NOBUHIRO WATABE,KANCHEEPURAM V. DCIT, NCW-17(3), CHENNAI

ITA 3179/CHNY/2025

AI Insights

The case revolves around the denial of a Foreign Tax Credit (FTC) to the assessee, Shri Nobuhiro Watabe, a foreign citizen, for the assessment year 2018-19. The assessee filed his income tax return on time but submitted Form 67, necessary for claiming FTC, belatedly. The initial denial of the FTC by the Deputy Commissioner of Income Tax was upheld by the First Appellate Authority, leading to the present appeal. The Tribunal, referencing judgments from the Madras High Court and other Tribunal decisions, found that the late filing of Form 67 does not mandatorily disqualify the assessee from receiving the FTC, especially as the form was filed before the final assessment order was made.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 832041 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2026
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 07-11-2025
• Other Referred Cases: Shri Kuthoore Natarajan Venkatasubramanian vs. PCIT, Vinodkumar Lakshmipathi vs. CIT(A), Duraiswamy Kumaraswamy vs. PCIT, Brinda Ramakrishna vs ITO, Smt. Chengam Durga vs. CIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R.KAVITHA
• Assessee Lawyers: N. ARJUN RAJ
• Keywords: Set aside; TDS; Residential status
• Section: 154; 90

Judgement Text

"आयकर अपीलȣय अͬधकरण, ‘ए’ Ûयायपीठ, चेÛनई IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI Įी जॉज[ जॉज[ क े, उपाÚय¢ एवं सुĮी पɮमावती एस, लेखा सदèय क े सम¢ BEFORE SHRI GEORGE GEORGE K, VICE PRESIDENTAND MS PADMAVATHY S, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.: 3179/CHNY/2025 िनधाᭅरण वषᭅ/Assessment Year: 2018-19 Shri Nobuhiro Watabe, A8, SIPCOT Industrial Growth Center, Vallam B Village, Oragadam, Kancheepuram – 602 105. PAN: ADLPW 6778K Vs. The Deputy Commissioner of Income Tax, Non-Corporate Ward 1(3), Chennai (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri N. Arjun Raj, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Ms. R. Kavitha, Addl.CIT सुनवाई कᳱ तारीख/Date of Hearing : 22.01.2026 घोषणा कᳱ तारीख/Date of Pronouncement : 23.01.2026 आदेश/ O R D E R PER GEORGE GEORGE K, VICE PRESIDENT: This appeal filed by the assessee is directed against Addl/JCIT(A), Raipur order dated 19.09.2025, passed under section 250 of the Income Tax Act, 1961 (hereinafter called ‘the Act’). The relevant Assessment Year is 2018-19. Printed from counselvise.com ITA No.3179/Chny/2025 :- 2 -: 2. Brief facts of the case are of follows: The assessee is a foreign citizen. For the assessment year 2018-19, the return of income was filed on 28.08.2018. For claiming Foreign Tax Credit (FTC), the assessee filed Form 67 belatedly on 04.09.2018. Intimation was issued u/s.142(1) of the Act on 08.04.2020 wherein the FTC amounting to Rs.15,73,721/- was denied. 3. Aggrieved by the intimation issued u/s.143(1) of the Act for denying the claim of FTC, assessee filed appeal before the First Appellate Authority (FAA). The FAA confirmed the disallowance of FTC. The FAA held that he does not have the power to condone the delay in filing Form 67. 4. Aggrieved by the order of the FAA, assessee has filed the present appeal before the Tribunal. The assessee has filed a paper- book enclosing therein, copy of return of income, statement of total income, Form 67, break-up of salary received, intimation issued u/s.143(1) of the Act, written submissions filed before the FAA, etc. The ld.AR submitted that the issue in question is covered in favour of the assessee by the judgment of the Hon’ble Jurisdictional High Court judgment in the case of Shri Kuthoore Natarajan Venkatasubramanian vs. PCIT in W.P No.12578 of 2024 (judgement dated 26.09.2024) and order of the Bangalore Bench of the Tribunal Printed from counselvise.com ITA No.3179/Chny/2025 :- 3 -: in the case of Vinodkumar Lakshmipathi vs. CIT(A) in ITA No.680/BANG/2025 (order dated 06.09.2022). The Ld.AR submitted that Form 67 was filed before the return of income was processed u/s.143(1) of the Act. The Ld.AR submitted that in above two judicial pronouncements, assessee had filed Form No.67 along with appeal filed before the FAA. 5. Per contra, the ld.DR supported the order of the First Appellate Authority. 6. We have heard rival submissions and perused the material on record. The assessee had filed the Form 67 belatedly on 04.09.2018. The claim of FTC in Form 67 was denied for the reason that it was filed late (not within the due date prescribed u/s.139(1) of the Act). On identical facts, the Hon’ble Madras High Court in the case of Shri Kuthoore Natarajan Venkatasubramanian, supra had held that filing of Form 67 is directory in nature and it is not a mandatory requirement. The relevant finding of the Hon’ble Jurisdictional High Court in the case of Vinodkumar Lakshmipathi, supra reads as under:- “3. Learned Senior Standing Counsel for the respondents would strongly oppose stating that the petitioner should have filed Form-67 along with ROI, which was filed on 21.09.2020, whereas, the petitioner filed Form~67 only on 08.10.22 after the lapse of a period of two years. Therefore the Printed from counselvise.com ITA No.3179/Chny/2025 :- 4 -: revisionsal authority has rightly rejected the claim of the petitioner and the writ petition is liable to be dismissed. 4. I have considered the rival submissions made on either side and perused the materials available on record. 5 In the present case, the petitioner, who was working in foreign country, had filed his ROI for the assessment year 2020~21 on 21.09.2020 in India, but due to Covid out break he could not get necessary documents from foreign country and file Form~67 along with ROI. But, the petitioner uploaded the Form~67 on 08.10.2022. The reasons stated by the petitioner appears to be reasonable and genuine and further this Court in a similar case reported in (2024) 460 ITR 615 (Duraiswamy Kumaraswamy vs. Principal Commissioner of Income Tax and Other) passed the following order. “9.In the present case, the petitioner initially worked at Kenya and subsequently, he became the resident of India from the assessment years 2018-2019 and 2019-2020. The petitioner admitted the fact that he has filed his return in India on August 10, 2019. The intimation under Section 143(1) was issued on March 26, 2020. However, he has filed the return without Form 67 which is required to be filed under Rule 128 to claim the benefit of foreign tax credit and the same came to be filed on February 2, 2021 which was well before the completion of the assessment year. The intimation under Section 143(1) was issued from the Centralized Processing Centre only on March 26, 2021. 10.According to the learned counsel appearing for the respondent, the procedure under rule 128 is mandatory and cannot be considered as directory in nature. The petitioner has filed his return including his Kenya income along with his Indian Income- tax and claimed the benefits of foreign tax credit. However, the petitioner would submit that it is not mandatory. The rule cannot make anything mandatory and it can be directory in nature, that too before the assessment, the claim to avail the benefits of foreign tax credit is filed. Therefore, it would amount to due compliance under the Act. The petitioner referred to the Judgment of the hon- ble Supreme Court in the case of CIT v. G.M.Knitting Industries (P.) Ltd. in Civil Appeal Nos.10782 of 2013 and 4048 of 2014 dated July 24, 2015, wherein it was held that Form 3AA is required to be filed along with the return of income to avail the benefit and Printed from counselvise.com ITA No.3179/Chny/2025 :- 5 -: even if it is not filed, but the same is filed during assessment proceedings but before the final order of assessment is made that would amount to sufficient compliance. 11.The law laid down by the hon-ble apex court in CIT v. G.M.Knitting Industries (P.) Ltd. in Civil Appeal Nos.10782 of 2013 and 4048 of 2014 dated July 24, 2015, which was referred above, would be squarely applicable to the present case. In the present case, the returns were filed without foreign tax credit, however the same was filed before passing of the final assessment order. The filing of foreign tax credit in terms of the rule 128 is only directory in nature. The rule is only for the implementation of the provisions of the Act and it will always be directory in nature. This is what the hon-ble Supreme Court had held in the above cases when the returns were filed without furnishing Form 3AA and the same can be filed subsequent to the passing of the assessment order. 12. Further, in the present case, the intimation under Section 143(1) was issued on March 26, 2021, but the foreign tax credit was filed on February 2, 2021. Thus, the respondent is supposed to have provided the due credit to the foreign tax credit of the petitioner. However, the foreign tax credit was rejected by the respondent, which is not proper and the same is not in accordance with law. Therefore the impugned order is liable to be set aside. 13. Accordingly the impugned order dated January 25, 2022 is set aside. While setting aside the impugned order, this Court remits the matter back to the respondent to make reassessment by taking into consideration of the foreign tax credit filed by the petitioner on February 2, 2021. The respondent is directed to give due credit to the Kenya income of the petitioner and pass the final assessment order. Further, it is made clear that the impugned order is set aside only to the extent of disallowing of foreign tax credit claim made by the petitioner and hence, the first respondent is directed to consider only on the aspect of rejection of foreign tax credit claim within a period of 8 weeks from the date of receipt of copy of this order. 6 This Court, by following the judgment of the Hon-ble Supreme Court, held that filing of foreign tax credit in terms of Rule 128 is only directory in nature and not mandatory. In the present case the petitioner was working in United Kingdom and earned Rs.43,06,224/~. The petitioner filed return of income in India for the assessment year 2020~2021 on 21.09.2020 Printed from counselvise.com ITA No.3179/Chny/2025 :- 6 -: showing the income earned in the foreign country, in which he claimed Rs.6,27,023/~ being TDS credit before United Kingdom, as FTC under Section 90 of the Income Tax Act. But the petitioner uploaded Form 67 with delay, which he suppose to upload while filing the return of income. It is to be noted that Section 90, Section 90A and Section 91 of the Income Tax Act of 1961 have been drafted specifically to avoid the burden of double taxation. 7 In the present case, even though the petitioner had not uploaded Form~67 while filing return of tax, later he uploaded the same with delay and that too due to Covid out break he was not able to get necessary documents from the foreign country, which appears to be genuine. Therefore this Court is inclined to condone the delay in filing Form 67 and the impugned order is liable to be set aside. 7. On identical facts, the Chennai Bench of the Tribunal in the case of Smt. Chengam Durga, in ITA No.1491/CHNY/2023 by following the judgment of the Hon’ble Jurisdictional High Court in the case of Duraiswamy Kumaraswamy vs. PCIT [2024] 460 ITR 615 (Madras) decided the issue in favour of the assessee. The relevant finding of the Chennai Bench of Tribunal reads as follows:- “2. The assessee filed return of income on 09.09.2021 and claimed relief u/s 90 for Rs.1.51 Lacs. The return was processed by CPC u/s 143(1) on 05.07.2022 wherein this credit was denied since the assessee did not file applicable Form No.67 to claim the said relief. The assessee filed Form No.67 along with rectification application u/s 154 on 18.07.2022 in respect of her claim. However, CPC again denied the same in an intimation issued u/s 154. Upon further appeal, Ld. CIT(A), relying on the decision of Bangalore Tribunal in the case of Brinda Ramakrishna vs ITO (ITA No.454/Bang/2021 dated 17.11.2021), directed Ld. AO to grant the credit as per Form No.67. Aggrieved, the revenue is in further appeal before us. 3. We find that this issue is squarely covered by the cited decision of Bangalore Tribunal. Recently, Hon’ble High Court of Madras in the case of Duraiswamy Kumaraswamy (WP No.5834 of 2022 & ors. order dated 06.10.2023) held that filing of aforesaid form in terms of Rule 128 is only Printed from counselvise.com ITA No.3179/Chny/2025 :- 7 -: directory in nature. The rule is only for the implementation of the provisions of the act and it will always be directory in nature. Respectfully following the same, we dismiss the appeal.” 8. In light of the aforesaid judicial pronouncements, we hold that filing of Form 67 under Rule 128 of the Income Tax Rules, 1962 is directory in nature and not mandatory. Hence, we direct the AO to examine whether Foreign Tax Credit amounting to Rs.15,73,721/- claimed in Form 67 is in order and take a decision in accordance with law. It is ordered accordingly. 9. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 23rd January, 2026 at Chennai. Sd/- Sd/- (पɮमावती एस) (PADMAVATHY S) लेखा सदèय/ACCOUNTANT MEMBER (जॉज[ जॉज[ क े) (GEORGE GEORGE K) उपाÚय¢ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 23rd January, 2026 RSR आदेश कȧ ĤǓतͧलͪप अĒेͪषत/Copy to: 1. अपीलाथȸ/Appellant 2. Ĥ×यथȸ/Respondent 3. आयकर आयुÈत /CIT, Chennai 4. ͪवभागीय ĤǓतǓनͬध/DR 5. गाड[ फाईल/GF. Printed from counselvise.com "