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Income Tax Appellate Tribunal, “A” BENCH : BANGALORE
Before: SHRI N.V. VASUDEVAN & SHRI CHANDRA POOJARI
Per Chandra Poojari, Accountant Member This appeal by the assessee is directed against the order dated 28.02.2018 of the CIT(Appeals), Mysuru for the assessment year 2013-14.
The assessee has raised the following grounds:-
“1. The order of the learned Commissioner of Income-tax [Appeals] passed under Section 201(1) and 201(1A) of the Act in so far as it is against the Appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case. 2. The appellant denies itself liable to be treated as an assessee in default to the extent of Rs. 28,27,447/- under section
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201(1) of the Act, on the facts and circumstances of the case. 3. The appellant denies itself liable to be charged interest under section 201(1A) of the Act, since the appellant denies itself to be treated as an assessee in default under section 201(1) of the Act, on the facts and circumstances of the case. 4. The learned CIT(A) was not justified in holding that the appellant has not demonstrated that the interest paid was to its members was exempt under section 194A(3)(v) of the Act, and hence has not made out a case, the fact of which was not in dispute even by the AO, on the facts and circumstances of the case. 5. The learned CIT(A) was not justified in law in not holding that the order passed under section 201(1) and 201(1A) of the Act, was bad in law, as it was passed without issue of show cause notice, on the facts and circumstances of the case. 6. The learned Commissioner of Income Tax (Appeals) was not justified in stating that an opportunity of hearing had been provided to the assessee without bringing any material on record to justify the same, thereby passing an erroneous order, on the facts and circumstances of the case. 7. The learned CIT(A) was not justified in appreciating that the order passed under section 201(1) and 201(1A) of the Act is bad in law as no show cause notice has been issued which is an essential prerequisite before passing order under section 201(1) and 201(1A) of the Act on the parity of reasoning of the decision of the Hon'ble Supreme Court in the case of Hotel Bluemoon reported in 321 ITR 362 and consequently liable to be quashed, on the facts and circumstances of the case. 8. The learned Commissioner of Income Tax (Appeals) failed to appreciate the fact that the assessing officer is not justified in passing the order under section 201(1) and 201(1A) of the Act merely on the basis of survey under
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section 133A of the Act and consequently the order ought to have been quashed, on the facts and circumstances of the case. 9. The learned Commissioner of Income Tax (Appeals) failed to appreciate that the interpretation sought to be made by the learned Assessing Officer is not in accordance with law and the members of the appellant ought not to have been subjected to TDS provisions, on the facts and circumstances of the case. 10. The learned Commissioner of Income Tax (Appeals) failed to appreciate that the Appellant is justified in law in not deducting tax at source on payments of income referred in sub-section (1) of section 194A of the Act to its members in view of the clause (v) to sub-section (3) of section 194A of the Act on the facts and circumstances of the case. 11. The Learned CIT(A) was not justified on facts in appreciating that the Appellant has rightly deducted tax at source only on payments to non-members in accordance with clause (viia) read with clause (i)(b) to sub-section (3) of section 194A of the Act on the facts and circumstances of the case. 12. The learned Commissioner of Income Tax (Appeals) failed to appreciate that, the period of levy of interest under section 201 (1A) should have been restricted to the date of payment of tax on such interest by the Member of the Society on the facts and circumstances of the case. 13. The learned Commissioner of Income Tax (Appeals) failed to appreciate that there is no liability to pay tax on the analogy of Section 206C(6) in the provisions of section 201 of the Act and thus the demand notice under section 156 of the Act can be raised on the Assessee himself and consequently the amount cannot be collected from the Appellant. 14. The Appellant denies itself liable to be treated as an assessee-in-default, as there existed sufficient cause for not deducting tax at source viz., the Circular No. 09 of 2002 and
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consequently the provisions of section 201(1) are not attracted on the facts and circumstances of the case. 15. Without prejudice, and without conceding that TDS is deductible, non-deduction of TDS by the appellant on a bonafide belief that the members in receipt of the interest are liable to pay the tax on such income received by them and from the interpretation of section 194A(3) that the appellant was not liable to deduct TDS from members and on the basis of reasoning provided in the decision of the Apex Court in Vegetable Products, the appellant ought not to be considered as an assesse-in-default to further the cause of natural justice on the facts and circumstances of the case. 16. Without prejudice, and without conceding that TDS is deductible, even then the interest is not leviable under the facts and circumstances of the case. 17. The learned Commissioner of Income Tax (Appeals) failed to appreciate that the provisions of section 194A (1) of the Act are not applicable to the members of the Co-operative society on the facts and circumstances of the case. 18. The learned Commissioner of Income Tax (Appeals) failed to appreciate the provisions of section 191 of the Act which provides that in a case of income in respect of which provision is not made under this Chapter XVII-B of the Act for deducting income-tax at the time of payment, income- tax shall be payable by the assessee direct and consequently passed a perverse order under the facts and circumstances of the case. 19. The learned Commissioner of Income Tax (Appeals) erred in not following the decision of the Bangalore ITAT in the case of The Bagalkot District Co-operative Bank Ltd vs. Joint Commissioner of Income Tax (ITA # 1572/Bang/2013 AY 2009-2010), the facts of which are identical to that of the appellant. 20. Without prejudice the amount determined is very high and requires to be reduced substantially.
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The Appellant craves leave to add, alter, substitute and delete any or all of the grounds of appeal urged above. 22. For the above and other grounds to be urged during the hearing of the appeal the Appellant prays that the appeal be allowed in the interest of equity and justice.” 3. The facts of the case are that assessee is a co-operative bank registered as a co-operative society. During the year under consideration, the AO noted that assessee failed to deduct tax at source from the payment of interest on time deposits of its members and therefore order u/s. 201(1) & 201(1A) of the Income-tax Act, 1961 [the Act] was passed holding the assessee as an assessee in default to the extent of tax deductible amounting to Rs.28,27,447. Further, he also held that the assessee was liable for payment of interest u/s. 201(1A) amounting to Rs. 6,50,313. Aggrieved by the aforesaid combined order made uls. 201(1) and 201(1A) of the Act, the assessee preferred this appeal before the CIT(Appeals).
Before the CIT(Appeals), it was contended that the assessee was not issued with a show-cause notice and therefore, the impugned order was bad in law. The CIT(A) was of the view that the assessee was given a due opportunity of being heard on 24/02/2015 calling upon to show-cause as to why it should not be treated as an assessee in default in terms of Sec.201(1) of the Act. Therefore, the CIT(A) rejected this ground.
On the issue pertaining to non-deduction of tax at source from the interest paid by the assessee to its members, the CIT(A) observed that the AO held that the aforesaid payments of interest made without deduction of taxes at source for individual payments exceeding Rs. 10,000/- in each case attracted the provisions of Sec.194A(3)(i)(b) of the Act. The assessee submitted that the provisions pertaining to co-operative societies must have been applied since was exempt from the provisions of TDS u/s.194A (3) of
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the Act. The CIT(A) was of the view that Section 194A(3)(i)(b) of the Act is a provision which mandates deduction of tax at source by a co-operative society carrying on the business of banking, where the income in the form of interest which is paid by such society is in excess of ten thousand rupees. Section 194A(3)(v) of the Act provides that tax need not be deducted at source where the income in the form of interest is credited or paid by a co-operative society to a member thereof or to any other co- operative society. In the instant appeal, the CIT(A) was of the view that the onus was on the assessee to prove with credible and verifiable documentary evidence that the interest of Rs.2,82,74,477 paid by the assessee was exempt as per the provisions of Section 194A(3)(v) of the Act. As no factual evidence was adduced to support the assessee’s claim, the CIT(A) held that the failure to deduct taxes at source from the payment of interest of Rs,2,82,74,477 attracted the provisions of section 194A(3)(i)(b) of the Act and confirmed the order of AO.
On the contention of the assessee that the impugned order was barred by limitation of time, the CIT(A) was of the view that the impugned order was made within the time limit prescribed under section 201(3) of the Act and therefore dismissed the same.
After hearing both the parties, we are of the opinion that similar issue was considered by this Tribunal in the case of Bagalkot District Central Co-op. Bank v. JCIT, 48 taxmann.com 117 (Bang. Trib) and vide order dated 30.5.2014, it was held as under:-
“12. We have heard the rival submissions. The learned counsel for the assessee after referring to the relevant provisions of Sec.194A(3)(i)(b), 194A(3)(v) and 194A(3)(viia) of the Act (these provisions have already been extracted in the earlier part of this order and are not being repeated), submitted that an analysis of the provisions would disclose that:
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(a) U/s. 194A(3)(i)(b) a Co-operative Bank need not deduct tax at source if the amount of interest paid does not exceed Rs. 10,000 whether the payment is made to a member or non-member or whether the interest is on time deposit or non-time deposit. (b) U/s 194A (3)(v) a Co-operative Society irrespective of its nature of activity need not deduct tax at source on any interest paid to its members whether on time deposits or non-time deposits (c) U/s 194A(3)(viia)(a), a primary agricultural credit Co- operative Society or a Cooperative land mortgage bank or a co-operative land development bank need not deduct tax at source on any interest paid by it in respect of deposits received by it. (d) U/s 194A(3)(viia)(b) of the Act a co-operative society other than a cooperative society or a bank referred to in Clause (a) need not deduct tax at source on interest paid on any deposit other than time deposits. 2.3 The following chart explains the position:
Type of Rs. 10,000 Any Amount/Any Interest on Interest on time Interest/ or less type of interest deposits other deposit 194A Payee 194A(3)(i)(b) paid by a Co-op than time- (3)(v) Society deposits 194A(3)(v) 194A(3)(viia)(b) Member Exempt Exempt Exempt Exempt Non- Exempt TDS to be made Exempt TDS to be made Member According to him the above chart would clearly show that when a co-operative society is paying interest to its members, it need not deduct tax at source. It was his submission that the assessee is a co-operative society registered under the Mysore Co-operative Societies Act vide the certificate issued by the Registrar of Co- operative Societies.
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With regard to the reliance placed by the learned Assessing Officer on the decision of the Hon'ble ITAT Pune Bench in Bhagani Nivedita Sahakari Bank Ltd. v. Asstt. CIT [2003] 87 ITD 569, it was submitted by him that in that case the Hon'ble Tribunal held that the provision of S. 194A(3)(v) of the Act is not applicable to a Co-operative Bank. The Hon'ble Tribunal held that u/s. 194A(3)(v) were to apply to a Co-operative Bank, there will be a conflict between 194A(3)(viia)(b) and S. 194A(3)(v). It was his submission that there is no conflict. S.194A(3)(viia)(b) would apply to all co-operative banks when they pay interest on deposits other than time deposit whether to members or non- members whereas S. 194A(3)(v) applies to payment to members including interest on time-deposits. The classification itself is different. S.194A(3)(v) classifies the payees into members or non-members whereas 194A(3)(viia)(b) classifies the nature of interest whether it is on time deposit or a non-time deposit. When the classification is on a totally different criterion, there cannot be any conflict between the two sections. They operate in two different fields. It is respectfully submitted that the Hon'ble ITAT Bench erred in holding that there is a conflict between 194A(3(v) and 194A(3)(viia)(b). It was further submitted by him that the Hon'ble ITAT Pune Bench did not have the benefit of Circular No. 9/2002 dated 11.9.2002 (257 ITR St 36). In this circular the Board has clarified as under: "Board has considered the matter and it is clarified that a member of a co-operative bank shall receive interest on both time deposits and deposits other than time deposits where such co-operative bank without TDS under Section 194A by virtue of exemption granted vide clause (v) of sup-section (3) of the said section. The provisions of clause (viia) of the said sub-section are applicable only in case of a non-member depositor of the co-operative bank, who shall receive interest-only on deposits other than time deposits made on or after July 1, 1995 without TDS under section 194A". It was also submitted by him that the learned Assessing Officer has stated that the Circular was struck down in Jalgaon District Central Co-operative Bank Ltd.'s case (supra). According to him the observations of the AO in this regard were not correct as the Hon'ble High Court struck down only that portion of circular
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which dealt with Boards clarification as to who is a member. The court never had an occasion to go into a question whether S. 194A(3)(v) of the Act would cover- a co-operative bank or not. It was finally submitted that the assessee is entitled to deduction and no disallowance is called for u/s 40(a)(ia) of the Act. 14. The learned DR while reiterating the stand of the AO/CIT(A) further relied on the decision of the ITAT Panaji Bench in ITA No.85/PN/2013 for AY 09-10 in the case of The Bailhongal Urban Co-op Bank Ltd. v. Jt. CIT order dated 28.8.2013 wherein the Tribunal followed the order of SMC Bench in the case of Bhagani Nivedita Sahakari Bank Ltd. (supra). Without prejudice to his submission that TDS provisions were applicable even in the case of payment of interest to member depositors by a co- operative society, it was submitted by him that the order of the AO/CIT(A) is not clear as to whether the interest disallowed pertains to interest paid to members or non-members and this aspect has to be verified, if necessary. In particular it was submitted that if clause (v) of Sec.194A(3) exempts co-operative societies from the provisions of TDS when it pays interest to its members then there was no need to have Sec.l94A(3)(viia) of the Act specifically exempting certain co-operative societies from the obligation to deduct tax at source when it pays interest. To this argument, we have already noticed the argument of the learned counsel for the assessee that these two provisions operate in different field. We may clarify here that the said argument of the learned counsel for the assessee is a clear answer to the above argument of the learned DR. The learned DR also filed written submission before us, in which the stand of the revenue, as reflected in the orders of the lower authorities, has been reiterated. 15. We have given a very careful consideration to the rival submissions. We are of the view that the submissions made by the learned counsel for the assessee deserves to be accepted. As rightly contended by him Sec.194A(3)(i)(b) of the Act is a provision which mandates deduction of tax at source by a co- operative Society carrying on the business of banking, where the income in the form of interest which is paid by such society is in excess of ten thousand rupees. Sec.194A(3)(v) of the Act provides that tax need not be deducted at source where the
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income in the form of interest is credited or paid by a co- operative society to a member thereof or to any other co- operative society. This provision therefore applies to all co- operative societies including co-operative society engaged in the business of banking. It is not possible to exclude co-operative society engaged in the business of banking from the provisions of Sec194A(3)(v) of the Act on the ground that the same is covered by the provisions of Sec.194A(3)(i)(b) of the Act. Sec.194A(3)(v) of the Act refers to payment by a co-operative Society to a member and payment by a cooperative society to non-member would continue to be governed by the provisions of Sec.194A(3)(i)(b) of the Act. Similarly u/s.194A(3)(viia)(b) interest on deposits other than time deposits even if the payment is made to a non-member by a co-operative society, the co- operative society need not deduct tax at source. Thus this section carves out another exception to Sec.194A(3)(i)(b) of the Act. We do not think that any of the above provisions can be called a general provision and other provisions called specific provisions. Each provision over-lap and if read in the manner as indicated above, there is perfect harmony to the various provisions. We do not agree with the view expressed by the Pune ITAT SMC in the case of Bhagani Nivedita Sahakari Bank Ltd. (supra) when it says that Co-operative society as mentioned in cl. (v) is a general species, whereas the other five categories of co-operative societies which are specifically referred to in other provisions are specific cooperative societies. The further conclusion in the said decision that the term 'co-operative society' in cl. (v) of s. 194A(3) has to be interpreted as co-operative society other than co-operative bank, is again unsustainable. The law is well settled that by a process of interpretation one cannot add on words that are not found in the text of the statute. Such a course is permitted only when there is "causus omisus". We do not think that the provisions of Sec.194A(3)(v) suffers from any causus omisus as has been interpreted by the ITAT Pune/Bench SMC. 16. We are also of the view that the decision of the Hon'ble Kerala High Court in the case of Moolamattom Electricity Board Employees Co-op Bank Ltd., In re [1999] 238 ITR 630/106 Taxman 242 supports the plea of the assessee before us. The petitioners in that case were primary credit societies registered under the Kerala Co-operative Societies Act. In view of the
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specific provisions of Sec.194A(3)(viia) of the Act, they claimed that they need not deduct tax at source on interest paid. It was submitted by the petitioner that sub-s.194A(3)(v) deals with such income credited or paid by a co-operative society to a member whereas sub-s. (3)(viia)(a) provides a total exemption to deposits with the primary credit society. The Hon'ble Kerala High Court accepted their plea and in their judgment have observed that Sec.194A (3)(i) exemption limit of Rs. 10,000 to interest paid on time deposits with co-operative societies engaged in carrying on business of banking is allowed but that does not mean that all co- operative societies who have credited or paid exceeding Rs. 10,000 are liable to deduct tax at source. The Court held that co- operative society engaged in carrying on business of banking and primary credit societies stand on different footing and belong to different class. That does not mean that Sec.194A(3)(v) of the Act is applicable only to Co-operative Societies other than co- operative societies carrying on the business of banking as observed in para-37 of its judgment the Pune ITAT in the case of Bhagani Nivedita Sahakari Bank Ltd. (supra). In fact in para-2 of Circular No. 9 dated 11.9.2002, the CBDT has very clearly laid down that Co-operative societies carrying on banking business when it pays interest on deposits by its members need not deduct tax at source in view of the provisions of Sec.194A(3)(v) of the Act. 17. We also find that the CBDT in Circular No.9 dated 11.9.2002 clarified certain aspects which are relevant to the present case. The same reads thus: "Circular No.9 of 2002 Sub : Tax deduction at source under section 194A of the Income-tax Act, 1961 —Applicability of the provisions in respect of income paid or credited to a member of co- operative bank—Reg. 11/09/2002 TDS 194A Under section 194A of the Income-tax Act, 1961, tax is deductible at source from any payment of income by way of interest other than income by way of interest on
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securities. Clause (v) of sub-section (3) of section 194A exempts such income credited or paid by a co-operative society to a member thereof from the requirement of TDS. On the other hand, clause (viia) of sub-section (3) of section 194A exempts from the requirement of TDS such income credited or paid in respect of deposits (other than time-deposits made on or after 1st July, 1995) with a co- operative society engaged in carrying on the business of banking. 2. Representations have been received in the Board seeking clarification as to whether a member of a co- operative bank may receive without TDS interest on time deposit made with the co-operative bank on or after 1st July, 1995. The Board has considered the matter and it is clarified that a member of a co-operative bank shall receive interest on both time deposits and deposits other than time deposits with such co-operative bank without TDS under section 194A by virtue of the exemption granted vide clause (v) of sub-section (3) of the said section. The provisions of clause (viia) of the said sub- section are applicable only in case of a non-member depositor of the co-operative bank, who shall receive interest only on deposits other than time deposits made on or after 1st July, 1995 without TDS under section 194A. 3. A question has also been raised as to whether normal members, associate members and sympathizer members are also covered by the exemption under section 194A(3)(v). It is hereby clarified that the exemption is available only to such members who have joined in application for the registration of the co-operative society and those who are admitted to membership after registration in accordance with the bye-laws and rules. A member eligible for exemption under section 194A(3)(v) must have subscribed to and fully paid for at least one share of the co-operative bank, must be entitled to participate and vote in the General Body Meetings and/or Special General Body Meetings of the cooperative bank and must be entitled to receive share from the profits of the cooperative bank. [F. No. 275/106/2000-IT(B)] (2002) 177 CTR(St) 1"
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It can be seen from para-2 of the Circular referred to above that the CBDT has very clearly laid down that Co-operative societies carrying on banking business when it pays interest on deposits by its members need not deduct tax at source. The above interpretation of the provisions by the CBDT, which is in favour of the assessee, in our view is binding on the tax authorities. 19. In the case decided by ITAT Panaji Bench in ITA No.85/PN/2013 for AY 09-10 in the case of the Bailhongal Urban Co-op Bank Ltd. (supra) order dated 28.8.2013, the tribunal proceeded on the footing that the aforesaid circular has been quashed by the Hon'ble Bombay High Court in the case of the Jalgaon District Central Co-operative Bank Ltd. (supra) and therefore chose to follow the decision rendered by Pune ITAT SMC in the case of Bhagani Nivedita Sahakari Bank Ltd. (supra). In our view the Hon'ble Bombay High Court in the case of Jalgaon District Central Co-operative Bank Ltd.'s case (supra) was dealing with a case of challenge to para-3 of CBDT Circular No.9 dated 11.9.2002 which tried to interpret the word "member" as given in Sec.194A(3)(v) of the Act. It is only that part of the circular that had been quashed by the Hon'ble Bombay High Court and the other paragraphs of the Circular had no connection with the issue before the Hon'ble Bombay High Court. How could it be said that the entire circular has been quashed by the Hon'ble Bombay High Court? In our view para-2 of the Circular still holds good and the conclusion of the ITAT Pune Bench in the case of the Bailhongal Urban Co-op Bank Ltd. (supra) are not factually correct. Consequently, the conclusions drawn in the aforesaid decision also contrary to facts and hence cannot be considered as precedent. 20. The learned counsel for the assessee has brought to our notice that the ITAT Vishakapatnam Bench in the case of the Asstt. CIT v. Visakhapatnam Co-operative Bank Ltd. [2011] 47 SOT 295/13 taxmann.com 190 has held that co-operative societies carrying on banking business when it pays interest to its members on deposits it need not deduct tax at source in view of the provisions of Sec.194A(3)(v) of the Act. Similar view has also been expressed by the Pune Bench of the ITAT in the case of Asstt. CIT v. Ozer Merchant Co-operative Bank Ltd. [2014] 62 SOT 14/41
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taxmann.com 110. We may add that in both these decisions the discussion did not turn on the interpretation of Sec.194A(3)(i)(b) of the Act vis-a-vis Sec.l94A(3)(v) of the Act. It is thus clear that the preponderance of judicial opinion on this issue is that co- operative societies carrying on banking business when it pays interest to its members on deposits. need not deduct tax at source in view of the provisions of Sec. 194A(3)(v) of the Act. 21. For the reasons given above, we hold that the assessee which is a co-operative society carrying on banking business when it pays interest income to a member both on time deposits and on deposits other than time deposits with such co-operative society need not deduct tax at source under section 194A by virtue of the exemption granted vide clause (v) of sub-section (3) of the said section. 22. We however find, as submitted by the learned DR, that the orders are not clear as to whether the entire interest disallowed u/s.40(a)(ia) of the Act relates to interest paid to members or part of the interest is also paid to non-members. We therefore set aside the order of the CIT(A) for the limited purpose of verifying as to any portion of the interest disallowed relates to payment to non-members and in that event restrict the disallowance in so far as it relates to payment of interest by the assessee to non- members without deduction of tax at source. 23. In the result, the appeal of the assessee is treated as allowed for statistical purposes.” 8. This view of the Tribunal is also confirmed by the Hon’ble jurisdictional High Court in CIT v. National Co-operative Bank Ltd., 387 ITR 702 (Karn) wherein the Hon’ble High Court did not agree with the contention of the revenue that section 194A(3)(v) is a general provision granting benefit to all co-operative societies, whereas the provisions of section 194A(3)(i)(b) of the Act deals with co-operative society carrying on the business of banking, hence specific provisions in any case overrides the general provisions and the same was rejected by the Hon’ble Court in view of the fact that the word “members” is missing in clause (b). Further in
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Circular No. 19/2005 dated 27.11.2005 at para 42.5, it has been inter alia mentioned as under:-
“ …………. Hence, the Co-operative Bank was not required to deduct tax from the payment of interest on the time-deposits of its members paid or credited before first June, 2015”. 9. Being so, there is no merit in the argument of the ld. DR that specific provisions of section 194A(3)(i)(b) of the Act applied so as to deduct tax at source on the interest accrued or paid on the time-deposits by the co- operative bank. In view of the above, we allow the appeal of the assessee.
In the result, the appeal of the assessee is allowed.
Pronounced in the open court on this 19th day of March, 2021.
Sd/- Sd/- ( N V VASUDEVAN ) ( CHANDRA POOJARI ) VICE PRESIDENT ACCOUNTANT MEMBER
Bangalore, Dated, the 19th March, 2021.
/Desai S Murthy /
Copy to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT, Bangalore. By order
Assistant Registrar ITAT, Bangalore.