TMI Blog2023 (11) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... d that 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. - Shri Vikas Awasthy (Judicial Member) And Ms. Padmavathy S. (Accountant Member) For the Assessee : Shri Hiro Rai Ms. Ritu Punjabi For the Department : Shri H.M. Bhatt, Sr.AR ORDER PER PADMAVATHY S (AM): This appeal is against the order of the Commissioner of Income-tax (Appeals)-47, Mumbai dated 21/10/2022 for A.Y. 2008-09. 2. The assessee is an individual. She is the former wife of Mr.Surendra Hiranandani, who is the co-founder and managing director of Hiranandani group. The assessee was divorced from Mr.Surendra Hiranandani on 04th September, 2009 and subsequently re-married in 28th December, 2009 to Mr. Milan Mehta in whose house she has been residing since then. The assessee filed return of income for the assessment year 2008-09 on 30/09/2008 declaring a total income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee, the various grounds 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 Tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced below We refer to the aforementioned 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 read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the DTAA between India and Switzerland which reads as 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of entry into force of the said Protocol is the 7th day of October, 2011, being the date of later of the notifications of satisfaction of all legal requirements and procedures as required by the respective laws for entry into force of the 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; (b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; (c) to supply 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 declin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee contended that subsequent assessment order passed by AO was time barred Held, in case of Sadana Electric Company vs. Commissioner of Income Tax and another ITA No.167 2008 , 152(2A), identical facts were dealt wherein Court held that section 153(1)(a) reads that no order of assessment shall be made u/s 143 or Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to Swiss authority and reply received by Swiss authority. It would be pertinent to refer to the said observation of the Co-ordinate Bench which reads as under: Learned Counsel for the Assessee also placed on record letter Dated 26.06.2015 issued by Swiss Competent Authority addressed to the Government of India in which it is specifically 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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