TMI Blog2016 (1) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... it would partake the character of salary which is dependent upon masterservant relationship. It is always a vexed question to determine whether employer-employee relationship exists between the parties or not. There is no strait jacket formula prescribed under any statute or by any pronouncement on the basis of which it could be said that in a given eventuality, it would be characterized as employer-employee relationship. Such relationship depends upon several factors taken together. Even the Apex Court in Workmen of Nilgiri Coop. Market Society Limited v. State of Tamil Nadu and others, (2004 (2) TMI 688 - SUPREME COURT) observed that the question whether the relationship between the parties is one of the employer and employee is a pure qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Income Tax Appellate Tribunal, Chandigarh Bench B , Chandigarh (hereinafter referred to as the Tribunal ) in ITA No. 353/CHD/2014 for the assessment year 2010-11, claiming the following substantial questions of law:- (i) Whether on the facts and circumstances of the case and in law, the Ld. ITAT was justified in holding that the relation with Guest Faculty (professional teaching staff) is equivalent in nature to an employer/employee relationship when there was no agreement/appointment or employer-employee relationship between the parties and that the Guest Faculties were merely professionals and therefore Section 194J of the Act was applicable? (ii) Whether on the facts and in the circumstances of the case, the learned ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. The payment to guest faculty was made on the basis of lectures delivered by the guest faculty and not the pay scales as in the case of regular employees. Since the payments made were exceeding ₹ 20,000/-, the assessee was required to deduct the tax at source as envisaged under Section 194J of the Act. Accordingly, a show cause notice dated 28.2.2012 was issued to the assessee treating it as person-in-default under Section 201(1)/201(1A) of the Act. The Assessing Officer vide order dated 24.12.2012 (Annexure A-1) passed under Section 201(1)/201(1A) of the Act created a demand of ₹ 8,96,763/- and also initiated penalty proceedings under Section 271C of the Act. Feeling aggrieved, the assessee filed an appeal before the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs engaged by the college-assessee was a 'contract for service' or a 'contract of service' would be a question of fact dependent upon appreciation of various factors enunciated by this Court in The Commissioner of Income Tax (TDS), Chandigarh v. M/s Ivy Health Life Services Pvt. Ltd., Mohali, Punjab, ITA No. 142 of 2013 decided on 26.8.2015. It was urged that the Tribunal who is the final fact finding authority has not recorded any such clear finding of fact regarding 'contract of service' or 'contract for service' between the respondentassessee and the guest faculty lecturers based on guiding principles enunciated in M/s Ivy Health Life Services Pvt. Ltd.'s case (supra). It was, thus, contended that in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004(2) RSJ 466 (SC) observed that the question whether the relationship between the parties is one of the employer and employee is a pure question of fact. The control test and the organization test are not the only factors whereas several other factors viz. who is the appointing authority; who is pay master; who can dismiss; how long alternative service lasts; the extent of control and supervision; the nature of the job e.g. Whether it is professional or skilled work; nature of establishment and the right to reject, are also required to be scanned before arriving at the conclusion of the employer-employee relations. This Court had recorded as under:- 9. To resolve the controversy raised in these appeals, necessarily, it will be requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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