TMI Blog1999 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Paper Book for a period of one year. Accordingly, they are called as Honorary visiting Doctors and were entitled for the honorarium collected from the patients, As per order No. 83 each Doctor will have to attend the Institute at least two days in a week and should be ready to attend the Institute as and when necessary too. The Institute is collecting the fee from the patients for providing the service by the Doctors. After deducting 10 per cent fee, so collected is transmitted to the concerning Doctors after having the receipts (pages 18 to 50 of the Paper Book). 3. The Institute transmitted the fee only after deducting 10 per cent as an administrative charges but without deducting any tax at source. During the assessment year under consideration, the assessee has distributed Rs. 1,33,68,152 without TDS as required under section 192 of the Act. For not fulfilling the obligation, the Assessing Officer imposed the penalty about 50 per cent on the Institute. In first appeal, the CIT (Appeals) has deleted the same by writing a lengthy order and also observing that there is no relationship of employer and employees, between the Institute and the Doctors. So, the concept of TDS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 per cent administration charges. He mentioned, that the Doctors have already shown this income in their individual return as professional income and not as salary income. For the purpose of salary the assessee has different Doctors whose appointment letters are governed as per the order (at page 67 of the Paper Book) where the concerning Doctors are not only entitled for salary but also perquisite like Provident Fund, Leave Encashment, Residential Accommodation etc. He mentioned that such types of perquisites are not available to the visiting Doctors who have received the amount on the basis of collection made from the patients. So, there is no question of any salary payment made by the assessee. Lastly, he submitted that the action taken by the Assessing Officer under section 201 and 201(1A) are initially null and void. He also cited the case law discussed by the CIT (Appeals) in his order. 6. We have heard the rival submissions at length from which it appears that the assessee is engaged in the treatment of patients on payment basis. For administration and management, the assessee has its own staff including a number of doctors who are the employees of the assessee as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent of any control or interference, and merely undertakes to produce a specified result, employing his own means to produce that result Chandi Prasad Singh v. State of Uttar Pradesh AIR 1958 SC 149. The Hon'ble Supreme Court observed in Chintaman Rao v. State of Madhya Pradesh AIR 1958 SC 388, 392 that a contractor is a person who, in the pursuit of an independent business, undertakes to do specific job of work for other persons, without submitting himself to their control in respect to the details of the work. 8. In the light of above, the facts of the case in and clearly shows that there is no relationship of master and servant. The order mentioned at pages 14 and 15 of the Paper Book is an understanding between the assessee and the visiting Doctors which is quite distinguishable from the employment order mentioned at page 67 of the Paper Book. Further, to examine the exact nature of the appointment in the instant case, we will have to examine the genesis of the relationship between the assessee and the visiting Doctors. In Jowitt's Dictionary of English Law, 1959 Edn., Karnataka--- "The expression "salary" is explained thus: 'a recompense or consideration generally perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the assessee's income arose out of the practice of her profession of a film actress and was not salary income. Similarly, the Director, Managing Agent, Bank Treasurers were not considered as an employer and employee in the absence of any covenant CIT v. Manmohan Das [1966] 59 ITR 699 (SC); Ram Prashad v. CIT [1972] 86 ITR 122 (SC) and Qamar Shaffi Tyabji v. CEPT [1960] 39 ITR 611 (SC). 10. In the instant case, the assessee had not controlled over the visiting doctors that how to do the treatment of the patients. It also appears that as per the terms and conditions of the order that some patients were brought by the visiting doctors themselves in the Institute (assessee). The assessee will have to provide the infrastructure for these visiting doctors to carry out their professional activities in its premises at the commission of 10 per cent deducted from the payment made to these doctors. Nomenclature of the commission is mentioned as administration charges. This is the duty of the assessee to collect the payment from the patients for various charges including the doctors' fee and these visiting doctors might have this arrangement with several other hospitals, nursing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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