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TMI Blog2014 (8) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing common grounds of appeal in all the appeals: The observation of the Ld. CIT(A) Chandigarh is not acceptable due to the following facts: - (1) The Ld. QT(A), Chandigarh has not fully appreciated the facts of the case and ignored the finding of the AO on the basis of which he has reached at the conclusion that in view of terms of employment, there was no employer-employee relationship between the deductor and professional teaching staff (guest faculty). (2) That during the relevant period, though the deductor has availed services of professionals for teaching self financing and other courses run by the deductor, yet no TDS has been deducted by the deductor. As a matter of fact, the deductor has treated them as employees and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing staff' (guest facult y). Further it was noted that no tax at source was deducted by the deductor out of the said payments made to the teaching staff (guest facult y) under section 194J of the Act. The assessee was issued show cause notice which is reproduced under para 2 at pages 1 to 3 of the assessment order. The repl y of the assessee is reproduced under para 3 at pages 3 to 7 of the assessment order. The plea of the assessee before the Assessing Officer was that it had appointed adhoc teaching staff on salary basis onl y. The copy of one of the salary bill was filed before the Assessing Officer, which depicts that the salary had been paid by the college as employer to the teaching staff, who were the employees. As per the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act and demand of Rs. 5,24,127/- was raised under section 201(1) of the Act and Rs. 1,88,686/- was charged as interest under section 201(1A) of the Act for the assessment year 2009-10. 6. The CIT (Appeals) deleted the addition observing that the payments made to the said persons were not covered under section 194J of the Act as there was employer and employee relationship between the college and teaching staff and in view of the salary drawn by the said persons the Assessing Officer was not right in treating the assessee in default and raising demand under section 201(1) and 201(1A) of the Act. 7. The Revenue is in appeal against the order of the CIT (Appeals). The plea raised by the Revenue was that in the absence of any employer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are appointed by the selection committee and the proceedings regarding their appointments are duly recorded." 11. The learned D.R. for the Revenue has failed to controvert the said finding of the CIT (Appeals) and in the absence of the same, we reject the plea of the Revenue. 12. The next plea of the assessee was that as there was relationship of employer and employee between the assessee deductor and its teachers appointed on adhoc basis, there was no merit in the order of the Assessing Officer in treating the payment made to them as professional charges liable to deduction of tax under section 194J of the Act. 13. The CIT (Appeals) vide paras 5.1 to 5.5 held as under: "5.1 The Assessing Officer has treated the payments made to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding hours of work, etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal, is no deterrent against holding the persons to be workmen within the meaning of the definition if they fulfil its requirement." 5.3 The existence of right of control in respect of the manner in which work is to be done is the most important factor to determine the relationship. The terms of employment were fixed by the college management in this case and they had complete control over the teachers who were engaged as teaching staff (guest faculty). There was an employer, an employee and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service since the teaching staff had not undertaken to render any professional or technical service. As there was a contract of service between the assessee deductor and its teaching staff appointed on adhoc basis and the salary paid to them being below the taxable limit, does not warrant deduction of tax at source and such non deduction of tax at source does not invalidate the provisions of Act making the assessee liable for the demand raised under section 201(1)/201(1A) of the Act. We are in agreement with the observation of the CIT (Appeals) that merel y because the assessee had not maintained separate books of account for financiall y added courses and self financing courses was not relevant, as there was no requirement under the Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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