ANAND PRAKASH, A.M.: This is departmental appeal on following ground: "On facts and in circumstances of case, ld. AAC has erred i n directing ITO to allow interest under s. 214 of IT Act, 1961 to assessee on refund of excess amount of TDS from his dividend income on shares." short contention of ld. Departmental Representative is that ld. AAC has erred in directing that interest be paid by ITO to assessee under s. 214 in respect of tax deducted at source aggregating to Rs. 4,476 of which Rs.4,130 became refundable on completion of assessment. According to ld. D.R., s. 214 does not provide for payment of interest in respect of tax deducted at source. It deals with payment of interest by Government in case advance tax paid is found to be more than assessed tax. In present case, there was no advance tax paid and so question of advance tax exceeding assessed tax by any amount did not arise and as such question of payment of interest under s. 214 on such excess was irrelevant. On behalf of deceased assessee, legal representative of assessee, who is himself advocate, urged that there was no difference in quality of tax deducted at source and tax paid in advance in terms of ss. 207 to 213 and, in effect, both were tax paid in advance or advance tax and as such it would be erroneous to hold that no interest was payable to assessee even though assessee's money had been retained by Govt. and used by it to detriment of assessee. principle underlying scheme of payment of interest by government to assessee and by assessee to government under various provisions of IT Act, namely, sub-s. (8) of s. 139, ss. 214, 215, 216 and 217 and sub-s. (2) of 220 of IT Act, 1961 was that anybody who retains another's money should pay interest to person in question for use of money. If it is government which has retained assessee's money, it should pay tax and if it is assessee who has not paid government tax in due time, he should pay interest. It was, therefore, wrong on part of Revenue, pointed out ld. counsel, to urge that whereas interest was payable on tax paid in one form, it was not payable with regard to tax paid in another form. I have given careful consideration to rival submissions and facts of present case. It appears that assessee filed return of income for asst. yr. under consideration declaring income of Rs. 10,430, whereon tax of Rs. 346 became payable. Tax deducted at source was, however, Rs. 4,476 and, therefore, at time of assessment, it was ascertained that amount of Rs. 4,130 was refundable to assessee on account of tax deducted at source. assessment in question was finalised on 22nd Dec., 1980. It was which reference to above refundable amount, namely, Rs. 4,130 that dispute with regard to payment of interest thereon arose. ITO had granted on interest to assessee on aforesaid amount. That AAC, however, felt that interest was payable to assessee in terms of s. 214 of IT Act, 1961, for period 1st April, 1978 to 31st Aug., 1980 and accordingly, he directed ITO to allow interest to assessee for aforesaid duration. period 1st April, 1978 to 31st Aug., 1980 has prima facie been wrongly taken by ld. AAC, for, even according to s. 214, period for which interest is to be paid would commence on 1st April, 1978 and would end on date of regular assessment, which, in present case, was as noted earlier, 22nd Dec., 1980. Therefore, direction of ld. AAC to be consistent with his finding that interest was payable under s. 214, ought to have been to pay interest to assessee from 1st April, 1978 to 22nd Dec., 1980. There is no relevance of dt. 31st Aug., 1980 and prima facie there is mistake in order of AAC in so far as he mentioned dt. 31st Aug., 1980. Be that as it may, main controversy to be decided in present appeal, is whether interest, on facts of present case, was payable to assessee under s. 214 of IT Act, 1961. said section, so far as it is relevant for our purpose, read as below: "The Central Government shall pay simple interest at 12 per cent p.a. on amount by which aggregate sum of any instalments of advance tax paid during any financial year in which they are payable under ss. 207 to 213 exceeds amount of assessed tax from first day of April, next following said financial year to date of regular assessment for asst. yr. immediately following said financial year....." As may be noted from aforesaid provision, more particularly from those underlined above, interest is to be paid on excess of aggregate sum paid in form of various instalments of advance-tax. word "advance tax" has been defined in s. 207 of IT Act, 1961. According to sub-s. (1) thereof, "tax shall be payable in advance in accordance with provisions of ss. 208 to 219 in case of income other than (a) income chargeable under head 'capital gains ; and (b) income referred to in sub-cl. (ix) by cl. (24) of s. 2". Sub-s. (2) of said section provides that "such income is hereinafter in Chapter referred to as 'income subject to advance tax', and such tax is hereinafter in this Chapter referred to as 'advance tax'." Sec. 209 provides for computation of advance- tax. According to cl. (a) of sub-s. (1) thereof, computation of advance-tax is done in three steps. First of all total income of latest previous year in respect of which assessee has been assessed by way of regular assessment is ascertained. From this total income capital gain and income liable to tax in terms of sub-cl. (ix) of cl. (24) of s. 2 are excluded. By excluding aforesaid two items, if any, one arrives at income subject to advance-tax. Tax on aforesaid income is, then calculated at rates in force in financial year. Form such tax, tax deducted at source is excluded. What then remains is "the advance tax payable." Sec. 211 of aforesaid Act provides that aforesaid "advance tax payable" shall be paid in instalments as provided therein which in some cases would be 3 and in other cases 4. Tax deduction as source is, thus, one of items excluded to arrive at advance-tax; it is not one of its components. It is separate and over and above advance-tax collection, but are distinct and separate from each other. Tax deducted at source is done under sub-Chapter B of Chapter XVII of IT Act, 1961, and this deduction is done not by assessee himself but by payer of income in question, namely, salary, dividend, interest etc. to assessee. If person who is responsible for payment does not deduct-tax, as provided for various provisions of said sub-Chapter, beginning from 192 and ending with 195, he is visited with certain penal consequences as provided for in s. 201 of IT Act, 1961, namely, imposition of penalty and charging of interest. No action for non-deduction of tax at source is indicated against assessee, nor any interest is payable by assessee, if tax is not deducted from his salary etc. and is not deposited with government. Secs. 208 to 219 deal with advance-tax and require payment of advance-tax by assessee himself and in case of assessee's failure to pay tax as required under sub-Chapter 'C' of Chapter XVII of IT Act, 1961, dealing with advance payment of tax, it is assessee, who has to bear brunt of penal consequences, in contract to position obtaining under various provisions dealing with tax deducted at source in terms of sub-Chapter B of Chapter XVII of Act. Secs. 215 to 217 deal with payment of interest for non-payment of advance-tax in circumstances indicated in said sections. Sec. 214 deal with converse position, where payment made by assessee by way of advance-tax is more than assessed tax, and provisions has been made in it for payment of interest to assessee by Government, just as assessee is required to pay interest to Government in case of non-payment or less payment of advance-tax compared to assessed tax. From above scheme of Act, it is clear that even though tax deduction at source and advance payment of tax are part of same general policy namely, policy of paying taxes as you earn income, provisions requiring collection of tax in aforesaid two modes are different insofar as they lay responsibility for payment of taxes on different units. In case of tax deduction at source, responsibility is on payer of income, whereas in case of advance payment of tax, onus of payment is, directly on assessee. Consistent with above scheme, in case of non-deduction of tax at source, no penal consequences arise against assessee, but for non- payment of advance tax penal consequences arise against assessee. It is in this context that note has to be taken of lack of any provision whatsoever in sub- Chapter 3 analogous to provisions of s. 214 obtaining in sub-Chapter C. It is not stipulated in sub-Chapter B that any interest will be paid to assessee in case tax deducted at source is found on regular assessment to be in excess of assessed tax. Sec. 214, in contract, specifically states that, if aggregate of advance-tax paid in instalments as provided in Section 211, is more that "assessed tax" interest on such excess will be paid. On account of separate provisions governing tax deduction at source and payment of advance- tax, it is difficult to see as to how s. 214 can be made applicable to situation where there is excess of tax deduction at source over assessed tax which is covered by sub-Chapter B. If it was intention of legislature that if tax deduction at source has been more than assessed tax interest should be paid to assessee on such excess deduction provision analogous to s. 214 could have been inserted by legislature is sub-Chapter B also. It has, however, not that done so. On contrary as noted earlier, legislature has laid responsibility of deduction at source on payer of incomes in question and in case of non-deduction of tax at source, it is they who are visited with penal consequences of payment of interest and penalty etc. and no penalty or interest can be charged from assessee for non deduction at source. May be, it is because of this special feature of tax deduction at source that legislature did not consider it necessary to put in provision analogous to s. 214 in Sub-Chapter B of Chapter 17 of IT Act, 1961. It is, however, true that no interest is ever to be paid in case of refund becoming due to assessee on account of more deduction of tax at source than assessed tax. Sec. 243 deals with payment of interest on delayed refunds. duration of period for which interest has to be paid under s. 243 is, of course, different from what is mentioned in s. 214 and in s. 243, there is no provision for payment of interest from first day of April, next following financial year in which tax deduction was done to date of regular assessment. Rather, period starts after expiry of 3 months from end of month in which total income is determined. assessee's request, therefore, that interest should be paid to him on excess of tax deduction at source over assessed tax from 1st of April next following financial year in which tax deduction at source was done, cannot be accepted. Payment of interest under statute has to be authorised by specific provision of Act and it would not be correct to direct payment of interest on general hypothesis that if government has used assessee's money it should pay interest for period for which it has used money of assessee. It may be ideally correct position, but if statute does not want to implement this ideal position and intends to give differential treatment to different situations, executive or judiciary have no alternative but to give effect to provisions of Act as they are. In view of above, I am of opinion that ld. AAC of IT had erred in directing ITO to pay interest under s. 214 with regard to tax deduction at source. Clearly ld. AAC has forgotten that s. 214 dealt with situation obtaining in sub-Chapter C of Chapter XVII and not with situation dealt with by sub- Chapter B of Chapter XVII. His order being erroneous is hereby reversed. It is, however, directed that if, interest is payable to assessee in terms of s. 243 of IT Act, 1961 same will be granted to assessee by ITO in accordance with law. With these observations, I allow departmental appeal. *** INCOME TAX OFFICER v. LATE H.S. TIAGI