SIVAKUMAR CHILUVURI,TELANGANA vs. ADIT (INT TAXN)-1, HYDERABAD

ORDER PER MANJUNATHA G, A.M. : This appeal has been filed by the assessee against the order dated 23.10.2024 of the learned Addl/JCIT(A)-10, Mumbai, relating to assessment year 2018-2019.

4 ITA.No.1367/Hyd./2024 is covered in favour of the Revenue by the decision of ITAT Visakhapatnam Bench, Visakhapatnam in the case of Muralikrishna Vaddi vs. ACIT/Dy.CIT reported in [2022] 142 taxman.com 32 [Visakhapatnam-Trib.] wherein the Tribunal by considering the relevant provisions of Rule- 128(9) of the Income Tax Rules, 1962 held that “filing of Form No.67 is mandatory on or before the due date for furnishing return of income u/sec.139(1) of the Act”. In the present case, the assessee has filed return of income beyond the due date specified u/sec.139(1) of the Act and, therefore, the Assessing Officer and learned CIT(A) has rightly rejected the FTC and their orders should be upheld. Learned DR has also taken support from the decision of Hon’ble Supreme Court in the case of PCIT vs. Wipro Limited [2022] 446 ITR 1 (SC) and argued that when law is mandatory for filing certain Forms within the “due date” specified therein, then Hon’ble Madras High Court in the case of Duraiswamy Kumaraswamy vs. PCIT-8, Chennai and others (supra), erred in holding that “although filing of relevant Form is mandatory, but the time limit within which 5 ITA.No.1367/Hyd./2024 the Form is to be filed is not mandatory, but is directory”. Therefore, he submitted that there is no error in the order of the learned CIT(A) in rejecting FTC claim of the assessee for not filing relevant Form-67 on or before the “due date” and thus, the order of the learned CIT(A) should be upheld.

6 ITA.No.1367/Hyd./2024 then, the Assessing officer is bound to give credit of taxes paid in outside India. The Hon’ble Madras High court in the case of Duraiswamy Kumaraswamy vs. PCIT-8 & Others (supra) has considered identical issue and held that once relevant Form No.67 is filed for claiming FTC before the date when the Assessing Officer passed his assessment order, then, the Assessing Officer is bound to give credit for taxes paid in outside India. Similar issue has been considered by the Co-ordinate Bench of the ITAT Hyderabad in the case of Rishi Khare, Hyderabad vs. ITO, Ward-12(6), Hyderabad in ITA.No.827/Hyd/2024, Order dated 30.12.2024 wherein the Tribunal by considering relevant provisions of the Act has held that “if Form No.67 is filed before the Assessing Officer passed the assessment order, then, it is sufficient compliance of relevant provisions of the Act and the Assessing Officer is bound to give credit to taxes paid in outside India”.

7 ITA.No.1367/Hyd./2024 view, but, in our considered view, when divergent views have been taken by multiple Benches of the Tribunal, then the view which has been taken in favour of the assessee needs to be considered and this principle is supported by the decision Hon’ble Supreme Court in the case of CIT vs. Vegetable Products Ltd., [1973] 88 ITR 192 (SC). As regards the case law relied on by the Learned DR in the case of Wipro Limited (supra), we find that, although Wipro has dealt with the issue of exemption provision provided u/sec.10B of the Income Tax Act, 1961, in our considered view, the ratio laid down by the Hon’ble Supreme Court in the case of Wipro Limited (supra), is not applicable to the facts of the present case because the issue before us is FTC which is altogether different from the issue considered by the Hon’ble Supreme Court and, therefore, in our considered view, the decision rendered by the Hon’ble Supreme Court in the case of Wipro Limited (supra), is not applicable to the facts of the present case. Therefore, we reject the proposition canvassed by the Learned DR.

8 ITA.No.1367/Hyd./2024 8. Considering the facts of the case and also by following the judicial precedents referred to hereinabove, we are of the considered view that the assessee is entitled for credit of FTC in light of relevant Form No.67 filed for the year under consideration. The learned CIT(A) has reached an incorrect conclusion on the basis of revised Form No.67 filed by the assessee on 30.09.2023, even though assessee has filed Original Form No.67 on or before the “due date” prescribed for filing revised return u/sec.139(5) of the Income Tax Act, 1961. Thus, we set aside the order of the learned CIT(A) and direct the Assessing Officer to allow credit for taxes paid in outside India in light of Form No.67 filed by the assessee. Accordingly the grounds of the assessee are allowed.