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2024 (4) TMI 300 - AT - Service TaxLevy of Service tax - Business Support Services - providing infrastructure and administrative facilities to the visiting doctors - Invocation of Extended period of Limitation - HELD THAT:- As per the terms and conditions stipulated in the agreements between the appellant and the visiting doctors, such visiting doctors are being paid in proportionate to the actual work done by them, subject to the minimum fee assurance provided by the appellant. Further, it is the appellant’s hospital that allocates a specific visiting doctor to the patients and patient’s medical records are maintained and retained by the appellant’s hospital. Also, the bills for treatment are raised by the appellant’s hospital and not by the visiting doctors and the payments thereof are also collected by the appellant’s hospital. Further, the visiting doctors are not allowed to undertake their independent practice/profession by availing the appellant hospital’s infrastructure. Even in the show cause notice, it is mentioned that “consultants/doctors are required to work for the hospital” which clearly indicates that the doctors are working with the appellant’s hospital and it is the visiting doctors who, in fact, are service providers to the appellant’s hospital as the appellant’s hospital is availing the services of such visiting doctors, for which they are paid by the said hospital as per the agreement and not the vice versa. Further, the appellant’s hospital, being a service recipient, is deducting TDS in terms of Section 194 of the Income Tax Act, 1961 from the remuneration paid to the visiting doctors. This issue is no more res integra and has been settled in favour of the assessee by various decisions. In the case of M/S SIR GANGA RAM HOSPITAL, BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE, APPOLLO HOSPITALS, M/S MAX HEALTH CARE INSTITUTE LTD VERSUS CCE DELHI-I, CCE&ST INDORE, CCE&ST RAIPUR, CST NEW DELHI AND CST DELHI VERSUS M/S INDRAPRASTHA MEDICAL CORPORATION LTD [2017 (12) TMI 509 - CESTAT NEW DELHI], it was observed by the Tribunal that Applying the above ratio and examining the scope of the tax entry for BSS, we are of the considered view that there is no taxable activity identifiable in the present arrangement for tax liability of the appellant hospitals. The decision of Sir Ganga Hospital’s case was followed in the case of CCE & ST, PANCHKULA, DELHI-IV VERSUS ALCHEMIST HOSPITAL LIMITED, ARTEMIS MEDICARE SERVICES LIMITED (VICE-VERSA) [2019 (3) TMI 1331 - CESTAT CHANDIGARH] and it was held by the Tribunal that “respondent-assessee were not provided any Business Support Service to the consultants/doctors or patient, therefore, no service tax is payable by respondent-assessee under the category of Business Support Service” and in the result, the appeal filed by the Revenue was dismissed and the appeal filed by the assessee was allowed. Extended period of Limitation - HELD THAT:- In the present case, there is no suppression on the part of the appellant to invoke the extended period of limitation and the Revenue has failed to establish ingredients of fraud, collusion, wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or Rules with an intent to evade the payment of tax as provided in Section 11A(4) of the Central Excise Act, 1944 as applicable to the service tax also. The impugned order is not sustainable in law and is set aside - appeal allowed.
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