TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 1139
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....red in law and on facts in confirming the action of the Assessing Officer in assuming jurisdiction u/S 153A and framing the impugned assessment order u/s 153A/143(3) , more so when it was barred by limitation." 3. The captioned appeals are disposed of on the basis of aforementioned grounds argued before us. 4. The underlying facts in this ground are that a search and seizure operation was conducted on 28.07.2011 on Shri Bhushan Lal Sawhney and others Group of cases on 28.07.2011 and warrant of authorization u/s 132 of the Act included the names Shri Praveen Sawhney and Smt. Sangeeta Sawhney, the captioned appellants. 5. Statutory notices were issued and served upon the assessee and after thorough scrutiny, assessment was framed u/s 153A r.w.s 143(3) of the Act vide order dated 04.03.2015. Challenge before us is that the assessment order so farmed is barred by limitation, as the same ought to have been framed on or before 31.03.2014. 6. The ld. DR vehemently stated that the reason for passing assessment order on 04.03.2015 is that a reference u/s 90 of the Act was made to Swiss authority and no information till the time of passing the assessment order was received, hence the tim....
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....the provisions of 'Exchange of Information' Article of Indo-Switzerland Double Taxation Avoidance Agreement. 3. Efforts are being made for the timely response to your request for administrative assistance and the information will be made available to you as soon as the Exchange of Information Cell receives any response from Competent Authority office. 4. This information is requested under 'Exchange of Information' Article of Indo-Switzerland Double Taxation Avoidance Agreement and its use and disclosure is strictly governed by it. Yours faithfully, Sd/- P.S.SIVASANKARAN US (FT&TR-III) (2)" 10. On the strength of these two letters, the revenue is contending that since a reference has been made to the Swiss Tax Authority, one year extended time became available to the Revenue for passing the assessment order in terms of Explanation IX to Section 153B of the Act and, therefore, the Assessing Officer could pass the assessment order on or before 31.03.2015 and since the assessment order is framed on 04.03.2015, it is well within the period of limitation. 11. Now the entire controversy boils down to the issue whether the aforementioned reference is a valid ....
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....e. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. Notwithstanding the foregoing, information received by a Contracting State may be used for other purposes when such information may be used for such other purposes under the laws of both States and the competent authority of the supplying State authorizes such use. 3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation: (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 (order public). 4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State s....
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....forementioned relevant clauses of the DTAA shows that the same is effective from 01.04.2011. This is further clarified form the following notification: "NOTIFICATION NO. S.O. 2903(E) [NO. 62/2011 (F. NO. - SECTION 90 OF THE OME- TAX ACT, 1961 - DOUBLE TAXATION AGREEMENT - AMENDMENT OF AGREEMENT FOR AVOIDANCE OF DOUBLE TAXATION AND PREVENTION OF FISCAL EVASION WITH FOREIGN COUNTRIES - SWISS CONFEDERATION SECTION 90 OF THE INCOME*TAX ACT, 1961 - DOUBLE TAXATION AGREEMENT - AMENDMENT OF AGREEMENT FOR AVOIDANCE OF DOUBLE TAXATION AND PREVENTION OF FISCAL EVASION WITH FOREIGN COUNTRIES* SWISS CONFEDERATION NOTIFICATION NO. S.O. 2903(E) [NO. 62/2011 (F. NO. 501/01/1973- FTD-I)], DATED 27-12-2011 Whereas a Protocol amending the Agreement between the Republic of India and the Swiss Confederation for the avoidance of double taxation with respect to taxes* on income with Protocol, signed at New Delhi on the 2nd day of November, 1994, as amended by the supplementary Protocol signed at New Delhi on the 16th day of February, 2000, was signed at New Delhi on the 30th day of August, 2010; And whereas the date of entry into force of the said Protocol is the 7th day of October, 2011, bein....
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....le 1. 2. Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to the taxes referred to in paragraph I, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. Notwithstanding the foregoing, information received by a Contracting State may be used for other purposes when such information may be used for such other purposes under the laws of both States and the competent authority of the supplying State authorizes such use. 3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation: (a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; (b) t....
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....R 561and held as under: "Direction of the AO for special audit of assessee's accounts under s. 142(2A) one day before the expiry of limitation for completing the block assessment being merely to get extension of time and AO having asked the special auditor to prepare the books of account in the form of cash book and ledger on the basis of seized documents/papers and also trading and P&L a/c which is apparently beyond the scope of the provisions of s. 142(2A), the direction for special audit was illegal and consequently, the assessment was barred by time" 16. Similarly, the Hon'ble Allahabad High Court in the case of Sadana Electric Stores 219 Taxation 0294 held as under: "Assessment-Time limit for completion-Order passed beyond limitation period-Sustainability-Assessee was subjected to special audit by approval of CIT-Assessee was asked to obtain special audit report u/s 152(2A)-Accounts audited in report was submitted- However limitation for completion of assessment u/s 153(1)(b) expired-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 , 15....
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....arrel before us is as to whether the assessment order framed u/s 143(3) is passed within the period of limitation period prescribed under the Act or not. In our considered opinion, for coming to such a conclusion, we can examine whether the order passed u/s 142(2A) of the Act is in accordance with law or not. It is true that the order passed u/s 142(2A) of the Act is not appealable but when an assessment order is challenged, then the different aspects, which are integral to the process and ultimate completion of the amount can be challenged in appeal and since the ground before us is challenged for assessment being barred by limitation, we are well within our rights to consider all material aspects which were considered while framing the assessment order u/s 143(3) of the Act." 18. The co-ordinate bench in one of the group cases of Late Bhushan Lal Sawhney through his L/H wife Smt. Sneh Lata Sawhney ITA Nos. 427 to 432/DEL/2017 & 434 to 439/DEL/2017 had the occasion to consider 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 ....