TMI Blog2016 (3) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... want except joining the similar business while other doctors who are on the pay roll of the assessee are debarred from doing any other activity apart from that of the assessee. From the perusal of all the material placed before us we see that no relationship of master and servant exists between the assessee and the retainer doctors. The intention of the Legislature to frame different provisions in the form of sections 192 and 194J of the Act is that the persons to receive salary are liable to be deducted tax at source under section 192 of the Act while those to receive payment for professional services, the TDS has to be deduction under section 194J of the Act. The learned CIT (Appeals) while discussing in detail the agreements between different types of doctors engaged by the assessee and placing reliance on the other material on record only has given his finding. In view of the above, we uphold the order of the learned CIT (Appeals) and dismiss the appeal of the Department. - Decided against revenue - ITA No.296/Chd/2015, ITA No.297/Chd/2015, ITA No.297/Chd/2015, ITA No.650/Chd/2015 - - - Dated:- 14-1-2016 - SHRI BHAVNESH SAINI , JUDICIAL MEMBER AND MS. RANO JAIN, ACCOU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Hon'ble Punjab Haryana High Court , worked out the tax and interest liability under sect ion 201(1) and 201(1A) of the Act and created the demand against the assessee. 4. Before the learned CIT (Appeals), detailed submissions were made by the assessee, again referring to various clauses of the agreements between the doctors and the assessee and reliance was also placed on the judgments which were earlier placed before the Assessing Officer. After considering the submissions of the assessee, the learned CIT (Appeals) held that to determine whether particular relationship amounts to employer and employee relationship, the existence of a right of control in respect of the manner in which work is to be done by the person employed is very important. He also distinguish between 'contract for service' and 'contract of service'. He analyzed the various clauses of the agreement with the doctors and held that there does not exist any employer and employee relationship. The learned CIT (Appeals) also mentioned that the Assessing Officer ought to have considered the issues of case of the I.T.A.T., Chandigarh Bench in the case of Ivy Health Life Sciences (P.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mend the grounds of appeal before or at the time of hearing of appeal. 6. The learned D.R. relied on the order of the Assessing Officer, specifically mentioning the grounds of appeal raised before us, he tried to distinguish the facts of the present case with that of the cases relied on by the assessee. Further, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Padmasundara Rao (Decd.) v. State of Tamil Nadu [2002] 255 ITR 147 for the proposition that while interpreting the provisions, the Court only can interpret the law and cannot legislate it. The Legislative intent is of prime matter and in the present case, one has to go behind what is apparent and to find out that whether there exists a relationship of master and servants between the assessee and these doctors on retainership basis. 7. The learned counsel for the assessee relied on the order of the learned CIT (Appeals). He stated that the learned CIT (Appeals) has taken pains to state at length why there does not exist any employer and employees relationship between the assessee and these doctors. The reliance was placed on the judgments which were placed before the lower authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the only bar is to join any other similar company. Even the learned CIT (Appeals) has considered this argument of the assessee in a very positive perspective in the sense that these doctors are not barred from having their own practice and barring them to join any other similar organization is just to avoid shifting of patients to other places, also this bar itself does not create employer and employee relationship between the assessee and the retainer doctors. 10. At point No.(ii), the Assessing Officer stated that the retainer doctors are bound to work from time to time in accordance with the requirements of the hospital and patients and in the best interest of the management. From the perusal of this condition, we do not understand as to how the Assessing Officer infers that by imposing such a condition the relationship between the doctors and the assessee becomes that of employer and employee. This is a common clause, provided in such agreements in order to protect the interest of the assessee hospital and to provide service to the patients as per the work culture in the hospital. 11. The point raised by the Assessing Officer at No.(iii) is with regard to the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. 15. We are also in agreement with the findings given by the learned CIT (Appeals) that since all these recipient doctors' receipts have been taxed as professional receipts in the hands of doctors and not as income from salary, in a way, the Department has accepted the position that these doctors are not employees of the hospital. 16. The Assessing Officer while framing the order has also distinguished the cases relied on by the assessee. Even in the grounds of appeal raised by the Revenue before us, it has been very specifically stated that the cases relied on by the assessee are distinguishable on facts. We now advert to analyze whether the facts of these cases are applicable to the assessee or not. The first case is that of Yashoda Super Speciality Hospital case (supra). This case is relied on by the assessee as in this case, the doctors were required to work only for the assessee and cannot do any practice elsewhere. It has been held by the Hyderabad Bench of the Tribunal that there is no prohibition in law to engage services of a professional exclusively for a particular hospital and thus by not allowing the doctors to work elsewhere, it does not infer that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer, we have also gone independently to the terms and conditions in the sample of agreements with the doctors engaged by the assessee, filed by it in the Paper Book. Different types of agreements are made both for doctors engaged on retainership and those who are regular employees. After perusing both types of agreements, we see that there are a number of differences between various clauses in both types of agreement. To the employed doctors, there are conditions as with regard to salary revision of salary in the form of increment and also there is a condition as to the retirement age being 58 years. However, in case of retainer doctors, there is no clause as to the increment or retirement. Probation period of six months has also been laid down for salaried doctors, while there is no such condition in case of retainer doctors. No retirement benefits in the form of gratuity, PF, etc. were given to the retainer doctors, while said clauses are there in the agreement with the salaried doctors. Another interesting clause with regard to posting and transfer also appears in the case of salaried doctors, whereby the assessee company may determine to transfer the doctors at the sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever they want except joining the similar business while other doctors who are on the pay roll of the assessee are debarred from doing any other activity apart from that of the assessee. 21. From the perusal of all the material placed before us as well as the judicial pronouncements cited, we see that no relationship of master and servant exists between the assessee and the retainer doctors. 22. The learned D.R. relied on the judgment of the Hon'ble Supreme Court in the case of Padmasundara Rao (supra). The proposition of the said judgment is that while interpreting the Statutes Legislative intention must be found in the words used by the Legislature itself and the Legislative Casus omissus cannot be supplied by judicial interpretative process. We do not see any such act being done by the learned CIT (Appeals) while granting relief to the assessee. The intention of the Legislature to frame different provisions in the form of sections 192 and 194J of the Act is that the persons to receive salary are liable to be deducted tax at source under section 192 of the Act while those to receive payment for professional services, the TDS has to be deduction under section 194J of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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