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Facts
The assessee, an individual with income from salary, house property, and other sources, filed their return. A demand was raised by CPC. The assessee appealed to the CIT(A) who dismissed it without condoning the delay, and the present appeal is against this order.
Held
The Tribunal held that the CIT(A) erred by dismissing the appeal without condoning the delay, especially since the assessee had paid taxes in the USA and provided evidence. The order of the CIT(A) was set aside and the matter remanded.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal without condoning the delay, and whether Foreign Tax Credit (FTC) should be allowed.
Sections Cited
139(1), 143(1)
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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI MANISH BORAD & SHRI VINAY BHAMORE
Assessment Year : 2017-18 Abhinav Limaye, Vs. DCIT, CPC, Bengaluru. B-605, Sai Marigold, Rahatani Road, Pimple Saudagar, Pune- 411027. PAN : ACLPL5320P Appellant Respondent Assessee by : Shri Rajendra Agiwal Revenue by : Ms. Shilpa N. C. Date of hearing : 22.01.2025 Date of pronouncement : 28.03.2025 आदेश / ORDER
PER VINAY BHAMORE, JM:
This appeal filed by the assessee is directed against the order dated 17.10.2024 passed by Ld. Addl/JCIT(A), Udaipur [‘Ld. CIT(A)’] for the assessment year 2017-18.
Facts of the case, in brief, are that the assessee is an individual having income from salary, house property and income from other sources and has furnished return of income u/s 139(1) of the IT Act Rs.17,74,210/-. The return was processed by CPC and a demand of Rs.1,56,730/- was raised. After considering the reply of the assessee, Ld. CIT(A) dismissed the appeal filed by the assessee without condoning the delay. It is this order against which the assessee is in appeal before this Tribunal.
3. Ld. AR appearing from the side of the assessee submitted before us that the order passed by Ld. CIT(A) is unjustified. Ld. AR submitted before us that the assessee is a salaried employee working in Infosys Limited and for part of the financial year worked in United States of America (USA) and was paid certain amount in USD and has also paid taxes over there for which Foreign Tax Credit (FTC) certificate of Rs.1,17,406/- in Form No.67 was issued to him. Ld. AR further submitted that the fact of FTC of Rs.1,17,406/- was mentioned in Form No.16 issued by the employer and was duly appearing in Form 26AS but prior to making any adjustment, CPC has not issued any communication to the assessee. Ld. AR submitted before the Bench that it is true that the appeal before Ld. CIT(A) could not be filed within time limit prescribed under the Statute for which an affidavit along with application for condonation of delay was also furnished before Ld. CIT(A). Since Ld. CIT(A) was not convinced with the reasons mentioned in the application for condonation of delay, the appeal was dismissed without going into merits of the case by not condoning the delay. Ld. AR submitted before the Bench that the assessee was posted abroad and was confident that the tax has been deducted on the salary received by him and therefore no demand would be raised against him. Only in the year 2023 when a demand notice was received by him he came to know about the fact that a demand has been raised by CPC against him in the year 2018 and then only he contacted a tax consultant who advised him to file appeal belatedly and immediately the assessee filed the appeal and also filed application for condonation of delay supported by an affidavit. Under these circumstances, Ld. AR prayed before the Bench that Ld. CIT(A) ought to have considered and allowed the application for condonation of delay and should have had decided the appeal on merits of the case. In this regard, Ld. AR relied on the following case laws :- “1. Decision on condonation of delay - Ecoboard Industries Ltd vs. DCIT, Circle-1(1), Pune to 1151/PUN/2024 order dated 17.01.2025. 2. Allowability of Foreign Tax Credit - Nandkumar Chandra vs. ITO, Ward-13(1), Pune order dated 23.12.2024 and Sonakshi Sinha vs. Commissioner of Income-tax (Appeals) order dated 20.09.2022.
Form no. 67 was filed after receipt of intimation u/s 143(1) - Shri. Subhankar Chakraborty vs. ITO, Ward 5(3)(2), Bengaluru order dated 19.01.2023.
DTAA overrides the provisions of Act even in case of allowability of FTC. DTAA do not prescribe any condition of filing form etc for allowability of FTC - Brinda Ramakrishna Vs. Income Tax Officer (2022) 193 ITD 0840 (Bangalore-Trib), 4. Accordingly, Ld. AR prayed before the Bench to set-aside the order passed by Ld. CIT(A) and further requested to direct Ld. CIT(A) to condone the delay and decide the appeal on merits of the case.
Ld. DR appearing from the side of the Revenue relied on the orders passed by the subordinate authorities and requested to confirm the same.
We have heard Ld. Counsels from both the sides and perused the material available on record. In this regard, we find that Ld. CIT(A) has dismissed the appeal without condoning the delay and not deciding the appeal on merits of the case. We find that the assessee is a salaried employee working with Infosys Limited and for part of the period under consideration worked in USA and certain salary was paid to him over there & due taxes were also Form No.16 issued by his employer. It is an admitted fact that Form No.67 FTC certificate was not filed along with return of income but subsequently it was filed and Ld. CIT(A) has not considered the same. We also find that Ld. CIT(A) has not condoned the delay since the delay is inordinate delay. We find that the assessee is a salaried employee and taxes were already deducted & paid on his salary and apart from the delay, there is no mistake of the assessee and no taxes payable as held by the CPC. Considering the totality of the facts of the case and in the interest of justice, we deem it appropriate to set-aside the order passed by Ld. CIT(A) and remand the matter back to him with a direction to condone the delay and decide the appeal afresh as per fact and law after providing reasonable opportunity of hearing to the assessee. The assessee is also hereby directed to respond to the notices issued by Ld. CIT(A) in this regard and produce documents/evidences in support of grounds of appeal without taking any adjournment under any pretext, otherwise Ld. CIT(A) shall be at liberty to pass appropriate order as per law. Thus, the grounds of appeal raised by the assessee are partly allowed.