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2019 (9) TMI 462

..... part of the doctor‟s/consultants fee is retained by them in lieu of providing administrative support to them - HELD THAT:- The issue has been settled by this Tribunal in the case of M/S SIR GANGA RAM HOSPITAL, BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE, APPOLLO HOSPITALS, M/S MAX HEALTH CARE INSTITUTE LTD VERSUS CCE DELHI-I, CCE&ST INDORE, CCE&ST RAIPUR, CST NEW DELHI AND CST DELHI VERSUS M/S INDRAPRASTHA MEDICAL CORPORATION LTD [2017 (12) TMI 509 - CESTAT NEW DELHI] where it was held that the service provided by the respondent hospital would merit classification under Health Care Services extended to the patients. The appellant had not provided any business support service to the consultants/doctors or patient, therefore, no service t .....

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..... by the appellants for providing administrative support was taxable under the support services of business or commerce . In these set of facts, show cause notice was issued to the appellant. The same was adjudicated and the demand of service tax was confirmed. The appellant is before us against confirmation of demand of service tax along with interest and imposition of penalty under various Section 76,77,78 of the Finance Act, 1994. 3. The Ld. Counsel for the appellant submits that the case is squarely covered by the decision of this Tribunal in the case of M/s Sir Ganga Ram Hospital and others-2018-TIOL-352-CESTAT-DEL, which has been followed by this Tribunal in the case of M/s Ivy Health & Life Science Pvt. Ltd. vs. CCE, Chandigarh/Lud .....

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..... ce utilities, lounge, reception with competent personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security. 5. The claim of the Revenue is that the appellants have provided infrastructural support service to various doctors. As a consideration for such support, they have retained a part of the amount collected from visiting patients. We have perused some of the agreements/appointment arrangements entered into between the appellant s hospitals and the individual doctors. Typically, the arrangement contains details like duration of time for consultation, the obligations on the part of the doctors, fee to be paid, procedure for termination of agreement, etc. The agreements generally talk about appoi .....

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..... ding health care services. This can be done by appointing the required professionals directly as employees. The same can also be done by having contractual arrangements like the present ones. In such arrangement, the doctors of required qualification are engaged/contractually appointed to provide health care services. It is a mutually beneficial arrangement. There is a revenue sharing model. The doctor is attending to the patient for treatment using his professional skill and knowledge. The appellants hospitals are managing the patients from the time they enter the hospital till they leave the premises. ID cards are provided, records are maintained, all the supporting assistance are also provided when the patients are in the appellant hospi .....

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..... High Court in Dr KK Shah (supra), though in an income-tax case, we note that there is a discernable difference between business and profession . The Gujarat High Court referred to decision of Hon ble Supreme Court in Dr Devender Surtis AIR 1962 SC 63. The Supreme Court observed as below: There is a fundamental distinction between a professional activity and an activity of a commercial character : …a profession … involves the idea of an occupation requiring either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, of surgery, by the intellectual skill of the operator, as distinguished from an occupation which is substantially the production or sale or arrangements for the production or sale .....

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..... injury, deformity, abnormality or pregnancy in any recognized system of medicines in India, or a place established as an independent entity or a part of an establishment to carry out diagnostic or investigative services 10. The terms health care services is defined as below: health care services means any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India and includes services by way of transportation of the patient to and from a clinical establishment but does not include their transplant or cosmetic or plastic surgery, except when undertaken to restore or to reconstruct anatomy or functions of both affected due to congenial defects, deve .....

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..... ended to the patients. Accordingly, the demand proceedings against the respondent hospital was dropped. Revenue filed appeal against the said order. In view of our detailed analysis on the same dispute while dealing with appeals by the appellant hospitals, as above, we find no merit in the present appeal by the Revenue. We are in agreement with the ratio and decision of the Commissioner in the impugned order. Accordingly, the appeal by the Revenue is dismissed. 13. In view of above discussion and analysis, we hold that the impugned orders against which appellant hospitals filed appeal are devoid of merit, the same are set-aside. Upholding the order dated 01.02.2016 of Commissioner, Service Tax, New Delhi, we dismiss the appeal by the Revenu .....

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