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TMI Blog2017 (3) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... e of passing the impugned orders - 2 to 5 (Bang)/2016 - - - Dated:- 16-9-2016 - SHRI A.K.GARODIA, ACCOUNANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER For The Assessed : Sheri Tulajappa Kalburgi, Advocate For The Revenue : Sheri AR V. Sreenivasan, JCIT ORDER PER A. K. GARODIA, A.M.: All these four appeals are filed by the assessee which are directed against a combined order passed by the ld. CIT(A), Gulbarga dated 09-11- 2015 for the assessment years 2008-09 to 2011-12. All these appeals were heard together and are being disposed of by way of this common order for the sake of convenience. 2. The grounds raised by the assessee in its appeals are as under; (1) Th a t the learned Respondent is erred in con f irming the order of the Assessing Officer without la y ing the due emphasis on explanation to section 191 which pro v ide s that prim a r y liabilit y of pa y ment of income tax i s on the assesse to whom the income belongs . (2) That the learned Respondent is erred in confirming the de mand U 1 s. 201 (1) and 2 01 (1A ) w ithout l ayi n g th e due emphasi s on th e CBDT Circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order without first exhausting the remedies provided under section 191 of the IT Act . The learned Respondent failed to appreciate that the onus is on the revenue to demonstrate that the taxes have not been reco v ered from the person to whom interest is credited and the y are the primaril y liability to pay tax. There is no mention of step taken by the Department in the Order of the Assessing Officer for recovery of tax from the person/ s to whom interested was credited. (f) That the learned Respondent ought to have consider the fact that the appellant cannot be treated as an asse s see in default till it is found that the person who received the interest from the appellant has failed to pay tax directly. (g) That the learned Respondent failed to appreciate the fact that the Assessing Officer fails to prove sufficient and adequate opportunity of being hard to the appellant to furnish certificate from the accountant and hence violated the principles of natural justice. ( h ) T hat th e learned Respondent has failed to appr ecia te that th e pr o ceeding unde r se cti o n 201(1) is also as s essment proce e ding. T h e orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Respondent failed to consider the fact that de c larat i on is made under section 197 A b y pa y ee to the pa y er and the payer has no choice except to desist from deducting tax from the pa y ment . The sub-section use s th e w ord shall w hich lea v es no choice to the pa y er in the matter . ( 10) The learned Respondent ought to have considered the fact that the pa y er cannot be blamed because at the time of pa y ing the amount , pa y er has to rel y upon the de c larations filed b y the pa y ee e v en though it is incomplete and e v en though the pa y er has failed to submit the cop y of s a me to the CIT. The pa y er is not expected to embark upon an enquir y as to whether the pa ye e in realit y h ave no taxable income on which tax is payable or direct to fill the data in all respect . ( 1 1) That the learned Respondent ought to h ave consid e r e d the fact that ev en if the pa y ee has dela y ed the filing of the de c larat i on s with th e pa y er within the tim e limit, the pa y er has no power to reject it, instead it needs to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the provisions of Act the appeal should be filed on or before 23-01-2016. The appellant is filing the appeal today. PR AYE R (3) W H ER EF OR E, the appellant most respectfully prays on aforesaid grounds and among other grounds that will be urged at the time of hearing that this Hon'ble Tribunal may be pleased to: (i) To admit the appeal and allow this appeal. And to set aside the order passed under section 201(1)/201(1A) of the Income Tax Act (ii) Set aside ad cancel the demand of Tax and interest (iii) that your honour may be pleased to pass such orders as the facts and circumstances of the case may require. GROUNDS FOR INTERIM PRAYER (4) That is most respectfull y submitted that unless interim order sought for are granted, the appellant will be put to irreparable hardship and injur y . Th e appellant have v alid grounds and it is just and necessar y to sta y the operation of recover y till the disposal of appeal . Hence the need for interim relief . INTERIM PRAYER (5) Pending disposal of this appeal, the appellant respectfull y pra y that this Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same, or as per the depositor s requirement or on maturity or encashment of time deposits, as the case may be. In such a situation, the TDS is not possible at the time of calculation of interest payable on daily basis or monthly basis under the scheme of swept and parked in provisioning account for the purposes of macro-monitoring. The Board has clearly clarified the position and the facts are exactly identical in the present case that the interest credited as per notional entry dated 29-09-2001 is only provisioning in the accounts for the purposes of macro monitoring and it is not actual credit of payment of interest to the depositors. This notional provision was made and as is evident from record, which was reversed on next working day, the amount so credited as never accrued to the payee. Accordingly, we are of the view that the lower authorities i.e. the Assessing Officer as well as the CIT(A) has carried the matter under misconception and wrong presumptions. Accordingly, this issue of the assessee s appeal is allowed . 7. As per the above Para reproduced from the order of the Tribunal, it is seen that in that case, the tribunal has given a finding that as is evident fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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