TMI Blog2023 (7) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... r information is 01.04.1995 to 31.03.2012. Therefore, qua the notification, information called by the Revenue by issuing the said reference was invalid for the period prior to 01.04.2011. We are of the considered view that the information called for by the department from Swiss authorities could not have been received by them for the period prior to 01.04.2011. Therefore, it would be a futile exercise to wait for such information, and that too, by an invalid reference. Therefore, in our considered opinion, the period of limitation could not be extended as claimed by the Revenue. The impugned assessments are clearly bared by limitation and deserve to be quashed. - ITA No. 1539 to 1544/DEL/2017 And ITA No. 1640 to 1645/DEL/2017 And ITA No. 1647 to 1652DEL/2017 And ITA No. 1633 to 1638/DEL/2017 - - - Dated:- 18-5-2023 - Shri N.K. Billaiya, Accountant Member, And Ms. Astha Chandra, Judicial Member For the Assessee : Shri Rakesh Gupta, Adv, Shri Somil Agarwal, Adv, Shri Tarun Kumar, Adv And Shri Deepesh Garg, Adv For the Department : Shri H.K. Choudhary, CIT- DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- The bunch of above captioned appeals by two diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation Article of the DTAA with Switzerland on the fact that the appellant appears to have opened a bank account through information so sought relating to bank account number, copy of bank account opening form, statement of bank account for the period beginning from 01.04.1995 to 31.03.2012. 9. The letters issued by the department and heavily relied upon by the ld. DR are as under: Dated 14.05.2013 The Under Secretary (FT TR-IV) CBDT, Department of Revenue Hudco Vishala Building 9 floor, Bhikaji Cama Place New Delhi. Sir, Subject: Request for information from Swiss Tax authority under DTAA through FT TR- division of CBDT - regarding Please refer to above, I am enclosing here with proforma/checklist duly filled in the specific proforma in the following cases for seeking information FT TR section of the CBDT in relation to Swiss Tax authority under DTAA 1. Sangita Sawhney 2. Praveen Sawhney 3. Sneh Lata Sawhney. Yours faithfully, Sd/- [Meeta Nambiar] Commissioner of Income Tax Central -1, New Delhi Dated 11 June 2013. Sir/ Madam, Sub: Request f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 double taxation with respect to taxes on income, have agreed to XXXX XXXX XXXX ARTICLE 26 EXCHANGE OF INFORMATION I. The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 their respective taxation laws in the normal course of administration) as is necessary for carrying out the provisions of this Agreement in relation to the taxes which are the subject of this Agreement. Any information s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tocol 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 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 1st day of April, 2011. PROT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosure 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, therefore, have the power to enforce the disclosure of information covered by this paragraph, notwithstanding paragraph 3 or any contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 27.12.2011 which is exhibited at pages 91 to 98 of the paper, the ACIT has specifically mentioned that the special audit u/s 142 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 could not have been received by them for the period prior to 01.04.2011. Therefore, it would be a futile ..... X X X X Extracts X X X X X X X X Extracts X X X X
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