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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 ..... tors. Contractual tenure of these doctors was for a period of one year which would be renewable depending on the performance of the doctor to be assessed by the Medical Advisory Council of the hospital. These doctors are not entitled to benefits of leave encashment, gratuity, provident fund, superannuation benefits etc. which regular employees of the hospital are. These doctors would on their own obtain indemnity insurance. These are clear indications that the relationship was not one of employer-employee. The Tribunal has correctly applied the decision of this Court in the case of Grant Medical Foundation's case [2015 (2) TMI 457 - BOMBAY HIGH COURT] wherein the Court has laid down the propositions and principles to be applied while testing such a bilateral relationship between the hospital and the doctors. No question of law - INCOME TAX APPEAL NO.676 OF 2018 - - - Dated:- 5-3-2019 - AKIL KURESHI M.S. SANKLECHA, JJ. Mr. P.C. Chhotaray for the Appellant. P.C.: 1. This Appeal has filed by Revenue to challenge the judgment of the Income Tax Appellate Tribunal raising following questions of law for our consideration : (i) Whether, on the facts and in the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very assessee. While dismissing the Revenue's Appeal 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 length the issue as to when the engagement of the services of the doctors can be seen to be in the nature of employment. In this context, after referring to the terms of engagement of the doctors, this Court held and observed as under : 37) In relation to other category of doctors there was a dispute. The Assessing Officer and the Commissioner concluded that though these categories of do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able pay with written contracts the terms and conditions of Dr Zirpe and Dr Phadke have been referred and the Tribunal concluded that neither of the doctors was entitled to provident fund or any terminal benefits. Both were free to carry on their private practice at their own clinic or outside Hospitals but beyond the Hospital timings. Both doctors treated their private patients from the hospital premises. All of which could be seen as indicators that they were not employees but independent professionals ( see paragraph 14). However, they were found to be sharing a overwhelming number of attributes of employees. In relation to that the contract seems to have been bifurcated or split up or read in bits and pieces by the Commissioner. The Leave Rules were held to be applicable in case of Dr Phadke and there were fixed timing and fixed remuneration. Now, it is inconceivable that merely because for a certain period of time or required number of hours 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not find any such stipulation. In these circumstances, the only agreement between the parties being that certain private patients or fixed or specified number seen by the consultant could be admitted to the assessee hospital. That would not denote a binding relationship or a master servant arrangement. A attractive or better term to attract talented young professionals and too in a competitive world would not mean tying down the person or restricting his potential to one set up only. The arrangement must be looked in its entirety and on the touch stone of settled principles. The Tribunal was right in reversing the findings of the Assessing Officer and the Commissioner. There was a clear perversity and contradiction in the findings, particularly pointed out by us hereinabove. 8. Thus, the Court was influenced b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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