Saurabh Daga, Kolkata V. ITO, Ward 46(1), Kolkata

ITA 209/KOL/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2726 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2021-2022
• Appeal Filed On: 04-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Residential status; Double taxation relief
• Section: 90; 154; 250; 139(4)

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'एसएमसी' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘SMC’ BENCH, KOLKATA डॉ. मनीष बोरड, ल े खा सदस्य एवं श्री प्रदीप क ु मार चौब े , न्याधयक सदस्य क े समक्ष Before DR. MANISH BORAD, ACCOUNTANT MEMBER & PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER I.T.A. No.: 209/Kol/2024 Assessment Year: 2021-22 Saurabh Daga.........................................................................Appellant [PAN: AHGPD 0107 J] Vs. ITO, Ward-46(1), Kolkata......................................................Respondent Appearances: Assessee represented by: Siddharth Agarwal, Adv. Department represented by: Swapan Kumar Bera, Addl. CIT. Date of concluding the hearing : April 17 th , 2024 Date of pronouncing the order : April 29 th , 2024 ORDER Per Pradip Kumar Choubey, Judicial Member: This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2021-22 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income-tax (Appeals)- NFAC, Delhi [in short ld. ‘CIT(A)’] dated 26.12.2023 arising out of the assessment order framed u/s 154 of the Act dated 15.01.2023. 2. The only issue has been raised by the assessee against the order of ld. CIT(A) is against upholding the order of the Assessing Officer (in short ld. 'AO') denying foreign tax credit to the assessee on the ground of belated filing of Form 67. 3. In order to appreciate the points urged in the instant appeal it is essential to state the brief facts of the assessee. The assessee being an I.T.A. No.: 209/Kol/2024 Assessment Year: 2021-22 Saurabh Daga. Page 2 of 4 individual had filed income tax return u/s 139(4) of the Act dated 31.01.2022 showing total income of Rs. 26,47,650/-. It is further stated that the assessee was resident of India during the year and his global income was taxable for AY 2021-22. The said return was duly processed and in the said intimation ld. ADIT, CPC assessed the total income of Rs. 26,47,650/-. However, the said intimation dated 12.05.2022 ld. ADIT, CPC had erroneously failed to give credit u/s of 90 the Act in respect to tax paid outside India to the tune of Rs. 3,60,393/-. The assessee has filed rectification u/s 154 of the Act stating the mistake. On 22.12.2022 & 15.01.2023 respectively ld. ADIT, CPC has passed rectification orders without allowing the credit of tax paid outside India. The assessee filed appeal before ld. CIT(A) but ld. CIT(A) had dismissed the appeal of the assessee on the sole ground that assessee failed to file Form 67 in time. 4. Being aggrieved and dissatisfied with the order the present appeal has been preferred by the assessee before the Tribunal. 5. At the very outset, ld. Counsel for the assessee has submitted that its case is squarely covered by the decisions of several Coordinate Benches of the Tribunal and he placed the following judgments: (a) Atanu Mukherjee vs. ITO, ITA No. 439/K/2022, order dated 20.12.2022 (b) Sobhan Lal Gangopadhyay vs. ADIT, ITA No. 782/K/2022, order dated 09.05.2022 (c) Suresh Kumar Doodi vs. ACIT, ITA No. 164/JP/2023, Order dated 28.07.2023 (d) Vinodkumar Lakshmipathi vs. CIT(A), ITA No. 680/Bang/2022, Order dated 06.09.2022 6. We have gone through the above judgment and find that in the case of Atanu Mukherjee (supra) Coordinate Bench of this Tribunal has followed the decision of Coordinate Bench, Bangalore passed in the case of M/s. Brinda Rama Krishna vs. ITO in ITA No. 454/BANG/2021 order dated 17.11.2021 which is reproduced as under: “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 I.T.A. No.: 209/Kol/2024 Assessment Year: 2021-22 Saurabh Daga. Page 3 of 4 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) 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. 17. In the result, the appeal is allowed.” 7. Furthermore, similar ratio has been laid down in other decisions of the Coordinate Bench, Bangalore in the case of Shri Pradeep Lankapally vs. DCIT in ITA No. 560/BANG/2021 order dated 31.01.2022. 8. We have also gone through the other judgments cited by the assessee and find that all the Coordinate Benches have observed that ld. AO ought not to have denied the relief u/s 90 of the Act merely for delay in filing of Form 67. It is needless to reproduce the case of the all-cited decisions. In the present case it is an admitted fact that the assessee being an individual rendered his service in United Kingdom and in this way, he claimed u/s 90 of the Act in respect of the tax paid outside India to the tune of Rs. 3,60,393/-. 9. Keeping in view the above cited decisions and facts of the case, we are of the firm opinion that ld. AO ought not to have denied the relief u/s 90 of the Act merely for delay in filing Form 67. Thus, the effective grounds raised by the assessee are allowed. 10. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open Court on 29 th April, 2024. Sd/- Sd/- [Manish Borad] [Pradip Kumar Choubey] Accountant Member Judicial Member Dated: 29.04.2024 Bidhan (P.S.) I.T.A. No.: 209/Kol/2024 Assessment Year: 2021-22 Saurabh Daga. Page 4 of 4 Copy of the order forwarded to: 1. Saurabh Daga, C/o Subash Agarwal & Associates, Advocates Siddha Gibson, 1, Gibson Lane, Suite 213, 2 nd Floor, Kolkata-700 069. 2. ITO, Ward-46(1), Kolkata. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata