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TMI Blog2019 (3) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, for deduction of tax at source from payment towards Annual Maintenance Contracts in respect of various hospital equipments, without appreciating that the maintenance of specialized machines in hospitals calls for skilled professional/technical engineers, and hence such maintenance charges are in the nature of fees for technical services within the meaning of section 194J of the Act? (ii) Whether, on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in holding that the payments made by the assessee to Full Time Consultant Doctors fall within the purview of section 194J, and not under section 192 of the Act as held by the Assessing Officer, for the purpose of deduction of tax at source, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal No.1294 of 2016, in this respect, we had made the following observations : 6. The Assessing Officer did not accept such a contention, upon which the Assesseee filed an Appeal. The Commissioner (Appeals) who also rejected the Appeal, upon which the issue reached the Tribunal in an Appeal filed by the Assessee. The Tribunal examined the terms of engagement of the doctors by the Asseseee Trust and came to a conclusion that the issues were squarely covered in favour of the Assessee by virtue of the judgment of the Division Bench of this court in the case of CIT v/s. Grant Medical Foundation reported in 375 ITR 049. Thereupon the Revenue has filed this Appeal. 7. In Grant Medical Foundation's case (Supra) this Court examined at lengt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee trust. 38) However, in cases of other doctors the contract would have to be read as a whole. It would have to be read in the backdrop of the relationship and which was of engagement for certain purpose and time. The skill of the doctors and their expertise were the foundation on which an invitation was extended to them to become part of the assessee which is a public charitable trust and rendering medical service. If well known doctors and in specified fields are invited to join such hospitals for a fee or honorarium and there are certain terms drawn so as to understand the relationship, then, in every case such terms and the attendant circumstances would have to be seen and in their entirety before arriving at a conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urs the doctors have to be at Ruby Hall Clinic means they will not be entitled to visit any other hospital or attend patients at it necessarily. The anxiety appears is not to inconvenience the patients visiting and seeking treatment at the Ruby Hall Clinic. If specialized team of Doctors, Experts and Experienced in the field are part of the Assessee's Clinic, then, their availability at the clinic has to be ensured. Now, the trend is to provide all facilities under one roof so that patients are not compelled to go to several clinics or Hospitals. Hence, a diagnostic center with laboratories and clinics, consultation rooms, rooms with beds for indoor treatment, critical care, treatment for kidney, lever, heart, brain, stomach ailments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5th November, 2008 and 14th May, 2009 do not contain any admission by the assessee. All that the assessee admitted is the existence of a written contract and with the above terms. Those terms have also been perused by us minutely and carefully. We do not find that any stipulations regarding working hours, academic leave or attachments would reveal that these doctors are employees of the assessee. In fact, Dr Zirpe was appointed as a Junior Consultant on three years of contract. He was paid emoluments at fixed rates for the patients seen by him in the OPD. That he would not be permitted to engage himself in any hospital or nursing home on pay or emoluments cannot be seen as an isolated term or stipulation. In case of Dr Uday Phadke, we do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilities of the hospital staff, paramedical and nursing staff would be provided by the hospital along with the necessary equipment to render services to the patients. 15% of the fee collected by the doctors would be deducted by the hospital as its share and the balance 85% would be paid to the doctors after deduction of tax at source. In case of fees not being paid by patients, the same would be the liability of the concerned doctors. It was on this basis the Tribunal had come to the conclusion that the relationship between the hospital and the doctors cannot be treated as one of the employer-employee relationship. It was noted that the earnings of the doctors would be dependent upon the patients that the doctors would attract. 10. We do no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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