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TMI Blog2012 (8) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ot getting salary, but the payment to them was in nature of professional fees. The contract with them by the assessee was one of contract `for service' and `not of service'. Therefore, tax was being rightly deducted at source under section 194J and section 192 of the Act had no application As the consultant doctors had filed their individual returns of their income showing professional fees received from the assessee and on that they had paid tax there was no loss to the Revenue. In such facts and circumstances, the Tribunal correctly concluded that charging interest was not justified - in favour of assessee. - Tax Appeal No.827 of 2011 - - - Dated:- 5-7-2012 - V M Sahai and N V Anjaria, JJ. For Appellant: Mrs Mauna M Bhatt J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal fees erroneously and in respect of that deduction of tax ought to have been made under the provisions of section 192 of the Act. As a result, he passed order under section 201(1) and 201(1A) of the Act and raised demand of Rs.24,17,674/- and interest amount of Rs.1,03,380/- respectively. 3.2. Upon the appeal preferred by the assessee against the order of the Assessing Officer, the CIT(A) by his order dated 03.07.2008 held that the payments in question made to the doctors were professional fees covered under section 194J of the Act, to which the provisions of section 192 would not apply on the ground that the 15 doctors in question were professional consultants who could not be treated as employees of the hospital. 3.3. The Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the assessee had rightly deducted tax under section 194J of the Act. 5.1. In the impugned order, the Tribunal has elaborately considered the aspect whether the agreement between the assessee and 15 doctors was a contract of service or it was a contract for service. The Tribunal observed as under: "6. ...Undisputed fact is that there are two types of Agreements. One of the covenant is stated to be in the nature of employer/employee agreement and the other is stated to be Fixed Salary Guarantee Money to Consultants (in short FGCs) contract. Before us the terms conditions of both the agreements were recited. Evidently there is a distinction. The distinction as pointed before us can be stream lined in short as under: (a) In ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the amount to be shared between the two. However, there is no such clause for regularly employed doctors. (g) The Consultant Doctors were required to take Professional Indemnity Insurance on their own. (h) The Consultant Doctors were not employed by Service Rules and Regulations but they were expected to follow the Code of Conduct and Ethics of Doctors. It was further observed: "To determine whether an amount received by a person is in the nature of salary or not, it is necessary to examine over all circumstances and primarily the terms and conditions of the employment. We have already scrutinized the terms and conditions and thereupon made certain distinctions as listed hereinabove. On the basis of those distinctions, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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