TMI Blog2022 (7) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... of deducting tax at source in respect of doctors engaged as retainers and consultants was concerned. Appeal of revenue dismissed. - ITA No. 5322/Del/2019, 5323/Del/2019, 5324/Del/2019, 5327/Del/2019, 5328/Del/2019, 5329/Del/2019, 5330/Del/2019, 5325/Del/2019, 5326/Del/2019 - - - Dated:- 27-6-2022 - Dr. B. R. R. Kumar, Accountant Member And Sh. Yogesh Kumar US, Judicial Member Assessee by: Sh. R. M. Mehta, CA Revenue by: Sh. Lalit Kishore, Sr. DR ORDER Per Dr. B. R. R. Kumar, Accountant Member: The present appeals have been filed by the Revenue against the orders of ld. CIT(A)-41, New Delhi dated 29.03.2019. 2. Since, the issues involved in all these appeals are identical, they were heard together and be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are regulated in accordance with the agreements entered into. 5. There are other clauses in the agreements with the retainers/consultants, which according to the AO create an employer-employee relationship but which according to the assessee they do not disturb the relationship between a professional and his client. To advert to some of these clauses such as imposing conditions as to time, supervision and the interest of the patients, a clause requiring the retainer/consultant doctors to participate in academic activities conducted by the institution and yet another clause which requires the retainer doctors to develop original concepts, ideas, plans, designs etc. but which as per the agreement were to be treated as the sole and exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been adverted to by the AO. It is settled law that issues which have attained finality should not be raked up by examining the same set of facts in a different way. The facts examined by the AO are not different to those that existed in the past years when no such action was taken even after a TDS survey carried out on 19.01.2015. Reliance is placed on CIT vs M/s Escorts Ltd. (2011) 338ITR 435 (Del.). 6. The relevant provisions of the Act 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p basis as identical giving rise to employer-employee relationship missing out the differences which have been noted over and again by the various Benches of the ITAT and the Hon'ble High courts. 10. To mention a few:- 1) In the case of employee doctors, it is a whole time employment not restricted to a fixed term whereas a retainer doctor has a fixed term. 2) The employee doctors draw a salary plus various other benefits whereas the retainer doctor is entitled to a consolidated retainer 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to obey orders in the work to be performed. It was held that the former does not create a master servant relationship. 14. Chandigarh Bench of the ITAT in one of the group cases namely ACIT vs M/s. Fortis Healthcare Ltd. Mohali reported in (2016) 157 ITD 746, after a detailed analysis of the terms of the agreements of the retainer doctors as well as the salaried doctors and considering the decisions of various Benches of the ITAT and the judgement of the jurisdictional High Court in the case of Ivy Health Life Sciences (P) Ltd. held that the 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 identica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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