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M/s. Vodafone South Limited Versus The Deputy Commissioner, TDS Circle-2 (1) and Others

2015 (8) TMI 1279 - ANDHRA PRADESH HIGH COURT

Grant of stay of collection of demanded tax - Held that:- Considering all these aspects and in the interest of justice, we are of the opinion that the 1st respondent- Deputy Commissioner ought to have exercised discretion as enjoined on him under Section 220(6) of the Act and granted stay. Inasmuch as the matter is ripe for hearing before the Supreme Court on 10.09.2015, this Court, instead of setting aside the impugned order and remanding the matter back for fresh consideration, deems it approp .....

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opy of this order and remaining 20% shall be paid within a period of four weeks thereafter.” - W.P. Nos. 2456, 2460, 2464, 2469 and 2472 of 2015 - Dated:- 25-8-2015 - SRI G.CHANDRAIAH AND SRI CHALLA KODANDA RAM, JJ. COMMON ORDER:- (per Hon ble Sri Justice G. Chandraiah) Inasmuch as these five writ petitions are interrelated and filed by the same assessee questioning the Order dated 22.01.2015 passed by the 1st respondent, all these matters are taken up together for disposal by this Common Order. .....

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. The case of the assessee is that no commission / brokerage has been paid to its dealers and the transaction of the petitioner with the agents/dealers is one of selling the services at a discount and the discount amount cannot be treated as commission or brokerage, and hence, the question of making any TDS itself would not arise. However, the petitioner admits that for the assessment years 2007- 2008, 2008-2009 and 2009-2010 against the orders of the Tribunal holding that Section 194(H) of the .....

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tances, the Karnataka High Court in M/s.Bharati Airtel Limited v. Deputy Commissioner (I.T.A.Nos. 637 - 644 of 2013 and batch) had delivered an elaborate judgment dated 14.08.2014 holding that the discounts given by the petitioner and other similar operators are not commissions, and hence Section 194(H) of the Act has no application and the Department s appeal against the view taken by the Karnataka High Court is also pending before the Apex Court for consideration. In that view of the matter, t .....

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urt submits that the main issue itself is on board before the Supreme Court, and in fact, the matter is set for hearing on 10.09.2015 as a first case. Considering the fact that there are conflicting judgments of Calcultta, Kerala and Delhi High Courts holding in favour of the Revenue and the judgment of Karnataka High Court which was held in favour of the assessee, the issue is fluid and has not attained finality. In the circumstances, when these matters came up for admission on 09.02.2015, this .....

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ncome-tax, has submitted that this Court, at the admission stage, did not consider it necessary to grant stay, and even at this state, this Court should not grant the relief sought for. He further submits that as a matter of fact, this Court, in assessee s own cases in I.T.T.A.Nos.291, 313 and 314 of 2013 for the assessment year 2007-2008, dismissed the appeals affirming the finding of the Tribunal holding that the amounts paid in the name of discounts, are commissions/brokerage, as such, there .....

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that whatever may be the view taken by the High Court of Karnataka, the fact remains that the jurisdictional High Court judgment is in favour of the Revenue. In that view of the matter, the learned Standing Counsel prays to dismiss the writ petitions. We have considered the rival submissions and perused the material placed on record. A careful reading of the judgments in I.T.T.A.No. 291 of 2013 and other appeals reveals that this Court did not discuss facts of the case, but merely affirmed the o .....

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il, came to a conclusion that Section 194(H) is not attracted to the transactions of the petitioner and similarly situated assessees. It is an admitted fact that the matter is on board before the Supreme Court and listed for hearing on 10.09.2015. Even though this Court had affirmed the order of the Tribunal holding that there is no question of law which is required to be considered, the fact remains that the appeals are pending before the Supreme Court against the judgments delivered by this Co .....

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