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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 ..... o. 03/2010, dated 2-3- 2010 which clarifies the Explanation to 194A. (3) The learned Respondent passed the order without considering the Board's Circular No.3/2010 dated 2-3-2010 and without laying due emphasis on the citation in case of Bank of Maharashtra v. ITO 38 SOT 432 Ahmedabad Bench of ITAT which considered the Board's Circular No.3/2010 dated 2-3-2010 and held that interest credited as per notional entry was only provisioning the accounts for the purposes of macro monitoring and it was not actual credit or payment of interest to depositors and therefore, section 194A is not applicable. (4) The learned Respondent is not justified in upholding the order of the Assessing Officer in treating the appellant as an assessee in default only on failure to deduct tax at source. Reading together of section 201(1) and proviso to section 201(1) of the Act, clarify that (a) that there shall be failure to withhold tax at source and (b) in addition to that failure, the recipient of the income has also failed to pay the tax directly. (5) That the learned Respondent ought to have considered the following facts: (a) That no constructive credit to the depositor's / payee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Income tax Appeal No. 3480 of 2009, Bombay High Court, and also upon the decision in case of State Bank Of India" Kanpur vs Department Of Income Tax ITAT, Lucknow bench ITA Nos.476 & 477 /LKW /2012. (6) That the Learned Respondent has erred on facts and in law in upholding that the order of the Assessing Officer passed under section 201(1)/201(1A) of the Income Tax Act without adjudicating and appreciating the grounds raised, issue involved and case laws cited in the written argument filed in addition to verbal argument. That the order of the Learned Respondent is Arbitrary, illegal and bad in law liable to be quashed. (7) That the learned Respondent ought to have considered the fact that the so called short remittance has been reverted back to the payee's account and same cannot considered as tax deduction at source. (8) The learned Respondent erred in passing an order by overlooking the proviso to section 201(1) inserted by the Finance Act, 2012 which provides for furnishing of a certificate from an accountant in Form 27BA for which no opportunity is given. That no sufficient and adequate opportunity of being heard was provided to the appellant to furnish certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of charging section. That the learned Respondent has failed to appreciate the fact that the provisions of 201 is only "machinery provisions II and hence demanding the Tax by invoking the provisions from the payer of interest for failure to deduct the tax is erroneous. APPEAL FEE (1) That as per Section 253(6)(d) an appeal made, be accompanied by a fee of Rs. 500/- where the subject matter of appeal relates to any matter other than those specified in clause (a), (b) and (c) of the said section. The appellant has paid the appeal fee of Rs. 500/- by challan. LIMITATION (2) That as per section 253(3) of the Income tax Act the appeal to the Appellate Tribunal shall be made within Sixty days from the date of receipt of order. The appellant received the order on 24-11-2015 and as per the provisions of Act the appeal should be filed on or before 23-01-2016. The appellant is filing the appeal today. PRAYER (3) WHEREFORE, 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bank of Maharashtra Vs ITO (Supra) which reads under; "7. In view of the above Circular of CBDT clarifying TDS provisions by banks using "Core Banking Solutions" Software (CBS), the position is very clear that while deducting tax at source from the payments of interest on time deposits by bank using CBS software, interest payable on time deposits usually calculated on daily basis or monthly basis and is swept and parked in provisioning account for the purposes of macro monitoring. Actually, the credit is given to the depositor's account either at the end of financial year or on a fixed periodic intervals as per practice or rules framed for the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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