TMI Blog2015 (12) TMI 1546X X X X Extracts X X X X X X X X Extracts X X X X ..... w this Court as to which Appellate Authority, or by which Court the issues involved in the present case have already been decided, that, too, in favour of the petitioner-Bank. Thus, obviously, the petitioner-Bank cannot claim that it falls under illustration (a) of para-C of Instruction No.1914. For a statutory duty has been imposed upon the Bank to deduct the TDS. In case the Bank does not deduct the TDS, it has to face the consequences as mentioned in Section 201 of the Act. Since Section 249(4) of the Act imposes a duty upon the assessee to deposit the entire amount, before that appeal can be admitted, the Bank cannot escape from its liability to follow the mandate of Section 249(4) of the Act. Although Instruction No.1914 does create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est paid to the VTU, because by letter dated 03.09.2014, the VTU had informed the Bank that the University is exempted from filing the returns under Section 10(23C)(iiiab) Section 139 of the Act. The Bank further claimed that since it had no reason to disbelieve the assertion made by the payee-VTU, it did not deduct the TDS. 3. Not satisfied by the explanation offered by the petitioner-Bank, on 29.12.2014, the ITO issued a show cause notice to the petitioner, calling upon it to explain why it should not be considered as an assessee in default, for failing to make the TDS under Section 194A of the Act. Subsequently, on 16.01.2015, the ITO issued summons under Section 131 of the Act, and also sent a letter to the petitioner-Bank calling up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itten submissions before the Commissioner (Appeals) and prayed that the disputed demand be stayed and that the ITO should be directed not to treat the petitioner as an assessee in default until disposal of the appeals pending before the Commissioner (Appeals). However, by order dated 15.04.2015, the learned Commissioner (Appeals) has rejected the application for stay, but has assured the petitioner-Bank that its appeal would be considered on priority basis. Hence the present petition before this Court. 8. Mr. B. S. N. Prasad, the learned counsel for the petitioner, has contended that, while Section 201 of the Act lays down the consequence of failure to deduct the tax at source, the proviso attached to Section 201(1) of the Act creates an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded in the Assessment Order, the learned counsel could not show that such contention had, indeed, been raised before the ITO. Therefore, this Court is of the opinion that the said contention was not raised before the ITO, although it may have been mentioned in the written submission filed by the Bank. In catena of cases, the Hon ble Supreme Court has opined that, if any contention is contained in the written submission, but unless and until it is recorded and reflected in the impugned order, the Court shall presume that the said contention was not raised before the concerned authority or the Court. 11. A bare perusal of the assessment order clearly reveals, that the stand taken by the petitioner-Bank was that since they were informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion legally or illegally? According to the proviso, in case the Commissioner were to grant any exemption from the payment of the amount equal to the amount of advance tax, he should record his good and sufficient reason in writing. 16. A bare perusal of the impugned order clearly reveals that the learned Commissioner has opined that, since the petitioner-Bank does not fall within any of the illustrations contained in para C of the Instruction No.1914, the benefit of staying the demand cannot be given to the petitioner-Bank. 17. Of course the learned counsel for the petitioner has pleaded that the petitioner-Bank does fall within the illustration (a) of para C of instruction No.1914 which is as under: C .. (a) if the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not deduct the TDS, it has to face the consequences as mentioned in Section 201 of the Act. Since Section 249(4) of the Act imposes a duty upon the assessee to deposit the entire amount, before that appeal can be admitted, the Bank cannot escape from its liability to follow the mandate of Section 249(4) of the Act. Although Instruction No.1914 does create exception to Section 249(4) of the Act, as mentioned above, the petitioner-Bank cannot take any benefit from Instruction No.1914, as it does not come within the ambit and scope of the said instruction. 20. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. These petitions, being devoid of any merit, are hereby dismissed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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