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Income Tax Appellate Tribunal, DELHI BENCH “SMC” NEW DELHI
Before: SHRI CHALLA NAGENDRA PRASAD
सुनवाईक�तारीख/ Date of hearing: 03.01.2025 24.01.2025 उ�ोषणाक�तारीख/Pronouncement on आदेश /O R D E R
This appeal is filed by the assessee against the order of the Ld. Addl./JCIT(Appeals), Pune dated 14.02.2024 for the AY 2019-20 in denying Foreign Tax Credit claimed by the assessee under article 25(2)(a) of the India USA Double Taxation Avoidance Agreement (DTAA) read with section 90 of the I.T. Act.
Heard rival submissions. On reading of the orders of the authorities below we observed that the claim for Foreign Tax Credit was denied to the assessee for the reason that the assessee has 1
I.T.A.No.1661/Del/2024 filed Form 67 after filing return of income u/s 139(1) of the Act.
The assessee filed revised return and claimed Foreign Tax Credit and also filed Form 67. Since the assessee filed Form 67 belatedly and not along with the return as specified under section 139(1) of the Act the claim for Foreign Tax Credit was denied.
Identical issue came up before the coordinate bench of the Tribunal in the case of Neha Kapoor Vs. ITO in dated 29.08.2023, wherein the Tribunal directed the Assessing Officer to allow credit of Foreign Tax Credit to the assessee observing as under:
“8. We have considered the submissions of the parties and perused the records. It is evident that the solitary ground of denial of the claim of the assessee for FTC is delay in filing Form 67. It is an admitted position that the assessee filed Form 67 on 26.03.2021 along with the revised return before the end of the relevant AY 2020-21 which is in conformity with the CBDT notification No. 100/2022 amending Sub Rule 9 of Rule 128 of the Rules. Various coordinate benches of the Tribunal have held that filing Form 67 is a procedural/directory requirement and is not a mandatory requirement. We, therefore, disagree with the view of the Ld. CIT(A) on the point and reproduce below the decision in the case of Miss Brinda Rama Krishna (supra) in which facts are identical: "16. I have given a careful consideration to the rival submissions. I agree with the contentions put forth by the learned counsel for the Assessee and hold that (i) Rule 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No.67; (ii) filing of Form No.67 is not mandatory but a directory requirement and (iii) 2
I.T.A.No.1661/Del/2024 DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. I am of the view that the issue was not debatable and there was only one view possible on the issue which is the view set out above. I am also of the view that the issue in the proceedings u/s.154 of the Act, even if it involves long drawn process of reasoning, the answer to the question can be only one and in such circumstances, proceedings u/s.154 of the Act, can be resorted to. Even otherwise the ground on which the revenue authorities rejected the Assessee's application u/s.154 of the Act was not on the ground that the issue was debatable but on merits. I therefore do not agree with the submission of the learned DR in this regard."
Respectfully we follow the decision (supra).
Accordingly, we hereby direct the Ld. AO to allow the impugned credit of FTC to the assessee in the light of the decision in the case of Ms. Brinda Rama Krishna (supra).”
Similar view has been taken by the coordinate bench in the case of Ajay Kumar Mishra in dated 17.04.2023. Following the above orders, we direct the Assessing Officer to accept Form 67 filed by the assessee and allow Foreign Tax Credit in accordance with law.
In the result, appeal of the assessee is allowed.