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TMI Blog2016 (1) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue under Section 260A of the Income Tax Act, 1961 (in short "the Act") against the order dated 8.8.2014 (Annexure A-3) passed by the Income Tax Appellate Tribunal, Chandigarh Bench "B", Chandigarh (hereinafter referred to as "the Tribunal") in ITA No. 353/CHD/2014 for the assessment year 2010-11, claiming the following substantial questions of law:- (i) Whether on the facts and circumstances of the case and in law, the Ld. ITAT was justified in holding that the relation with Guest Faculty (professional teaching staff) is equivalent in nature to an employer/employee relationship when there was no agreement/appointment or employer-employee relationship between the parties and that the Guest Faculties were merely professionals and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest faculty) for rendering professional services for teaching self-financing and other professional courses run by the assessee. The payment to guest faculty was made on the basis of lectures delivered by the guest faculty and not the pay scales as in the case of regular employees. Since the payments made were exceeding Rs. 20,000/-, the assessee was required to deduct the tax at source as envisaged under Section 194J of the Act. Accordingly, a show cause notice dated 28.2.2012 was issued to the assessee treating it as person-in-default under Section 201(1)/201(1A) of the Act. The Assessing Officer vide order dated 24.12.2012 (Annexure A-1) passed under Section 201(1)/201(1A) of the Act created a demand of Rs. 8,96,763/- and also initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant-revenue submitted that whether the agreement between the respondent-assessee and the guest faculty lecturers engaged by the college-assessee was a 'contract for service' or a 'contract of service' would be a question of fact dependent upon appreciation of various factors enunciated by this Court in The Commissioner of Income Tax (TDS), Chandigarh v. M/s Ivy Health Life Services Pvt. Ltd., Mohali, Punjab, ITA No. 142 of 2013 decided on 26.8.2015. It was urged that the Tribunal who is the final fact finding authority has not recorded any such clear finding of fact regarding 'contract of service' or 'contract for service' between the respondentassessee and the guest faculty lecturers based on guiding princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even the Apex Court in Workmen of Nilgiri Coop. Market Society Limited v. State of Tamil Nadu and others, 2004(2) RSJ 466 (SC) observed that the question whether the relationship between the parties is one of the employer and employee is a pure question of fact. The control test and the organization test are not the only factors whereas several other factors viz. who is the appointing authority; who is pay master; who can dismiss; how long alternative service lasts; the extent of control and supervision; the nature of the job e.g. Whether it is professional or skilled work; nature of establishment and the right to reject, are also required to be scanned before arriving at the conclusion of the employer-employee relations. This Court had rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of establishment; (h) the right to reject, are also required to be scanned before arriving at the conclusion of employer-employee relationship."
8. Accordingly, the impugned orders are set aside and the matter is remanded to the Tribunal to decide the same afresh keeping in view the principles laid down by this Court in M/s Ivy Health Life Sciences Pvt. Ltd., Mohali, Punjab's case (supra) and after hearing the parties and by passing a speaking order in accordance with law. Needless to say anything observed hereinbefore shall not be taken to be expression of opinion on the merits of the controversy. X X X X Extracts X X X X X X X X Extracts X X X X
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