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TMI Blog2022 (6) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... 010-11, 2016-17 and 2017-18 respectively. Grounds of appeal of ITA No.5318/Del/2019 1. That on the facts and circumstances of the case the Ld. CIT (A) has erred in holding that appellant cannot be treated as an " assessee in default" in so far as the question of deducting tax at source in respect of doctors engaged as retainers and consultants was concerned. And that the provisions of the section 194J of the IT Act were applicable and not those of section 192 of the Act. 2. That on the facts and circumstances of the case the Ld. CIT (A) has erred in giving relief to the assessee without appreciating the facts that the terms and clauses of agreements entered into deductor company and retainer doctors/consultants doctors categorically af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners and consultants. The last two categories consisted of independent professionals who rendered services to the appellant, governed by their respective contracts/agreements and payments to them were made after deducting tax at source u/s 194J. The doctors in the first category i.e. on-roll were paid salary after TDS as applicable u/s 192 of the Act. 3. After verification , the AO held that in so far as the doctors under the categories of consultants/retainers were concerned, there existed an employer- employee relationship and provisions of Section 192 were attracted and of those of Section 194J. The AO passed an order u/s 201(1)/201(1A) of the Act raising a demand of Rs.79,36,269/- which comprised of the shortfall towards TDS and intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are:- Section 191 ..provides for a direct payment of tax by the deductee and in the eventuality of such payment being made, there is an abatement of liability on the part of the deductor, so that no interest can be levied for non-deduction of tax (pl. see CIT vs Adidas India Marketing P. Ltd. (2007) 288 ITR 379 (Del.). Tax paid directly by the assessee cannot be recovered again from the deductor as there is no provision for refund of tax wrongly deducted and deposited. As a result of the explanation inserted by the Fijance Act, 2008 w.e.f. 01.06.2003 the liability to deduct tax gets abated the moment theije is a direct payment. Section 201 7. The Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverages (P) Ltd. vs CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner only. 3) The employee doctors cannot take up any other employment whereas the retainer doctors although not to engage in employment with other hospitals can undertake private practice. 4) There is a retirement age for the employee doctors and payment to them is termed as salary, whereas the payment to the retainer doctors is treated as professional fee and they have no retirement age. 11. Certain clauses that exist in contracts with retainers lead the AO to treat the contract as one creating an employeremployee relationship and hence attracting Section 192. * clause prohibits the retainer doctor from engaging himself with another institution carrying on the same business but not barring private practice. * clause imposes certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 194J applied to the retainer doctors and not those of Section 192. 15. In the case of EHIRC Ltd. 404 ITR 344 (Raj) after analyzing the two types of agreements identical to those in the present appeals and referring to judgements of other Hon'ble High Courts held that the retainer doctors attracted the provisions of Section 194J and not those of Section 192. Some of these judgements are: 1. CIT vs Appollo Hospitals Int Ltd (2013) 359 ITR 78 (Guj) 2. CIT vs Grant Medical Foundation (2015) 375 ITR 49 (Bom) 3. CIT vs Ivy Health Life Sciences Pvt Ltd. (2016) 380 ITR 242 (P&H) 4. CIT vs Manipal Health Systems P Ltd. (2015) 375 ITR 509 (Karn) 16. Further we also find that the AO has charged interest a/s 201(1A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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