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TMI Blog2021 (7) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... by them during the relevant period - the consultant doctors were not entitled to any fix remuneration. There was no specific timing and attendance record maintained by hospital with respect to such doctors and this category of doctors was not be eligible for any leave, provident fund, gratuity, bonus etc. and were not subject to admission or retirement from services. They were not entitled to several benefits as allowed to regular employees such as medical reimbursement. Insurance, leave encashment etc. All these facts and features would bolster assessee s claim that there was no employer-employee relationship between the assessee and consultant doctors. Therefore, the tax was rightfully deducted u/s 194J. - I.T.A. No. 7297/Mum/2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re essentially in nature of salaries? As evident, the revenue is aggrieved by findings of Ld. CIT(A) that the payment made by assessee hospital to certain consultant doctors would require deduction of tax at source u/s 194J as applicable to professional payments and not u/s 192 as applicable to salaried employees. 2. The undisputed position that emerges is that Ld. CIT(A) has primarily followed the order of Tribunal in assessee s own case for AY 2008-09, ITA No.2681/Mum/2015 order dated 26/08/2016 while rendering his adjudication. Nothing has been shown to us that the aforesaid order has ever been reversed by any higher judicial authority. No factual distinction could be point out before us. In the said background, our adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to consultant doctors. The doctors would not come to the hospital it there was no patients related to their specialty / admitted under them. Therse professionals would not work exclusively for the assessee hospital rather they render similar services directly or indirectly to other entities as well as at their private clinic since there were no such restriction mentioned in the letter issued to them. 3.2 However, the AO based on survey findings u/s.133A conducted on assessee on 30/10/2010 opined that services of the doctors were utilized only for the purpose of patients coming to the assessee hospital. These doctors were expected to serve the patients on all days at the hospital. The doctors were expected to work as per the rules and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of weaker / indigent patients, the visiting doctor would get no fee or less fee depending upon the fee collected from such patients. It was also reiterated that the hospital charged their patients under various heads like room charges, operation theatre charges, medicines, doctors fee etc. In case of visiting doctors, fees collected from patients was paid to them after retaining hospitals share in the fee. There was no specific timing and attendance record maintained by hospital with respect to such doctors. Further, the consultant doctors would not be eligible for any leave, provident fund, gratuity, bonus etc. and were not subject to admission or retirement from services. They were not entitled to several benefits as allowed to regular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Mumbai Tribunal in the case of Jaslok Hospital Research Centre (ITA No. 4043/Mum/2015) taking the same view, was also noted. 4.5 Finally, it was concluded that the assessee was not liable to deduct tax u/s 192 of the Act and it was not to be treated as assessee-in-default. Aggrieved, the revenue is in further appeal before us. Our findings and Adjudications 5. Going by the factual matrix as enumerated in the preceding paragraphs, it could be noted that the terms of arrangement with consultant Doctors was different from employee-doctors. The consultant doctors were paid based on the services rendered by them and on the basis of doctors fees collected by the hospital from the patients. The same is evident from the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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