TMI Blog2023 (1) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner 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. 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). Given the aforesaid position, we are of the view that the best way forward in these cases would be to direct the CIT(A) to dispose of the six (6) appeals in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.1971/2023 W.P.(C) 499/2023 CM No.1983/2023 W.P.(C) 500/2023 CM No.1985/2023 W.P.(C) 501/2023 CM No.1987/2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his, 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013-2014 2012-2013 Rs.2,30,55,435/- 08.09.2020 16.12.2022 Filed 8. It is contended by learned counsel for the petitioner that appeals against each of the orders passed by the AOs, have been preferred with the Commissioner of Income Tax (Appeals) [in short, CIT(A) ]. Therefore, learned counsel for the petitioner says that pending the decision in the appeals, the demand raised against the petitioner should not be enforced, inter alia, for the reason that Section 194H would have no applicability in the instant case. The cost of free samples cannot be construed as either commission or brokerage. It is only when any person, not bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, i.e., W.P.(C)No.526/2023 and W.P.(C)No.502/2023, the petitioner would file its written submissions within two (2) weeks of notice being issued in the pending appeals. 13. We may also note that Mr Rai argued that the petitioner be called upon to pay 15% of the demand, as directed in the order 16.12.2022, in at least two (2) out of the eight (8) cases, in which notice has not been issued and written submissions have not been filed. 14. We are unable to accept the contention of Mr Rai for two reasons. Firstly, the issue involved in all the appeals pending consideration before the CIT (A) is common. Six (6) of eight (8) appeals are ripe for a decision. The decision in these appeals would also govern, even according to Mr Rai, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it within the next eight (8) weeks. 17. Pending the disposal of the appeals, the impugned order in the above-captioned writ petitions i.e., the order dated 16.12.2022, shall remain stayed. 18. Once CIT(A) passes an order in the pending appeals, the fate of the petitioner will be governed by the order that would be passed by the CIT(A). 19. Needless to add, the petitioner will have liberty to take recourse to an appropriate remedy, albeit, as per law, if it is aggrieved by the order passed by the CIT(A). 20. The above-captioned writ petitions are, accordingly, disposed of in the aforesaid terms. Consequently, the pending applications shall also stand closed. 21. It is, however, made clear that nothing stated hereinabove will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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