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TMI Blog2023 (11) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the claim of the revenue that period of limitation is extended by one year under section 153B based on the reference is not tenable and in assessee s case, the assessment should have been completed on or before 31/12/2015. Accordingly the order passed by the A.O. 153A read with section 143(3) dated 29/12/2016 is clearly barred by limitation and is liable to be quashed. X X X X Extracts X X X X X X X X Extracts X X X X ..... nds raised with respect to the merits of the case becomes academic. Therefore, we will first take up the additional ground for adjudication. 7. The contention of ld AR is that the order of the assessing officer dated 29.12.2016 is barred by limitation. In this regard the Ld.AR submitted that that the search in the case of the assessee was conducted on 11/03/2014 and therefore as per the provisions of section 153B(i), the assessment should have been completed by 31/12/2015. However the assessing officer completed the assessment on 29.12.2016 which, according to the Ld.AR, is beyond the time limit. The Ld.AR in this regard drew our attention to the order of assessment where the assessing officer has recorded that due to reference to FT & TR, the time period for completion of assessment under section 153A is extended by a year as per the provisions of Explanation (ix) to section 153B of the Act. The ld AR argued that the claim of the assessing officer that extended time limit is applicable to assessee's case is not correct. The Ld.AR to support his arguments submitted that FT&TR information is sought under Article 26 of the Indo Swiss Treaty and there was an amendment which was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned request for administrative assistance dated 8 August 2016 The research revealed that during the relevant time period from 1 April 2011 to 31 March 2014 no relationship between J.P.Morgan (swiss) SA and Ms.Priti Surendra HIRANANDAVI (now known as Priti Mila MEHTA) existed. Kindly confirm receipt of this letter Please do not hesitate to contact us should you have any questions" 10. The issue under consideration pertains to whether the reference made by the revenue to Swiss authorities requesting for information under Article 26 of Indo swiss treaty for provision of exchange of information pertaining to the assessee for AY 2008-09 is valid thereby providing the extension of one year to assessing officer for completing the assessment under Explanation (ix) to section 153B of the Act. The revenue mainly relies on the reference made by the assessing officer on 08.08.2016 for information through FT&TR which provides the extended time limit by one year under Explanation (ix) to section 153B of the Act to the assessing officer to complete the assessment. The relevant provisions of under Explanation (ix) to section 153B reads as under - "(ix) the period commencing from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: SWISS CONFEDERATION Whereas the annexed Agreement between the Government of the Republic of India and the Government of the Swiss Confederation for the avoidance of double taxation with respect to taxes on income has entered into force on 29th December, 1994, after I he notification by both the Contracting States to each other of the completion of the procedures required under their laws for cringing into force of the said Agreement in accordance with paragraph 1 of Article 26 of the said Agreement; Now, therefore, in exercise of the powers conferred by section 90 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby directs that all the provisions of the said Agreement shall be given effect to in the Union of India. NOTIFICATION : NO.GSR 357(E), DATED 21-4-1995, AS AMENDED BY NOTIFICATION NO.GSR 74(£), DATED 7-2- 2001 AND NOTIFICATION NO. SO 2903(E), DATED 27-12-2011 ANNEXURE AGREEMENT BETWEEN THE REPUBLIC OF INDIA AND THE SWISS CONFEDERATION FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME The Government of the Republic of India and the Swiss federal council Desiring to conclude an Agreement for the avoidance of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he preceding sentence is subject to the limitations of Paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information because it has no domestic interest in such information. In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person. In order to obtain such information, the tax authorities of the requested Contracting State shall, therefore, have the power to enforce the disclosure of information covered by this paragraph. notwithstanding paragraph 3 or any contrary provisions in its domestic laws." 10. Substituted by Notification No. SO 2903(E), dated 27-12- 2011. Prior to its substitution, Article 26 as amended by Notification No. GSR 74(E), dated 7-2-2001 read as under: "ARTICLE 26 EXCHANGE OF INFORMATION I. The competent authorities of the Contracting States shall exchange such information (being information which is at their disposal under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Protocol, in accordance with Paragraph 2 of Article 14 of the said Protocol; And whereas sub-paragraph (a) of Paragraph 2 of Article 14 of the said Protocol provides that the provisions of the said Protocol shall have effect in India in respect of income arising in any fiscal year beginning on or after the first day of April next following the calendar year in which the Amending Protocol entered into force; And whereas Paragraph 3 of Article 14 of the said protocol provides that with respect to Article 26 of the Agreement, the exchange of information provided for in the said Protocol will be applicable for information that relates to any fiscal year beginning on or after the first day of January of the year next following the date of signature of the said Protocol; Now, therefore, in exercise of the powers conferred by section 90 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby directs that all the provisions of the said Protocol, as set out in the Annexure hereto, shall be given effect to in the Union of India in respect of income arising in any fiscal year beginning on or after the 1 st day of April, 2012 and with respect to Article 26 of the Agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (ordre public). 4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information. 4. In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person. In order to obtain such information, the tax authorities of the requested Contracting State shall, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 144 at any time after expiry of two years from end of A.Y. in which income was first assessable--Order of assessment had been passed in violation of period prescribed in aforesaid provision, therefore, order passed by AO, CIT and ITAT was set aside--Therefore order passed by lower authorities including Tribunal could not be sustained as facts and circumstances were identical." 17. Similar view was taken by the co-ordinate bench in the case of Consulting Engineering Services India Pvt Ltd & Anr. 198 TTJ 0121 [Del]. Relevant findings read as under: "15. We have given a thoughtful consideration to the orders of the authorities below and have carefully perused the records qua the issue. It is true that noticed dated 21.11.2011 was for both the A.Ys i.e. 2008-09 and 2009-10. However, each A.Y is considered to be a separate unit and, therefore, for each A.Y, the Assessing Officer must bring out his case. A perusal of the said notice, which is exhibited at pages 67 to 70 of the paper book, clearly reveals that though the notice pertained to accounts of A.Y 2008-09, but entire financial details referred to therein pertain to A.Y 2009-10. Even the order u/s 142(2A) of the Act dated 27.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically mentioned that information as required could be provided from F.Y. 2011-2012 as the prior years are not covered by temporal scope of Article 26 of the Amended Double Taxation Avoidance Agreement between India and Switzerland. Therefore, such information could be provided from 01.04.2011. Learned Counsel for the Assessee also placed on record Notification Dated 27.12.2011 between India and Switzerland Confederation for avoidance of double taxation. These would clearly show that these are applicable after assessment years under appeals and as per information provided vide letter Dated 26.06.2015 no such information could be provided prior to 01.04.2011. Therefore, Swiss Authorities have not provided any information to Revenue Authorities in India about assessee's bank account with HSBC, Geneva, Switzerland ITA.Nos.427 to 432/Del./2017 & ITA.Nos.434 to 439/Del./2017 Late Shri Bhushan Lal Sawhney through his L.R./ Wife Smt. Sneh Lata Sawhney, New Delhi. for assessment years under appeals i.e., A.Ys. 2006-2007 to 2011- 2012." 19. In light of the aforementioned discussion, we are of the considered view that the information called for by the department from Swiss authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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