Bidyut Prakas Bhattacharya Vs ITO (ITAT Kolkata)
Assessee, an individual, was employed in Kenya & had paid foreign taxes of ₹6,39,970 on his Kenyan salary income. He filed his return of income in India on 12.02.2019, claiming credit for such foreign taxes under section 90 read with Rule 128. However, the required Form 67—meant for claiming Foreign Tax Credit (FTC)—was filed on 14.02.2019, i.e., two days after filing the return.
CPC, Bengaluru, while processing the return u/s 143(1), denied the FTC claim & raised a demand of ₹8,83,450. Assessee’s rectification application u/s 154 was rejected, & the CIT(A), NFAC upheld the denial, holding that Rule 128(9) mandatorily required Form 67 to be filed on or before the due date u/s 139(1), failing which the credit could not be granted.
Before the Tribunal, Assessee argued that filing Form 67 is a procedural requirement, not a substantive condition, & that neither section 90 nor the relevant DTAA (India–Kenya) makes FTC conditional upon such procedural compliance. He contended that the credit could not be denied merely because Form 67 was filed after the due date, especially when it was filed before the return was processed.
The Bench referred to its own earlier decisions in Swapan Bhattacharya v. ACIT (ITA No. 242/KOL/2025) & Rahul Anand v. ADIT (CPC, Bengaluru), as well as the Madras High Court’s ruling in Duraiswamy Kumaraswamy v. PCIT (W.P. No. 5834/2022).
