SUBRAMANIAN SHYAMSUNDER,CHENNAI vs. ACIT- NON CORP CIRCLE 17(1), CHENNAI

This appeal arises from vide DIN/order No. ITBA/APL/S/250/ 2023- 24/1061422896(1) dated 23.02.2024 of the CIT(A).

ITA No.639/Chny/2023 :- 2 -:

2.0 Through the ground of appeal the assesse has primarily challenged the action of the AO u/s 143(1) vide order dated 29.07.2020 and its confirmation by the CIT(A) of denying it the relief of Rs.5,77,855/- u/s 90/90A on the premise of mandatory Form-67 being late by 01 day.

3.0 As per brief facts of the case, the assessee is an individual and had filed its return of income on 31.08.2019 and the Form-67 on 01.09.2020. The relief claimed by the appellant u/s 90 was disallowed on the premise of mandatory Form-67 being late by 01 day.

4.0 We have considered facts of the case in the light of evidence placed on record and rival’s submissions. The only issue for consideration is as to whether the delay of 01 day can be condoned or not. In support of its contentions the assesse has invited attention to the decision of the coordinate bench of this tribunal in IT appeal No.265 & 266 (CHNY) of 2023 in the case of Amit Singh Baid Mehta. The issue under consideration was as to whether non-submission of Form-67 before the due date of filing of written was enough to deny the claim of exemption u/s.90. The coordinate bench concluded the filing of Form-67 is merely a procedural / directory requirement and is not mandatory requirement so as to deny claim. The relevant part of the judgement is reproduced hereunder:

ITA No.639/Chny/2023 :- 3 -:

…6.3 No doubt, rule 128(0) provides that Form 67 should be filed on or before the due date of filing the return of income as prescribed under section 139(1) of the Act. However, the Rule nowhere provides that if the said Form 67 is not filed within the above stated time frame, the relief as sought for by the assesse under section 90 of the Act would be denied. 6.4 If the intention of the Legislature was to deny the FTC, either the Act or the Rules would have specifically provided that the FTC would be disallowed if the assesse does not file Form 67 within the due date prescribed under section 139(1) of the Act. There are many sections in the Act which specifically deny deduction or exemption or relief in case the return is not filed within prescribed time, such as, sections 80AC, 80- IA(7), 10A(5) and 10B(5), etc. of the Income-tax Act. Such language is not used in Rule 128(9). Therefore, such condition cannot be read into rule 128(9). Thus, we are of the considered opinion that filing of Form 67 is a procedural / directory requirement and is not a mandatory requirement. Since violation of procedural norm does not extinguish the substantive right of claiming the credit of FTC, we are of the considered opinion that the claim of the assesse should be allowed. Accordingly, we set aside the order of the ld.CIT(A) for both the assessment years and direct the Assessing Officer to allow the relief as sought for by the assesse under section 90 of the Act for both the assessment years under consideration…..

5.0 Upon careful consideration of the facts and the judgement cited Supra we hold that the assesse cannot be denied benefit of the claim u/s.90 merely because of technical / procedural default of just 01 day. Accordingly, the AO is directed to condone the delay and allow the assesse the benefit of claim u/s 90. The ground of appeal raised by the assesse is therefore allowed.

ITA No.639/Chny/2023 :- 4 -: 6.0 In the result the appeal is allowed. Order pronounced on 29th May, 2024.