2023 (1) TMI 1220

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....1989-90/2023, W.P.(C) 503/2023 & CM Nos.1991-92/2023, W.P.(C) 526/2023 & CM Nos.2115-16/2023 W.P.(C) 527/2023 & CM Nos.2117-18/2023 Present : For the Petitioner : Mr M.P. Rastogi and Mr Manu K. Giri, Advs. For the Revenue : Mr Puneet Rai, Sr. Standing Counsel with Ms Adeeba Mujahid, Adv. O R D E R [Physical Hearing/Hybrid Hearing (as per request)] CM No.1972/2023 in W.P.(C) 493/2023 CM No.1984/2023 in W.P.(C) 499/2023 CM No.1986/2023 in W.P.(C) 500/2023 CM No.1988/2023 in W.P.(C) 501/2023 CM No.1990/2023 in W.P.(C) 502/2023 CM No.1992/2023 in W.P.(C) 503/2023 CM No.2116/2023 in W.P.(C) 526/2023 CM No.2118/2023 in W.P.(C) 527/2023 1. Allowed, subject to just exceptions. W.P.(C) 493/2023 & CM No.19....

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....ttracted in such circumstances is Section 194H of the Income Tax Act, 1961 [in short "Act"]. 7.1 Besides this, in some Assessment Years (AYs), it appears that the petitioner has not deducted tax at source in the payments made with regard to commission, professional fee and qua those payments which have been made to contractors. The relevant details with regard to the demand raised and the orders passed under Section 201(1)/201(1A) of the Act, which concern periods which fall within the ambit of each of the above-captioned writ petitions, are set forth hereafter : W.P.(C) AY FY Demand raised Impugned Order before CIT(TDS) passed under Section 201(1)/201(A) Impugned order in W.P.(C) Whether written submissions have bee....

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....commission or brokerage, only then, at the time of crediting such income or making payment, tax at source is required to be deducted. 9. It is also contended by the learned counsel for the petitioner that, In any event, the demand with regard to withholding tax cannot be raised against the petitioner, although, there may be other consequences such as payment of interest and prosecution for the alleged infractions of the provisions of the Act. 10. As indicated hereinabove, in each of these matters, an application for complete stay on the demand was moved, which has been disposed of via order dated 16.12.2022, by granted stay subject to payment of 15% of the demand. The petitioner, thus, assails, in the above-captioned writ petitions, t....

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....raised against the petitioner with regard to withholding tax, for the failure to deduct the same at source. Furthermore, the petitioner's contention that the cost of free samples handed over to its vendors cannot be construed as commission or brokerage, is also required to be examined in the pending appeals. At worst, the petitioner is an assessee in default, therefore, only consequences provided in the Act will attach to it. Under Section 191 of the Act, the liability for tax, prima facie, would rest on the assessee i.e., the vendors in this case. 14.1. That said, we do that not do not want to express any final view on the merits of this aspect of the matter, since the appeals are pending consideration before the CIT (A). 15. Given t....