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2016 (4) TMI 217 - HC - Income TaxTDS u/s 194J - ITAT held that the amounts paid to the doctors is not in the nature of "salary" and liable for deduction of tax at source as required under section 194J as "Professional fees" - Held that:- Tribunal was justified in law in holding that the amounts paid to the doctors is not in the nature of "salary" and liable for deduction of tax at source as required under section 194J as "Professional fees" even when assessee engaged the doctors as consultants and as per the agreements, these consultants would be governed by the rules and regulations of service, conduct rules, discipline etc., which proved that there existed an employee-employer relationship. All cases the correct method of approach is whether having regard to the nature of work there was due control and supervision by the employer. The receipt of remuneration for holding an office does not necessarily gives rise to relationship of master and servant between the holder of office and the person who pays the remuneration. Whether a person is a servant or an agent would be determined by the duties of employee, the nature of business, terms of his employment/engagement and kind of supervisory control over his work. A person who is engaged to manage the business may be servant or agent, according to the nature of his service and authority of his employment. The profession involves occupation required purely intellectual or manual skill, as held by the Hon'ble Supreme Court in the case of CIT Vs Mohandas (1965 (11) TMI 33 - SUPREME Court ). As decided in Elbit Medical Diagnostics Ltd. case [2010 (2) TMI 1163 - KARNATAKA HIGH COURT] while the duration spent at the premises by itself is not the criteria to come to the conclusion that there is a employer – employee relationship the appellant commissioner – the Tribunal which had occasion to examine the contract having opined that it is more in the nature of payment of contractual services and not in the nature of employment there is no justifiable or worthwhile reason made out to accept the submissions or to interfere with such finding. - Decided against revenue
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