9911796707
TMI Blog2018 (1) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... , 234B & 244A & 234D. 4. The appellant craves leave to amend, add, alter or forego any ground of appeal at the time of its hearing. 2. The brief facts of the case are that assessee filed his return of income on 25.08.2006 declaring income of Rs. 61,377/- under the head salary and income from business or profession. The assessee has also shown agricultural income of Rs. 49,550/-. As per return of income, assessee derived income from pension, interest and also so called contractual receipt from South East Asia Marine Engineering & Construction Ltd., Andheri (E), Mumbai. In this case Notice u/s. 143(2) of the Income Tax Act, 1961 (hereinafter referred the Act) was issued and duly served upon the assessee. The assessee has shown receipts of Rs. 11,43,150/- from South East Asia Marine Engineering & Construction Ltd. Andheri (E), Mumbai and declared net profit at Rs. 91,452/-, whereas he has also received Rs. 2,73,625/- from the Dolphin Offshore Enterprises (Indi) Ltd., Mumbai. Accordingly, the AO considered the receipts of Rs. 14,16,775/- (1143150 + 273625) as professional receipts, the assessee was required to maintain books of accounts as per provisions of section 44AA of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.12.2015 passed in assessee's own case has set aside the Tribunal's Order dated 30.9.2010 and the matter was remanded back to the Tribunal to decide the same afresh keeping in view the principles laid down by the Hon'ble Punjab & Haryana High Court in the case of CIT vs. M/s Ivy Health Life Sciences Pvt. Ltd., Mohali Punjab, ITA No. 142 of 2013 decided on 26.08.2015. Accordingly, the Appeal of the Assessee was heard. We find that Hon'ble High Court of Punjab and Haryana at Chandigarh in the case of CIT(TDS), Chandigarh vs. M/s Ivy Health Life Sciences Pvt. Limited, Mohali, Punjab passed in ITA No. 142 of 2013 (O&M) vide its order dated 26.8.2015 in para 15 to 17 has held as under:- "15. In the present case, it has been categorically recorded by the CIT(A) that the contract for service implies a contract whereby one' party undertakes to. render services i.e. professional or technical services whereas contract of service implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and also as to its mode and manner of performance. The professional doctors are not entitled for LTC, concession in medical treatment of relatives, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the both types doctors under section 194J as professional charges, whereas the payments made to doctors who are regularly attached with the hospital, are required to be treated as salary and tax is also required to be deducted under section 192 of the Act. The AO was of the view that payments made to doctors were regularly attached with the hospital, were required to be treated as salary and taxes are required to be deducted under section 192 of the Act. Consequently, AO issued- a show cause notice to treat the person responsible (hereinafter referred to as PR) as assessee in default under section 201(1) of the Act for short deduction of tax at source from the payments made to the consultant doctors and charged interest under section 201(1A) of the Act. On appreciation of the written submissions filed by the appellant before the AO, it was concluded by him that there existed employer-employee relationship. in the hospital. Consequently, the AO concluded the issue as 'During the financial year 2008-09, the assessee had deducted tax of Rs. 11,67,399.40 under section 194J of the Act, whereas the tax of Rs. 27,98,169.69 under section 192 of the Act was required to be conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "i) The second party shall be associated exclusively with M/s IVY Hospital as full-time consultant and shall not associate himself with any other hospital. ii) the second party shall be paid professional charges for services rendered by him in IVY Hospital as under with a minimum guarantee of Rs... per month subject to TDS deductions as per Act, the minimum guarantee amount shall be paid to the second party for a period of 12 months from the date of joining. The same shall be revised at the end of 12 months. a) 70% of the OPD charges b) Visiting charges in ward/private room as mutually settled between the two parties. c) 15% of the investigation done of IVY Hospital. iii) the second party shall not do practice at any other place and would be associated exclusively with IVY hospital. The second party shall not operate or admit patient in any other hospital except at IVY Hospital. In our opinion, the Assessing Officer was not right in concluding on the combined reading of the above stipulations that the income of the doctors was salary. It nowhere suggests that there exists relationship of employer employee between the assessee and, the said doctors, rather it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid day rate of Rs. 4200 each day of service. However, on signing on and signing off days, you will be paid half day rate. 3.2 If, at any time, you are required to work in our workshop / base, you will be paid half day rate for each day at workshop/base. You will be required to get the days certified by the workshop Manager /SPO while submitting your claims. 3.3 If you report to helibase/dock/clients designated mobilisation point, but are enable to be mobilised for any reasons not attributable to you, then you shall be paid 25% of your normal day rate while you are waiting to get to the work site. 3.4 In addition to the above, you will be paid an allowance of Rs. 600 per round trip to meet your pocket expenses, including conveyance. 4.0 TERMS OF PAYMENT 4.1 At the time of signing off from the vessel, you will submit your invoice for your day rate, and allowances, if any. 4.2 The day rate amount will be paid to you within 15 days of signing off the vessel. This payment will be made by cheque/demand draft, which will be forwarded, to your registered address. 5.0 TAXES 5.1 You will be responsible to pay your own corporate/personal income taxes etc. and sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsible for safe custody of security pass. However, the pass will be the property of the Company at all times. The pass will be deposited with the Company after signing off from the vessel, but prior to receiving payment No payment will be made unless the pass is returned to the Company. 6.7 During the period that you are rendering services under this contract you shall strictly follow the Company's procedures and policies especially with regard to safety. 6.8 You will not be any time, whether during the currency of this contract or any time thereafter, make public or disclose to any person any information regarding the status of jobs, business dealing, affairs of the Company or any other information which may be prejudicial to the interests of the Company." 7.1 We have also perused the letter dated 14.11.2005 issued by the Project Manager, SEAMEC-II, M/s South East Asia Marine Engineering & Construction Ltd. to the assessee offering therein contract as Electrical Technician for services. For the sake of convenience, the conditions of the Contract, which were accepted by the Assessee, are reproduced hereunder:- "Further to your application and discussions held in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contract as Electrical Technician during the period under review. 2. Nature of job was for electrical maintenance on board of Company's vessel. 3. Mr. Hooda was rendering aforesaid services onboard of our vessel using our machinery and tools. 4. Mr. Hooda's work was in nature of a contractor. 5. We have no details of any machinery purchased by Mr. Hooda. 6. We have no details of any expenditure incurred by Mr. Hooda. 7. Mr. Hooda was given food while on board vessel. We have no details of office rent, if any, paid by him. 8. The details of payments made to Mr. Hooda are enclosed - Annexure-1. 9. The copies of contracts dated 13th July, 2005, 14th November, 2005 and 14th February, 2006 between Mr. Hooda and the Company are enclosed. Annex.-2. We hope you will find the above in order." 7.3 After careful consideration of the decision dated 26.8.2015 in the case of CIT vs M/s IVY Health Life Sciences Pvt. Limited in ITA No. 142 of 2013 and letter dated 06.06.2004 issued by M/s Dolphin Offshore Enterprises (India) Ltd. to the assessee i.e. SK Hooda for contract for diving services; letter dated 14.11.2005 issued by the Project Manager, SEAMEC-II, M/s South East ..... X X X X Extracts X X X X X X X X Extracts X X X X
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