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2023 (5) TMI 1205 - AT - Income TaxTDS u/s 194C or 192 - short deduction of TDS u/s. 201(1) and interest thereon u/s. 201(1A) - remuneration paid to the consultant doctors - existence of employer and employee relationship - when the engagement of the services of the doctors can be seen to be in the nature of employment? - survey team observed that there exists an employer and employee relationship between consultant doctors and the appellant and thus, the assessee should have deducted TDS u/s. 192 for payment made to the consultant doctors - HELD THAT:- AO grossly misunderstood the model employed by the assessee for employing employee doctors and consultant doctors and took one sample report of an employee doctor and observed that even consultant doctors are governed by said report - fact remains that as per details filed by the assessee, consultant doctors are not governed by said rules and are independent. AO is completely erred in coming to the conclusion that there is an employer and employee relationship between consultant doctors and appellant company and remuneration paid to said doctors is salary which attracts provisions of section 192. As there is absence of employer and employee relationship. Therefore, opined that the department does not have individual materials to reassess the income of consultant doctors. As in CIT v/s. Grant Medical Foundation [2015 (2) TMI 457 - BOMBAY HIGH COURT] examined at length the issue as to when the engagement of the services of the doctors can be seen to be in the nature of employment. In this case also the Hon'ble High Court held the relationship between Professional Doctor consultant and the Hospital cannot be treated as Employer Employee relationship, unless there exist the specific Rules and Provisions in the contract of appointment between the consultant and Hospital. There is no error in the reasons given by the CIT(A) to delete additions made towards short deduction of TDS u/s. 201(1) and interest thereon u/s. 201(1A) in respect of payment made to consultant doctors. Thus, we are inclined to uphold the findings of the ld. CIT(A) and reject ground taken by the revenue. Short deduction of TDS - payment to annual maintenance charges for maintenance of medical equipment u/s. 194J OR 194C - HELD THAT:- AMC charges paid by the appellant to various contractors is a simpliciter works contract charges paid for repair and maintenance of medical equipment, which cannot be considered as fees for technical services as defined u/s. 194J of the Act, because said services does not parse required specialized technical knowledge. As decided in case of M/s. Saifee Hospital [2019 (4) TMI 710 - BOMBAY HIGH COURT] payment for services rendered towards maintenance of medical equipment, is payment for work contract covered u/s. 194C and the same does not involve any technical service, which would require deduction of tax at source u/s. 194J of the Act. CBDT Circular No. 715 dated 08.08.1995, has also clarified the applicability of TDS provisions in respect of payment made to AMC provider by way of question no. 29 and answered that routine, normal maintenance contract which includes supply of spares will be covered u/s. 194C - there is no error in the reasons given by the CIT(A) to delete additions made towards short deduction of TDS on payment made to AMC charges u/s. 201(1) and interest thereon u/s. 201(1A) - Decided against revenue.
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