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TMI Blog2019 (1) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant have entered into agreements with various doctors and specialist doctors whereby the appellant provides the basic infrastructure facilities and administrative support to the visiting doctors and specialist doctors. As per the agreement a part of the doctors visiting consultation fee is retained by the appellant in view of the consultant's making use of medical facilities, such as, radiology, pathology and all diagnostic available with the hospital and other administrative facilities. The department is of the view that the appellant is providing support services of business or commerce as defined under Section 65 (104c) readwith Section 65 (105) (zzzq). In as much as the part of the fee retained by the appellant was in lieu of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive customers, telemarketing, processing of purchase orders and fulfillment services, information and tracking of delivery schedules, managing distribution and logistics, customer relationship management services, accounting and processing of transactions, operational or administrative assistance in any manner, formulation of customer service and pricing policies, infrastructural support services and other transaction processing. Explanation. - For the purposes of this clause, the expression 'infrastructural support services' includes providing office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security." 5. The claim of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings by the Revenue, initiated against the appellant hospitals, are mainly on the inference drawn to the effect that the retained amount by the hospitals out of total charges collected from the patients should be considered as an amount for providing the infrastructure like room and certain other secretarial facilities to the doctors to attend to their work in the appellants hospitals. We find this is only an inference and not coming out manifestly from the terms of the agreement. Here, it is very relevant to note that the appellant hospitals are engaged in providing health care services. This can be done by appointing the required professionals directly as employees. The same can also be done by having contractual arrangements li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so. Reading the statutory provisions for BSS, we note that the services mentioned therein are "provided in relation to business or commerce." As such, to bring in a tax liability on the appellant hospital, it should be held that they are providing infrastructural support services in relation to business or commerce. That means, the doctors are in business or commerce and are provided with infrastructural support. This apparently is the view of the Revenue. We are not in agreement with such proposition. Doctors are engaged in medical profession. As examined by Hon'ble Gujarat High Court in Dr. K.K. Shah (supra), though in an income-tax case, we note that there is a discernable difference between "business" and "profession". The Gujarat High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30/2011-S.T. After introduction of negative list tax regime, Notification No. 25/2011-S.T. exempted levy of service tax on health care services rendered by clinical establishments. We have examined the scope of the terms „clinical establishments‟ and „health care services‟. The notification defines these terms. The term „clinical establishments‟ is defined as below : "Clinical establishment" means hospital, nursing home, clinic, sanatorium or any other institution by whatever name called, that offers services or facilities requiring diagnosis or treatment of care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India, or a place established as an indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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