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TMI Blog2023 (11) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... inate bench of Delhi Tribunal in its decision rendered on 27.06.2022 in assessee s own case [ 2022 (7) TMI 846 - ITAT DELHI] to hold that the provisions of section 194J of the Act are applicable to the assessee and not those of section 192 of the Income tax Act 1961 therefore, the appellant cannot be treated as an assessee in default in so far as the question of deducting tax at source in respect of doctors engaged as retainers and consultants was concerned. Decided in favour of assessee. - Dr. Brr Kumar, Accountant Member And Ms. Astha Chandra, Judicial Member For the Assessee : Shri R.M. Mehta, CA For the Department : Shri Vivek Kumar Upadhyay, Sr. DR ORDER PER ASTHA CHANDRA, JM The appeal filed by the Revenue is directed against the order dated 31.10.2022 of the Ld. Commissioner of Income Tax (Appeals), NFAC, Delhi ( CIT(A) ) pertaining to Assessment Year ( AY ) 2012-13. 2. The Revenue has taken the following grounds of appeal:- 1. That on the facts and in the circumstances of the case, the Ld. CTT(A) has erred in holding that appellant cannot be treated as an assessee in default in so far as the question of deducting tax at source in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors formed the core of the assessee s business and their expertise are used to run the company and not just for support to the company. 3.1 Accordingly, the Ld. Assessing Officer ( AO ) held that the payment to the consultant-doctors and retainer-doctors fall under the head salary and the assessee was liable to deduct TDS from the payment to consultantdoctors and retainer-doctors as well along with the on-roll doctors at the rate applicable in the case of salary. On this basis short deduction of TDS was computed in FY 2011-12 relevant to AY 2012-13 as under:- NAME PAN AMOUNT u/s 194J u/s 192B Difference Dr. Tripat Chaudhary AAEPC7216L 15699542 1569954 4561863 2991908 Vikram Walia AALPW6932E 14907899 1490790 4324370 2833580 Dr. Raghuram Mallaiah ACLPM6319H 13247204 1324720 3826161 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AGVPB1381N 1365783 136578 261735 125157 Dr. Anita Sharma ABKPS4578A 1315342 131534 246603 115068 Dr. Deepak Sikhriwal BFFPS4143K 1307197 130720 244159 113439 Dr. Kumkum Vatsa AAHPV0593J 1299810 129981 241943 111962 Dr. Raj Bokaria AAIPB9286H 1275023 127502 234507 107005 Dr. Ashu Sawhney ABBPS1629K 1252792 125279 227838 102558 Dr. Kamal Buckshee AAFPB6154P 1154756 115476 198427 82951 Dr. Anil Malik AGVPB1381N 1376746 137675 265024 127349 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such payment being made, there is an abatement of liability on the part of the deductor, so that no interest can be levied for non-deduction of tax (pl. see CIT vs Adidas India Marketing P. Ltd. (2007) 288 ITR 379 (Del.). Tax paid directly by the assessee cannot be recovered again from the deductor as there is no provision for refund of tax wrongly deducted and deposited. As a result of the explanation inserted by the Finance Act, 2008 w.e.f. 01.06.2003 the liability to deduct tax gets abated the moment there is a direct payment. Section 201 The Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverages (P) Ltd. vs CIT (2007) 293 ITR 226 (SC) took the view that no demand u/s 201 could be enforced once the deductor had satisfied the AO that the deductee had paid the taxes. The other judgements are Children's Education Society vs DCIT (TDS) (2009) 319 ITR 409 (Kar), TRO vs Bharat Hotels Ltd. (2009) 318 ITR (At) 244 (Bang:), Nai Rajdhani Path Pramandal vs CIT (2016) 384 ITR 328 (Pat) and Ghaziabad Development Authority vs Union of India (2017) 395 ITR 597 (All.) The proviso to section 201 inserted by the Finance Act, 2012 w... 01.07.2012 recognizes the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-employee relationship Another aspect to which one would refer is the distinction between a contract for service and a Contract of service the former implying a contract whereby one party undertakes to render service to another in the performance of which he is not subject to detailed directions and control but 1 exercises professional skill using his own knowledge and discretion and the latter implying relationship of master and servant with an obligation to obey orders in the work to be performed. Here again there is unanimity in the view expressed in various reported decisions that the former does not create a master servant relationship. In view of the numerous judgements relied upon including those in the cases of appellant itself and group institutions, it is apparent that the issue of TDS is no longer res integra. Your goodself may be pleased to quash the order passed by the AO. Prayed accordingly, 5. The Ld. CIT(A), following the decision of his predecessor in assessee s own case on identical issue quashed the impugned order of the Ld. AO. 6. Dissatisfied, the Revenue is in appeal before the Tribunal and both the grounds relate thereto. 7. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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