TMI Blog2014 (6) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... ter deducting Rs.2,500 per month for utilising the infrastructure facilities and Rs.1,500 of the survey fees, the remaining amount was paid to the doctors - The doctors are not entitled to take any gratuity, bonus etc. -They will only be paid fees for the services rendered by them, through a structured agreement. No specific working hours are prescribed to the professionals - For the purpose of treating the doctors as employees, they should be given specific assignment - There should be specific working hours, rules and regulations and they should be on the roll for PF as employees - They shall be given leave as per statutory provisions besides gratuity etc. - These factual aspects which are essential to treat the doctors as employees ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsultant should not be treated as an employee of the assessee. In reply, the assessee submitted that the hospital hires the services of the Doctors on payment basis. As per the terms of the contract, the doctors are required to look after the patients. However, working time method and manner of treatment are totally left to the discretion of the Doctor. The doctors are not subject to employment rules and regulation of the hospital. The doctors are also not paid PF and other retirement benefits. According to the assessee, there was no employer and employee relationship to treat the remuneration paid as salary. The contract for hiring a doctor is a contract for services and not a contract of services. The AO making his own interpretation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (MD). In those circumstances, the apex court while considering the relationship of the company and the managing director, held that the board of directors of the company are to manage the business of the company and they have right to assess the work of the managing director whenever deem it necessary. The power given to the managing director emanates from the articles of association, which prescribes limits of exercise of that power. The power of the assessee was exercised within the terms and limitations prescribed under the articles of association subject to control and supervision of the board of directors. Therefore, the apex court held that there was a relationship of employer and employee between the assessee and the managing dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facility of leave, PF, gratuity, bonus etc. Since such facilities are not given and what was paid to the doctors is only through a structured arrangement for the services rendered by them for two years, in our opinion, there is no employer and employee relationship existing. Therefore, the CIT (A) has rightly held that tax has to be deducted u/s 194J and not u/s 192 of the Act. Therefore, we do not find any infirmity in the order of the lower authority. Accordingly, the same is confirmed. Respectfully following the aforesaid order, we reject the grounds raised by the Revenue. 5. In the result, both the appeals filed by the Revenue stand dismissed. Order was pronounced in the Court on 18-5-2012. - - TaxTMI - TMITax - Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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