IN THE ITAT DELHI

AMIT SHUKLA, J.M. & M. BALAGANESH, A.M.

Power & Energy Consultants India (P) Ltd. v. ITO

ITA No. 3420/Del/2023

15 February, 2024

Assessee by: Harish Chaudhary, Ca, Mohit Chaudhary, CA & Neetu Jain, CA

Revenue by: Vivek Vardhan, Sr. DR

M. Balaganesh, A. M.

1. The appeal in Iincom tax No.3420/Del/2023 for AY 2021-22, arises out of the order of the National Faceless Appeal Centre (NFAC), Delhi (hereinafter referred to as learned Commissioner (Appeals), in short) in Appeal No. ITBA/NFAC/S/250/2023-24/1058066054(1) dated 20-11-2023 against the order of assessment passed under section 154 of the Income-tax Act, 1961 (hereinafter referred to as the Act) dated 10-1-2023 by the Assessing Officer, CPC, Bengaluru (hereinafter referred to as ld. AO).

2. The assessee has raised the following grounds of appeal:-

That on the facts and in the circumstances of the appellant's case, National Faceless Appeal Centre erred in law by merely dismissing the appeal without considering the submission of the appellant and sustained the addition only on the basis of conjecture and surmises without deciding the matter on merits of the case. It is well known fact that filling of Form 67 before filing of return of income is directory in nature not mandatory in nature. Hence, dismissal of appellate order is in law and liable to be deleted.

3. We have heard the rival submissions and perused the material available on record. The assessee has electronically filed its return of income under section 139(1) of the Act on 15-1-2022 declaring total income of Rs. 1,20,61,610 wherein, a sum of Rs. 30,10,546was claimed as foreign tax credit. This return was duly processed under section 143(1) of the Act on 25-10-2022, wherein, the foreign tax credit of Rs. 30,10,546 being the relief claimed under section 90 of the Act was denied to the assessee on the ground that Form 67 was not filed by the assessee in support of the same. Subsequently, on 19-11-2022, the assessee filed Form 67 vide acknowledgement No. 811297900191122 claiming foreign tax credit of Rs. 30,58,484 and filed rectification petition under section 154 of the Act on 23-11-2022. The same was dismissed on the ground that Form 67 was not filed before the end of the relevant assessment year. The assessee preferred an appeal before the learned Commissioner (Appeals) who also held that in order to claim relief under section 90 of the Act, the assessee is bound to file Form 67 before the end of the relevant assessment year. The learned Commissioner (Appeals) observed that in the instant case, the assessee had filed Form 67 claiming foreign tax credit only on 19-11-2022 which is beyond the end of the relevant assessment year and accordingly, the assessee was not eligible for relief u/s 90 of the Act.

4. It is not in dispute that the assessee had duly claimed the foreign tax credit in income tax return filed on 15-1-2022 itself under the relevant column schedule FSI. For the sake of convenience, the provisions of Rule 128 , 128(1), 128(2), 128(8) and 128(9) of the Income Tax Rules (hereinafter referred to as the Rules) are reproduced hereunder:-