3.2022 for filing of appeals. Thus the delay of 302 days was computed from 30.5.2022. In Form 35 assessee stated that the above period was primarily spent in identifying the professionals and deciding the viability of the appeal. Therefore delay of 302 days may be condoned. The ld. CIT(A) after considering several judicial precedents held that assessee was aware about the disallowance of FTC and the favourable decision of the ITAT as well as Notification issued by CBDT and therefore the delay in acting upon this information does not qualify as a valid ground for condonation. Accordingly appeal of the assessee was dismissed without condonation of delay.

The ld. AR submitted that identically in the case of assessee for AY 2021-22 wherein FTC was denied, the coordinate Bench vide order dated 30.4.2025 has condoned the delay of 136 days and remitted the issue back to the file of AO for fresh consideration of FTC. The coordinate Bench further relied upon another decision of coordinate Bench in dated 17.4.2024. Therefore he stated that when in AY 2021-22 the coordinate Bench considered the delay of 136 days on the same set of facts, the delay may also be condoned in the present appeal and the issue may be restored to the file of ld. AO to grant credit of Foreign Tax in accordance with law.

The ld. AR submitted that the decisions stated by the ld. CIT(A) not to condone the delay are not applicable to the facts of the present case.

The ld. DR vehemently supported the order of the ld. CIT(A) stating that the delay of 302 days could not have been condoned without showing sufficient cause and therefore no fault can be found with the order of the ld. CIT(A).

We have carefully considered the rival contentions and perused the orders of the ld. lower authorities. On identical facts and circumstances of the case of the assessee for AY 2021-22, the coordinate Bench of Tribunal has condoned the delay of 136 days and directed the ld. AO to consider the claim of FTC after granting opportunity of being heard to the assessee. In the present assessee, we find that part of the delay was on account of COVID period and part of delay was on account of assessee for identifying the counsel for filing of the appeal. As we have been shown the order of the coordinate Bench in assessee’s own case for earlier years condoning the delay, there is no change in the facts and circumstances and therefore respectfully following the decision of the coordinate Bench in the case of assessee itself in earlier year, we hold that the ld. CIT(A) was not correct in not condoning the delay of 302 days.

Accordingly we restore the whole matter back to the file of ld. AO with a direction to the assessee to substantiate the claim of assessee with documents and evidence, which may be considered by the AO and if found in order, grant Foreign Tax Credit to the assessee.

In the result, the appeal by the assessee is allowed for statistical purposes