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TMI Blog2015 (6) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant : Dr. P.K. Srihari, Addl. CIT(DR) For the Respondent : Shri Sudheendra, C.A. ORDER Per N.V. Vasudevan, Judicial Member ITA No.704/B/14 is an appeal by the Revenue against the common order dated 21.10.2013 of the CIT(Appeals), Mysore relating to assessment year 2012-13, allowing the appeal of the assessee against the order dated 12.2.2013 of the Assessing Officer passed u/s. 201(1) 201(1A) of the Act. The assessee has filed cross objection against the very same order of the CIT(Appeals). 2. The assessee is a company engaged in the business of providing teleradiology services to hospitals and imaging diagnostic centres around the globe. In order to run its business, the assessee engaged services of radiologists i.e., Doctors with skill sets required for medical consultation to the clients of the assessee. The services of Doctors are availed under a contract for services after testing their medical skills. The Doctors are required to provide services round the clock and throughout the year. The assessee accordingly fixes time schedule for various Doctors to ensure their availability at any point of time. The Doctors, according to assessee, provide ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the case decided by the Tribunal in Elbit Diagnostics Ltd. (supra) are different, the points of difference could not be pointed out before us. Therefore facts of the case of the assessee and the case decided by the Tribunal in Elbit Diagnostics Ltd. (supra), in our view, are identical, as can be seen from a perusal of the chart given in para 5.1 of the impugned order of CIT(Appeals). In our view, the issue is squarely covered by the decision rendered by this Tribunal in the case of Elbit Diagnostics Ltd. (supra). 6. In the case of Elbit Diagnostics Ltd. (supra), this Tribunal took the following view:- 6. After going through the rival submissions and the material on record, we find that the assessee is a company engaged in the business of medical diagnosis under name and style M/s Elbit Medical Diagnostics Ltd. The assessee company engaged skilled people as Radiologists, Consultants, Physicians, Nuclear Medicines etc., The company requires the services of qualified doctors in these fields of Radiology, Pathology and Cardiology, Nuclear Medicine etc. who can render the service of interpreting the data and rendering the report of the diagnostic tests carried out by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to them and treating the same as salary. The fundamental aspect for deciding the employee-employer relationship depends on fact, whether there exist the contract of service or contract for service. In contract for service the master can order only what is to he done, whereas in contract of service master decides not only what has to be done but also how it has to be done. The following variables not only decide employee- employer relationship but these are also the main ingredients for contract of service and master servant relationship. The above mentioned skilled persons are engaged by the assessee company, but they conduct the skilled work at the strength of their specialised knowledge on subject. The assessee company simply follow the conclusion arrived by them on the basis of data/material brought to their knowledge. It is difficult to lay down any one test to distinguish the relationship of master servant from that of an employer and independent contractor. In many cases, the test laid down is that in case of master servant relation, master can order or require what is to be done and how it has to be done. But incase of independent contractor an employer can only sugge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occupation which is substantially the production or sale or arrangement for the production or sale of commodities . Black s Law Dictionary (5th edition) defines profession as a vocation or occupation requiring special, usually advanced, education and skill e.g. in law and medicine and observes that the labour and skill involved in a profession is predominantly mental or intellectual rather than physical or manual; 8. The school of thought, thus emerging from this deliberation is that; broadly speaking a profession will imply any vocation carried on by an individual, or group of individuals, requiring predominantly intellectual skill, dependant on individual characteristics of the person(s) pursuing that vocation, requiring specialized and advanced education or expertise. In the instant case the company is running a Diagnostic Centre. The engagement and nature of work of specialized person including doctors arc not controlled by the assessee company. They are even allowed to engage themselves in private practice subject, to no conflict with contractual arrangement entered between assessee and the above mentioned specialized skilled persons. They purely render skilled services to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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