TaxTMI 
TaxTMI 
2023 (6) TMI 1544
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....n view of the facts and circumstances of the case, the assessment order dated 05.03.2015 ought to have been quashed on the ground that the assessment order passed u/s 153A r.w.s 143(3) was barred by limitation. 2. In any view of the matter in any case, the assessment order passed on 05.03.2015 is barred by limitation as per the provisions of section 153B more so when reverence u/s 90 could not be made for A. Y 2006-07. 3. That having regards tot eh facts and circumstances of the case, the ld. CIT(A) has erred in law and on facts in confirming the addition of Rs. 1,59,10,486/- [USD 3,57,538] which ould not be so confirmed in view of the decision of the jurisdictional Delhi High Court in the case of CIT Vs. Kabul Chawla 281 CTR 45." 4. Since the additional ground goes to the root of the matter, we decided to address the same first. 5. Briefly stated, the facts of the case are that a search was conducted at the residential premises of the assessee on 23.08.2011. Original return of income for the impugned A.Y. was filed by the assessee on 04.07.2006 declaring income of Rs. 2,13,160/-. During the course of scrutiny assessment proceedings, the Assessing Officer wa....
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....Nambiar] Commissioner of Income Tax Central -1, New Delhi Dated 11 June 2013. Sir/ Madam, Sub: Request for information under 'Exchange of Information' Article of Indo-Switzerland Double Taxation Avoidance Convention - Enquiry into the tax affairs of Mr. Praveen Sawhney - Reg. Your request for administrative assistance from received on 2013- 05-20 on the above mentioned subject has been received in Exchange of Information Cell, Foreign Tax & Tax Research Division of Central Board of Direct Taxes. 2. A request for administrative assistance has been made to the Switzerland Tax Authorities on the 11 June, 2013 by the Joint Secretary, FT & TR - I, the competent authority of India, under 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....
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....rities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic laws concerning taxes covered by the Agreement insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 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 1, 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 un....
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.... carrying out the provisions of this Agreement in relation to the taxes which are the subject of this Agreement. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons other than those concerned with the assessment and collection of the taxes which are the subject of this Agreement. No information as aforesaid shall be exchanged which would disclose any trade, business, industrial or professional secret or trade process. 2. In no case shall the provisions of this Article be construed as imposing upon either of the Contracting States the obligation to carry out administrative measures at variance with the regulations and practice of either Contracting State or which would be contrary to its sovereignty, security or Public policy or to supply particulars which are not procurable under its own legislation or that of the State making application." 14. A perusal of the aforementioned 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 TAXATI....
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....n the said Protocol will be applicable for information that relates to any fiscal year beginning on or after the 1st day of April, 2011. 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 2 NOVEMBER 1994, AS AMENDED BY THE SUPPLEMENTARY PROTOCOL SIGNED AT NEW DELHI ON 16 FEBRUARY 2000 ARTICLE 8 Article 26 [Exchange of information] of the Agreement shall be deleted and replaced by the following Article: Article 26 Exchange of information 1. 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 administration or enforcement of the domestic laws concerning taxes covered by the Agreement insofar as the taxation there under is not contrary to the Agreement. The exchange of information is not restricted by Article 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 l....
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....uested 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." 15. The aforementioned Notification No. 2903 (E) is loud and clear and has specifically mentioned that 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 and if the said notification is read with the reference made by the department, we find that the specific periods for which the reference has been made calling for 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. 16. On a specific query by the bench as to whether any information has been actually received till date, the ld. DR showed his ignorance and inability. This shows that even in the year 2023, the Revenue has not received any information for the transactions prior to 01.04.2011. 17. A reference to the decisions for analogous provisions can throw some light on t....
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.... 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(2A) of the Act in the case of captioned assessee for A. Y 2009-10 is ordered accordingly". This clearly proves that while making a reference u/s 142(2A) of the Act and thereafter passing the order u/s 142(2A) of the Act, the Assessing Officer did not apply his mind and mechanically adopted the figure of A. Y 2009-10 and passed the order u/s 142(2A) of the Act for A.Y 2009-10 without realizing that he is dealing with A. Y 2008-09. 16. The contention of the ld. DR that the letter to the appellant referred to both the A. Ys i.e. 2008-09 and 2009-10 and, therefore, there is no error in the same. We do not find any force in this contention of the ld. DR. As mentioned elsewhere, since each A.Y is considered as a separate unit the Ass....