TMI Blog2019 (3) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... tors. It was on this basis the Tribunal had come to the conclusion that the relationship between the hospital and the doctors cannot be treated as one of the employer-employee relationship. It was noted that the earnings of the doctors would be dependent upon the patients that the doctors would attract. We do not find that the Tribunal has committee any error. Significant features of the contractual relationship between the doctors and the hospital in the present case were that the hospital would provide support service where a particular patient would be treated by a doctor. The sharing was in the proportion of 15% v/s. 85% between the hospital and the doctors. Contractual tenure of these doctors was for a period of one year which would be renewable depending on the performance of the doctor to be assessed by the Medical Advisory Council of the hospital. These doctors are not entitled to benefits of leave encashment, gratuity, provident fund, superannuation benefits etc. which regular employees of the hospital are. These doctors would on their own obtain indemnity insurance. These are clear indications that the relationship was not one of employer-employee. The Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Respondent-Assessee, a trust, running a hospital, had to deduct the tax at source under Section 192 of the Income Tax Act, 1961 (for short the Act ) while making payment to the doctors discharging their duties at the said hospital. The contention of the Revenue was that these services of the doctors have been engaged under a contract executed between the parties, and that the doctors are not employees of the hospital. Under the circumstances, according to the Assessee, section 192 of the Act was not applicable. The payments to the doctors were in the nature of professional fee for which tax was deducted under section 194J at the time of payment. 6. The Assessing Officer did not accept such a contention, upon which the Assesseee filed an Appeal. The Commissioner (Appeals) who also rejected the Appeal, upon which the issue reached the Tribunal in an Appeal filed by the Assessee. The Tribunal examined the terms of engagement of the doctors by the Asseseee Trust and came to a conclusion that the issues were squarely covered in favour of the Assessee by virtue of the judgment of the Division Bench of this court in the case of CIT v/s. Grant Medical Foundation reported in 375 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts a employer-employee relationship. The Tribunal found that the Commissioner was in error. We also agree with the Tribunal because in the Commissioner's order in relation to these two doctors the findings are little curious. The commissioner referred to the tests in paragraph 9 of the order at running page 62 and at internal page 14 in paragraph 10 the Commissioner concluded that doctors drawing fixed remuneration are full time employees. However, in relation to the second category of doctors drawing fixed plus variable pay with written contracts the terms and conditions of Dr Zirpe and Dr Phadke have been referred and the Tribunal concluded that neither of the doctors was entitled to provident fund or any terminal benefits. Both were free to carry on their private practice at their own clinic or outside Hospitals but beyond the Hospital timings. Both doctors treated their private patients from the hospital premises. All of which could be seen as indicators that they were not employees but independent professionals ( see paragraph 14). However, they were found to be sharing a overwhelming number of attributes of employees. In relation to that the contract seems to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnexed to the paper book being part of the order of the Assessing Officer. We find that the communications which have been relied upon, namely, 25th November, 2008 and 14th May, 2009 do not contain any admission by the assessee. All that the assessee admitted is the existence of a written contract and with the above terms. Those terms have also been perused by us minutely and carefully. We do not find that any stipulations regarding working hours, academic leave or attachments would reveal that these doctors are employees of the assessee. In fact, Dr Zirpe was appointed as a Junior Consultant on three years of contract. He was paid emoluments at fixed rates for the patients seen by him in the OPD. That he would not be permitted to engage himself in any hospital or nursing home on pay or emoluments cannot be seen as an isolated term or stipulation. In case of Dr Uday Phadke, we do not find any such stipulation. In these circumstances, the only agreement between the parties being that certain private patients or fixed or specified number seen by the consultant could be admitted to the assessee hospital. That would not denote a binding relationship or a master servant arrangement. A a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the performance of the doctor to be assessed by the Medical Advisory Council of the hospital. These doctors are not entitled to benefits of leave encashment, gratuity, provident fund, superannuation benefits etc. which regular employees of the hospital are. These doctors would on their own obtain indemnity insurance. These are clear indications that the relationship was not one of employer-employee. The Tribunal has correctly applied the decision of this Court in the case of Grant Medical Foundation's case (supra) wherein the Court has laid down the propositions and principles to be applied while testing such a bilateral relationship between the hospital and the doctors. 11. The second question pertains to the revenue's contention that the Respondent Assessee while making payment to a contractor providing maintenance and support services ought to have deducted tax at source under Section 194J of the Act instead of Section 194C under which the Assessee had made such deductions. 12. We notice that the CIT (Appeals) and the Tribunal have concurrently held that the contractor was meant to carry out maintenance and the repair work and therefore his services coul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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