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TMI Blog2013 (12) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... was receiving Rs.90,000/- per month. The assessee has furnished a letter of the said institution with a reference to his employment. In the said letter, the terms and conditions were that the "Retainership Contract" shall be for a period of two years starting from 15th of July, 2009. There was a clause of consolidated fees of Rs.12,00,000/- per annum. The assessee was required to co-ordinate the time table with the institution. The Assessee was not entitled to any benefits or facilities or allowance as those were applicable to the employees of the institute. It was mentioned that the said contract was liable for termination by giving three months notice in writing. So the claim of the assessee was that the employment was in the nature of "contract of service". On the other hand, AO has taken a view that there was employer and the employee relationship. The income was treated under the head "Income from Salary" and the expenses claimed in P & L A/c. of Rs.2,27,969/- was disallowed. The matter was carried before the first appellate authority. 3. According to the learned CIT(A), it was not a "contract of service" but the assessee was an employee hence, the AO has rightly taxed the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, not to be treated as a salaried employee. 5. On the other hand, from the side of the Revenue, Learned DR, Mr. J.P. Jangid, has supported the orders of the authorities below. He has pleaded that in terms of the provisions of Section 17 of the IT Act "Salary" includes wages, any fees, perquisite etc., therefore, the assessee has received the amount under the head "Salary" because the said receipt was "fees" in the nature of "salary". Learned DR has also argued that specific timings were provided in the terms of employment as in the case of any other employee. Hence, the assessee is a regular employee of the Institute. The assessee has been provided accommodation and car in the like manner as if the assessee is an employee of the Institute. He has, therefore, concluded that the assessee should be treated as an employee of the Institute. 6. We have heard the submissions of both the sides. We have also perused the material available on record. Certain evidences which were before the AO since inception were, for e.g., a report of the auditor, prescribed for professionals. The assessee has, therefore, furnished the Audit Report by considering himself as a professional. An another sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is received in addition to the Salary, but not a part of the salary if received independently. 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 hereby hold that the terms and conditions in respect of the impugned doctors who are under FGCs are not akin to the salaried employees. Their relationship with the hospital, thus, cannot be said to be an employer-employee relationship. For this reason the deduction of tax at source ought to have been made as per the provisions of Sec. 194J of the Act. 7.1 At this juncture, before we further proceed, it is better to know the v meanings of the two propositions, viz. "OF" and "FOR". As per the Chambers 20th Century Dictionary, the meaning of the proposition "OF" is from, out from, among, made from, belonging to, owing to or derived from. If we use these meanings of the proposition "OF", then the term "contract of service" can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search Institute reported at TOO) 75 ITD 484 (Cal.) it was opined that when a person is engaged to manage a business, then he may be a servant or an agent according to the nature of a service. In a situation, where the liability for deduction of tax was fulfilled u/s.192 of IT Act, then it is established that there was relationship of master and servant. Considering the terms and conditions in that case, it was held that there was no relationship of master and servant. Lastly, our attention has also been drawn on Toyota Kirloskar Motor (P.) Ltd. (2012) 24 taxmann.com 149 (Bang.) for the legal proposition that the provisions of section 115-WB(2) are required to be invoked if there is an employer-employee relationship. Rather, Circular No.8 of 2005 also prescribes that the provisions of section 115WB can be invoked only if there is an employer-employee relationship. The Finance Minister in the speech while introducing of provisions of FBT has stated that when the benefits are fully attributable to the employee, then tax in the hands of the employer. The rationale behind the introduction of FBT provisions thus is to tax a benefit which is enjoyed collectively by the employees. Hithert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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