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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 15.02.2018 passed by the Commissioner (Appeals) is set-aside to the extent it upholds the order of the adjudicating authority confirming the demand of service tax under business support service and renting of immovable property‟ service. The remaining part of the order by which the Commissioner (Appeals) has remitted the matter to the adjudicating is maintained. Consequently, the penalties imposed on the appellant cannot be sustained and are set-aside. The appeal is accordingly allowed to the extent indicated above. - HON BLE MR. JUSTICE DILIP GUPTA, PRESIDENT And HON BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Shri Ashwini Sharma, Advocate - for the Appellant Shri Manoj Kumar, Authorized Representative (DR)- for the Respondent ORDER JUSTICE DILIP GUPTA M/s Shanti Mukund Hospital, New Delhi the appellant has filed this appeal to assail the order dated 15.02.2018 passed by the Commissioner (Appeals). The order passed by the adjudicating authority on the three show cause notices has been upheld, except to the extent it concerns miscellaneous receipts‟, for which the Commissioner (Appeals) has remanded the matter to the adjudicating authority to re-quantify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority and the authority was directed to verify the same and quantify the amount eligible for such benefit. 7. Shri Ashwani Sharma, learned counsel appearing for the appellant has challenged the order passed by the Commissioner (Appeals) so far as it has upheld the order passed by the adjudicating authority as regards the retention of the amount by the appellant under business support services and renting of immovable property service. Learned counsel pointed out that the appellant was actually engaged in providing healthcare services to the patients and to perform this activity the appellant availed services of doctors. Learned counsel, therefore, contended that the services provided by the doctors to the hospital i.e. the appellant is an essential part of the services provided by the hospital and in support of this contention, learned counsel for the appellant placed reliance upon the decision of the Tribunal in Sir Ganga Ram Hospital vs. Commissioner of Service Tax, New Delhi 2020 (43) GSTL 390 (Tri-Del.) . Learned counsel also submitted that the appellant did not provide any renting of immovable property‟ service and to support this contention placed reliance on the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd surgeries done by them in some cases, there is a provision for treating patients from low economic background without any financial benefits. On careful consideration of various terms and conditions and the scope of arrangement, we are of the considered view that such arrangement are for joint benefit of both the parties with shared obligations, responsibilities and benefits. The agreements do not specify the specific nature or list of facilities which can be categorized as infrastructural support to the doctors. The revenue model, as agreed upon between the contracting parties also, did not refer to any consideration attributable to such infrastructural support service. 6. The 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 appellant hospitals. We find this is only an inference and not coming out manifestly from the terms of the agreement. Here, it is very r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that is spite of such exemption available to health care services, a part of the consideration received for such health care services from the patients shall be taxed as business support service/taxable service is not tenable. In effect this will defeat the exemption provided to the health care services by clinical establishments. Admittedly, the health care services are provided by the clinical establishments by engaging consultant doctors in terms of the arrangement as discussed above. For such services, amount is collected from the patients. The same is shared by the clinical establishment with the doctors. There is no legal justification to tax the share of clinical establishment on the ground that they have supported the commerce or business of doctors by providing infrastructure. We find that such assertion is neither factually nor legally sustainable. 12. The aforesaid decision of the Tribunal has been accepted by the Department as is clear from the communication dated August 20, 2018 sent by the department. 13. This apart, the said decision of the Tribunal in the case of the appellant has been subsequently followed by the Tribunal in the following four decisions. (i) M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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