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TMI Blog2018 (6) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... ave supported the commerce or business of doctors by providing infrastructure - appeal allowed - decided in favor of appellant. - ST/51175/2015-DB - Final Order No. 52179/2018 - Dated:- 31-5-2018 - Mr. Anil Choudhary, Member (Judicial) and Mr. C.L. Mahar, Member (Technical) Ms. Radhika Chandrasekhar, Advocate - for the appellant Shri Sanjay Jain, D.R. - for the respondent ORDER Per Anil Choudhary: The appellant M/s Apollo Hospitals, Bilaspur are engaged in providing the health care facility. To provide the medical services to the patients visting the hospital of the appellant, the appellant have engaged professional and doctors on contractual basis. These doctors are provided space in the hospital with the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant - Ms. Radhika Chandershekhar urges that the issue is no longer res integra. The Division Bench of this Tribunal in batch of appeals wherein the appellant was one of the appellant vide Final Order No. 58226-58232/2017 dated 6.12.2017 have held as follows: 4. We have heard both the sides and perused the appeal records. We have also perused specifically the terms of some of the agreements on record. The dispute in the present appeals is with reference to the tax liability of the appellant hospitals under the category of business support services. The statutory provision for the said tax entry is as below: Section 65 (104c) support services of business or commerce means services provided in relation to business or com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll receive a percentage of share of the collection from the patients in case of consultation, procedures and surgeries done by them. In some cases, there is a provision for treating patients from low economic background without any financial benefits. On careful consideration of various terms and conditions and the scope of arrangement, we are of the considered view that such arrangement are for joint benefit of both the parties with shared obligations, responsibilities and benefits. The agreements do not specify the specific nature or list of facilities which can be categorized as infrastructural support to the doctors. The revenue model, as agreed upon between the contracting parties also, did not refer to any consideration attributable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner as required by the patients. As can be seen that the appellants hospitals are actually availing the professional services of the doctors for providing health care service. For this, they are paying the doctors. The retained money out of the amount charged from the patients is necessarily also for such health care services. The patient paid the full amount to the appellant hospitals and received health care services. For providing such services, the appellants entered into an agreement, as discussed above, with various consulting doctors. We do not find any business support services in such arrangement. 7. The inference made by the Revenue that the retained amount by the hospital is to compensate the infrastructural support provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igence and unless the profession carried on by (a person) also partakes of the character of a commercial nature the professional activity cannot be said to be an activity of a commercial character. 8. Applying the above ratio and examining the scope of the tax entry for BSS, we are of the considered view that there is no taxable activity identifiable in the present arrangement for tax liability of the appellant hospitals. 9. Under negative list regime w.e.f. 01.07.2012, the health care services are exempt from service tax. Earlier the health care services were only taxed for specified category of hospitals and for specified patients during the period 01.07.2010 to 01.05.2011. With effect from 01.05.2011, health care services were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.25/2012 will show that a clinical establishment providing health care services are exempted from service tax. The view of the Revenue that in spite of such exemption available to health care services, a part of the consideration received for such health care services from the patients shall be taxed as business support service/taxable service is not tenable. In effect this will defeat the exemption provided to the health care services by clinical establishments. Admittedly, the health care services are provided by the clinical establishments by engaging consultant doctors in terms of the arrangement as discussed above. For such services, amount is collected from the patients. The same is shared by the clinical establishment with the doct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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