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2019 (3) TMI 543 - HC - Income TaxTDS u/s 192 or 194J - payments to the doctors - employer-employee relationship between the Assessee and Full Time Consultant Doctors - ITAT holding that there does not exist employer-employee relationship between the Assessee and Full Time Consultant Doctors and the payments made to them by the assessee come in the purview of Sec.194J - HELD THAT:- As recorded that the doctors were entitled to admit, investigate and provide treatment to the patients and that the doctors would be responsible for their clinical care. The doctors were responsible for supervising the subordinate staff whereas the facilities of the hospital staff, paramedical and nursing staff would be provided by the hospital along with the necessary equipment to render services to the patients. 15% of the fee collected by the doctors would be deducted by the hospital as its share and the balance 85% would be paid to the doctors after deduction of tax at source. In case of fees not being paid by patients, the same would be the liability of the concerned doctors. It was on this basis the Tribunal had come to the conclusion that the relationship between the hospital and the doctors cannot be treated as one of the employer-employee relationship. It was noted that the earnings of the doctors would be dependent upon the patients that the doctors would attract. We do not find that the Tribunal has committee any error. Significant features of the contractual relationship between the doctors and the hospital in the present case were that the hospital would provide support service where a particular patient would be treated by a doctor. The sharing was in the proportion of 15% v/s. 85% between the hospital and the doctors. Contractual tenure of these doctors was for a period of one year which would be renewable depending on the performance of the doctor to be assessed by the Medical Advisory Council of the hospital. These doctors are not entitled to benefits of leave encashment, gratuity, provident fund, superannuation benefits etc. which regular employees of the hospital are. These doctors would on their own obtain indemnity insurance. These are clear indications that the relationship was not one of employer-employee. The Tribunal has correctly applied the decision of this Court in the case of Grant Medical Foundation's case [2015 (2) TMI 457 - BOMBAY HIGH COURT] wherein the Court has laid down the propositions and principles to be applied while testing such a bilateral relationship between the hospital and the doctors. - Decided in favour of assessee. TDS u/s 194J OR 194C - Payment to a contractor providing maintenance and support services - HELD THAT:- CIT (Appeals) and the Tribunal have concurrently held that the contractor was meant to carry out maintenance and the repair work and therefore his services could not have been categorized as providing technical services. We do not find any error in such finding.
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