State Bank of India, Hospet V. CIT, Bangalore

ITA 2/BANG/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9357 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHERI AR V SREENIVASAN
• Assessee Lawyers: SHERI TULAJAPPA KALBURGI
• Keywords: Recovery proceedings; Principle of natural justice
• Section: 201(1); 32; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B, BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NOS. A.Y. APPELLANT V S RESPONDENT 1 2 TO 5 (BANG)/2016 2008-2009 TO 2011-2012 STATE BANK OF INDIA, HOSPET CITY BRANCH, COLLEGE ROAD, HOSPET PAN NO.BLRS23899B CIT(A), GULBARGA ASSESSED BY : SHERI TULAJAPPA KALBURGI, ADVOCATE REVENUE BY : SHERI AR V. SREENIVASAN, JCIT DATE OF HEARING : 08-08-2016 DATE OF PRONOUNCEMENT : 16-09-2016 O R D E R PER A. K. GARODIA, A.M.: ALL THESE FOUR APPEALS ARE FILED BY THE ASSESSEE WH ICH 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 WA Y OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE ASSESSEE IN ITS APPEAL S ARE AS UNDER; ITA NOS.2 TO 5(BANG)/2016 2 (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 CONFIRM ING 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 CIRCULAR NO. 03/2010, DAT ED 2-3- 2 010 W HI C H C L ARIF I ES TH E EX PLANATION TO 194A . ( 3) T H E L E ARNED RESPOND E NT PASSED THE ORDER WITHOUT CONSIDERING TH E BOARD ' S CIRC ULAR N O.3/ 2010 DATED 2- 3 -2010 AND WITHOUT LA Y ING DUE EMPH A SIS ON THE CITATION IN CASE OF BA NK OF MAHARA S HTRA V. ITO 38 SO T 4 3 2 AHMEDAB A D B E NCH OF IT AT WH I C H CON S ID E RED THE BO A RD ' S CIRCULAR NO .3 /2010 DAT E D 2-3-2010 AND HELD TH AT IN TEREST CR E DITED AS P E R NOTIONAL ENTR Y WAS ONL Y PRO V ISIONING THE ACCOUNTS FOR T HE P URPOSES O F MAC R O MONIT ORI N G A ND IT WAS NOT ACTUAL CR E DIT OR PA Y MENT OF INTE REST TO D E PO S ITOR S AND TH ER EFORE, SECTION 19 4 A IS NOT APPLICABL E . ( 4 ) T H E L E A R N E D RE S P O ND E NT IS NOT JUSTIFIED IN UPHOLDING TH E ORDER OF T H E ASS ES S ING O FF I CE R IN TR E ATIN G THE APPELLANT A S AN ASSE S SE E IN DEFAULT ONL Y O N FA ILURE T O DEDUCT T AX A T SOUR C E. RE A DING TOGETHER OF S E CTION 201(1) AND PRO V IS O TO SE CTION 2 01(1) OF THE ACT, CLARIFY THAT (A) THAT THERE SHALL BE FAILU RE TO WITHHOLD TAX AT SOURCE AND (B) IN ADDITION TO THAT FAILURE, THE RECIPIENT OF THE INCOME HAS ALSO FAILE D 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 / PA Y EE'S ACCOUNT TAKES PLACE WHILE CALCULATING INTEREST ON TIME DEPOSITS ON DAIL Y OR MONTHLY BASIS IN THE CBS SOFTWARE USED BY BANKS. (B) THAT BANKS USING CBS SOFTWARE AND INTEREST PAYA BLE ON TIME DEPOSITS IS CALCULATED GENERALLY ON DAILY B ASIS OR MONTHLY BASIS AND IS SWEPT & PARKED ACCORDINGLY IN THE PROVISIONING ACCOUNT FOR THE PURPOSES OF MACRO- MONITORING ONLY. (C) THAT THE ORDER UNDER SECTION 201(1) & 201(1A) HAS BEEN PASSED BY THE ASSESSING OFFICER WITHOUT CONSIDERING THE CBDT CIRCULAR NO. 03/2010, DATED 2- 3- 2010 . ITA NOS.2 TO 5(BANG)/2016 3 (D) THAT THE ORDER UNDER SECTION 201(1) & 201(1A) HAS BEEN PASSED WITHOUT CONSIDERING THE PRINCIPLES SETT LED BY THE HONORABLE HIGH COURT OF KARNATAKA IN THE CAS E OF CIT & AM. V. INTEL TECH INDIA PVT . LTD. [2011] 55 DTR (KAR) 173 . (E) THE ASSESSING OFFICER PASSED THE 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 FO R RECOVERY OF TAX FROM THE PERSON/ S TO WHOM INTEREST ED WAS CREDITED. (F) THAT THE LEARNED RESPONDENT OUGHT TO HAVE CONSI DER 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 APPRECIAT E 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 V IOLATED 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 ORDER U/ S 201(1) IS AKIN TO THE ASSESSMENT AND FOR RE-A S SESSM E NT TH E A S SESSING OFFICER S HOULD RECORD THE REASON S AND ISSUE NOTI C E UND E R S ECTION 1 48 O F THE IT A CT . THE RE A SO NABL E TIM E F OR INITIATING AND COMPL E T I N G TH E P ROCEE DINGS UNDE R S ECTION 201(1) H A S TO BE AT PAR WITH THE TIM E LIMIT A VAI L A BL E FOR INITIATING AND COMPLETING THE R EASSESSMENT AS THE ASSESSMENT INCLUDE S R E ASSESSMENT . RELIANCE I S PL A C E D UPON THE DECISION IN CASE OF DIRECTOR OF INCOM E TAX V S M/S MAHINDRA & MAHINDRA LIMITED, INCOM E TA X APPEAL NO. 3 480 OF 2009 , BOMBA Y HIGH COURT, AND A LSO UPON THE DECI S ION I N C ASE OF ST A T E BANK OF INDI A' KANPUR V S DEPARTMENT OF INCOME TAX I T A T, L U C KNO W BENCH I T A N O S . 476 & 477 /LKW /2012. (6) T H AT THE LEARNED RE S PONDENT HAS ERRED ON F ACT S A ND IN LA W IN UPHOLDING THAT THE O RD E R OF THE ASSES S ING OFFICER PASSED UNDER S E CTION 201(1)/201(1A) OF THE INCOME TAX ACT WITHOUT ADJUDICATING AND APPRECIATIN G TH E GROUND S RAI S ED, ISSU E IN V OL VED A N D CA S E LA W S CITED IN ITA NOS.2 TO 5(BANG)/2016 4 THE WRITTEN ARGUMENT FILED IN ADDITION TO VERBAL ARGUME NT . T H A T THE ORDER OF TH E LEARNED RESPONDENT IS ARBITRAR Y , ILLEGAL AND BAD IN L AW L I AB L E TO BE QUA S H E D . (7) T H A T THE LEARNED R ES PONDENT OUGHT TO HA V E CON S IDERED TH E F ACT THAT TH E SO CA LLE D SHOR T R E MITTANC E H AS B EE N REVERTED BACK T O TH E P AY EE ' S ACC O UNT A ND SA M E C AN NOT CO N S IDER E D AS TAX D E DUCTION AT SOURCE. (8) T H E LEARNED RE S PONDENT ERRED IN PASSING AN ORDER B Y O V ERLOOKING TH E PR OV I S O TO S ECTION 201(1) INSERTED B Y THE FINANCE ACT , 2012 WHICH PRO V ID ES F OR F U R N IS HING OF A C E RTIFICATE FROM AN ACCOUNTANT IN FORM 2 7 BA F O R WHICH NO OPPORTUNIT Y I S GI V EN. T HAT NO SUFFI C IENT AND ADEQUATE OPPORTUNIT Y O F B E ING HEARD WAS PR OVIDED T O THE APPELLANT TO FURNISH CERTIFICATE FROM THE ACCOUNT A NT AND H E N C E V IOLATE THE PRIN C IPLES OF NATURAL JUSTICE. ( 9 ) 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 BE CONSIDERED B Y THE PA YE R IN REVERTING BACK THE TDS IF SAME IS NOT REMITTED TO THE CENTRAL GO V T . ACCOUNT . ( 1 2 ) THAT THE ORDER O F THE LEARNED RESPONDENT IS HIT B Y ARTI C L E 19(1)( G ) O F THE CON S TITUTION . NO ' ASSESSEE ' CAN BE CONSIDERED AS AN ' ASSESSEE IN DEFAULT' UNL ESS A ITA NOS.2 TO 5(BANG)/2016 5 DEMAND NOTICE UNDER SECTION 156 HAD BEEN GIVEN TO H IM. ACCORDING TO SEC TION 156 O F TH E IT ACT DEM A ND NOTICE CAN BE SER V ED ONL Y ON A CCOUNT O F T AX, INT EREST , P E NALT Y F IN E OR OTH E R S UM PA Y A BL E IN CONSEQUENCE OF AN Y ORDER PA SS ED UNDER TH E AC T . IN S UBSTANCE, TAX LIABILIT Y SHALL BE DETERMINED B Y AN ORDER FOR ISSUING THE DE M A ND NOTI C E. BUT THE SECTION 201(1) DEEM THE ASSESSEE IN DEFAULT BEFORE M A K I N G AN Y ORD E R AND THEREFORE HIT B Y ARTICLE 19(1)(G) OF THE CONSTITUTION. ( 1 3) THAT SUB-SECTION 6 AND 6A COVERS ALL SITUATIONS AND CONT I N GE N CIES, A ND MAKES THE LIABILITY ABSOLUTE, LIMITED ON DEDUCTOR. THE SUB-SECTION DOES NOT PROVIDE FOR ISSUE OF NOTICES, ASSESSMENT, COLLECTION OR ANYTHING CONNECT ED WITH THE IMPOSITION, LEVY AND COLLECTION OF THE TAX . SECTION (4) OF THE INCOME TAX ACT IS THE CHARGING S ECTION AND ACCORDING TO SAID SECTION, TAX IS LEVIED UPON ASSESSEE DEPENDING UPON INCOME ACCRUED IN THE PREVI OUS YEAR AND NOT UPON THE INCOME EARNED BY OTHER PERSON S . INVOKING THE PROVISIONS OF SECTION 201 AND (201(1A) IS ERRONEOUS AND OVERRIDES THE PROVISIONS OF CHARGING SECTION. THAT THE LEARNED RESPONDENT HAS FAILED TO APPRECIATE THE FACT THAT THE PROVISIONS OF 201 IS O NLY 'MACHINERY PROVISIONS II AND HENCE DEMANDING THE TAX BY INVOKING THE PROVISIONS FROM THE PAYER OF INTERE ST FOR FAILURE TO DEDUCT THE TAX IS ERRONEOUS. APP E A L FEE (1) THAT AS PER SECTION 253(6)(D) AN APPEAL MADE, B E ACCOMPANIED BY A FEE OF RS. 500/- WHERE THE SUBJECT MATTER OF APPEAL RELATES TO ANY MATTER OTHER THAN T HOSE SPECIFIED IN CLAUSE (A), (B) AND (C) OF THE SAID SE CTION. THE APPELLANT HAS PAID THE APPEAL FEE OF RS. 500/ - BY CHALLAN. LIMITATION (2) THAT AS PER SECTION 253(3) OF THE INCOME TAX AC T THE APPEAL TO THE APPELLATE TRIBUNAL SHALL BE MADE WITH IN SIXTY DAYS FROM THE DATE OF RECEIPT OF ORDER . THE APPELLANT RECEIVED THE ORDER ON 24-11-2015 AND AS P ER THE PROVISIONS OF ACT THE APPEAL SHOULD BE FILED ON OR BEFORE 23-01-2016. THE APPELLANT IS FILING THE APPE AL TODAY. ITA NOS.2 TO 5(BANG)/2016 6 PR AYE R (3) W H ER EF OR E, THE APPELLANT MOST RESPECTFULLY PRAYS ON AFORESAID GROUNDS AND AMONG OTHER GROUNDS THAT W ILL 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 INTE REST (III) THAT YOUR HONOUR MAY BE PLEASED TO PASS SUCH ORDERS AS THE FACTS AND CIRCUMSTANCES OF THE CASE M AY 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'BLE TRIBUNAL MAY BE PLEASED GRANT THE STAY OF THE IMPUGNED ORDER. THE APPELLANT IS FILED AN APPLICATION FOR STAY FOR DEMA ND RAISED B Y THE ASST . COMMISSIONER OF INCOME TAX TDS CIRCLE, BELLAR Y IN FORM AS MENTION IN APPENDIX X(E). PENDING DISPOSAL, THE APPELLANT RESPECTFULL Y PRAYS THIS HON'BLE TRIBUNAL MA Y PLEASE GRANT ORDER FOR WAIVER OF PRE DEPOSIT TILL THE APPEAL IS DECIDED. 3. IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT IN THE CASE OF BANKS USING CBS SOFTWARE, INTEREST PAYABLE ON TIME DEPOSITS IS CALCULATED GENERALLY ON DAILY BASIS OR MONTHLY BASIS AND IS SW EPT & PARKED ACCORDINGLY IN THE PROVISIONING ACCOUNT FOR THE PUR POSE OF MACRO ITA NOS.2 TO 5(BANG)/2016 7 MONITORING ONLY BUT CONSTRUCTIVE CREDIT IS GIVEN TO THE DEPOSITORS/PAYEES ACCOUNT EITHER AT THE END OF THE FINANCIAL YEAR OR AT PERIODIC INTERVALS AS PER PRACTICE OF THE BANK OR AS PER THE DEPOSITORS/ PAYEES REQUIREMENT OR ON MATURITY OR ON ENCASHMENT OF TIME DEPOSITORS WHI CHEVER IS EARLIER. HE SUBMITTED THAT UNDER SIMILAR FACTS, IT WAS HELD BY THE TRIBUNAL IN THE CASE OF BANK OF MAHARASHTRA VS ITO IN ITA NO.2419(A HD/2007 DATED 16- 03-2010 THAT NO TDS WAS REQUIRED TO BE DEDUCTED BY THE ASSESSEE ON SUCH MACRO ACCOUNTING AS PER CBS SOFTWARE. HE SUBM ITTED A COPY OF THE TRIBUNAL ORDER AND DRAWN OUR ATTENTION TO PARA-7 OF THIS TRIBUNAL ORDER. HE ALSO PLACED RELIANCE ON ANOTHER TRIBUNAL ORDER R ENDERED IN THE CASE OF ITO VS STATE BANK OF INDIA, KANPUR IN ITA NOS.476 & 477(LUCK)/2012 DATED 25-04-2013 AND SUBMITTED A COPY OF THIS TRIBU NAL ORDER ALSO. 4. THE LD. DR OF THE REVENUE SUPPORTED THE ORDER O F THE LD. CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. 6. FIRST OF ALL, WE REPRODUCE PARA-7 OF THE TRIBUN AL ORDER RENDERED IN THE CASE OF BANK OF BANK OF MAHARASHTRA VS ITO ( SUPRA) WHICH READS UNDER; 7. IN VIEW OF THE ABOVE CIRCULAR OF CBDT CLARIFYIN G TDS PROVISIONS BY BANKS USING CORE BANKING SOLUTIONS SOFTWARE (CBS), THE POSITION IS VERY CLE AR THAT WHILE DEDUCTING TAX AT SOURCE FROM THE PAYMENTS OF INTEREST ON TIME DEPOSITS BY BANK USING ITA NOS.2 TO 5(BANG)/2016 8 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 DEPOSITORS ACCOUNT EITHER A T THE END OF FINANCIAL YEAR OR ON A FIXED PERIODIC INTERV ALS AS PER PRACTICE OR RULES FRAMED FOR THE SAME, OR AS PER THE DEPOSITORS REQUIREMENT OR ON MATURITY OR ENCASHMENT OF TIME DEPOSITS, AS THE CASE MAY BE. I N SUCH A SITUATION, THE TDS IS NOT POSSIBLE AT THE TI ME OF CALCULATION OF INTEREST PAYABLE ON DAILY BASIS O R 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 PROVISIONIN G IN THE ACCOUNTS FOR THE PURPOSES OF MACRO MONITORIN G 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 ASSESS ING OFFICER AS WELL AS THE CIT(A) HAS CARRIED THE MATTE R UNDER MISCONCEPTION AND WRONG PRESUMPTIONS. ACCORDINGLY, THIS ISSUE OF THE ASSESSEES 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 GIVE N A FINDING THAT AS IS ITA NOS.2 TO 5(BANG)/2016 9 EVIDENT FROM THE RECORD, THE ENTRY WAS REVERSED ON THE NEXT WORKING DAY AND THEREFORE, THE AMOUNT SO CREDITED HAS NEVER ACC RUED TO THE PAYEE. IN THE PRESENT CASE, NO SUCH EVIDENCE HAS BEEN BROUGHT ON RECORD HAT INTEREST CREDITED AS PER THIS SOFTWARE WAS ONLY A N OTIONAL PROVISION AND THE SAME WAS REVERSED AFTERWARDS. BUT THIS IS ALSO AN UNDISPUTED FACT THAT THE BANK IS USING CBS SOFTWARE AS IN THAT CASE . HENCE, WE FEEL IT PROPER THAT THE MATTER SHOULD BE RESTORED BACK TO T HE FILE OF THE AO FOR A FRESH DECISION IN THE LIGHT OF THIS TRIBUNAL ORDER RENDERED IN THE CASE OF BANK OF MAHARASHTRA (SUPRA) AND IF THE ASSESSEE IS ABLE TO ESTABLISH THAT IT WAS ONLY A NOTIONAL PROVISION WHICH WAS REVERSED AFTERWARDS THEN NO TDS LIABILITY CAN BE IMPOSED ON THE ASSESSEE. WE OR DER ACCORDINGLY. 8. REGARDING THE TRIBUNAL ORDER RENDERED IN THE CA SE OF ITO VS STATE BANK OF INDIA (SUPRA), WE FIND THAT THIS TRIB UNAL ORDER IS NOT RENDERING ANY HELP TO THE ASSESSEE IN THE PRESENT C ASE BECAUSE IN THAT CASE, IT WAS HELD BY THE TRIBUNAL THAT THE AO SHOUL D PASS ORDER U/S 201(1) AND 201(1A) WITHIN A REASONABLE TIME I.E. WI THIN SIX YEARS AT THE END OF THE ASSESSMENT ORDER AND IN THAT CASE, THE I MPUGNED ORDER WAS PASSED AFTER MORE THAN 10 YEARS AND THEREFORE, THE SAME WERE BARRED BY LIMITATION. IN THE PRESENT CASE, THE ORDERS U/S 20 1(1) & 201(1A) OF THE IT ACT WERE PASSED BY THE AO ON 29-09-2014 AND THE EAR LIEST ASSESSMENT YEAR INVOLVED IS 2008-09 AND THEREFORE, IT IS SEEN THAT SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR HAS NOT ELAPSED AT THE TIME OF ITA NOS.2 TO 5(BANG)/2016 10 PASSING THE IMPUGNED ORDERS AND THEREFORE, THIS TRI BUNAL ORDER IS NOT RENDERING ANY HELP TO THE ASSESSEE IN THE FACTS OF THE PRESENT CASE. 9. IN THE RESULT, ALL THE FOUR APPEALS OF THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (ASHA VIJAYARAGHAVAN) (A.K. GA RODIA) JUDICAL MEMBER ACCOUNTANT MEMBER BANGALORE: D A T E D : 16.09.2016 AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE ITA NOS.2 TO 5(BANG)/2016 11 1. DATE OF DICTATION 2. , , DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE DICT ATING MEMBER .. 3. !' # . $ %# / $ %# # & DATE ON WHICH THE APPROVED DRAFT COMES TO THE PS/SR .PS. 4. ''() & * + DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTAT ING MEMBER FOR PRONOUNCEMENT 5. * . %# / # . . %# # + DATE ON WHICH THE ORDER COMES BACK TO THE PS/SR.PS .. 6 * !', + DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. ! !', ' , - ) IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. .% / 0 + DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. * 1'2 / 34 & 5 + DATE ON WHICH ORDER GOES FOR XEROX &ENDORSEMENT 10. 0 6 / + DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 11. * 7 & 0 8 + THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. !) * 9() & 0 9() /#5 . + THE DATE ON WHICH THE FILE GOES TO DESPATCH SECTION FOR DESPATCH OF THE TRIBUNAL ORDER 13. * 9() + DATE OF DESPATCH OF ORDER .