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2016 (4) TMI 217

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....hen the matter was carried before the Commissioner of Income-Tax (Appeals) at paragraph-5, after considering the earlier decision of the Tribunal in case of M/s.Elbit Diagnostics Ltd., the following comparative chart in tabular form is reflected on p ara- 5.1 which reads as under: Sl. No. Facts of the present case Facts in the case of M/s Elbit Medical Diagnostics Ltd 1. Assessee Company engaged in the business of providing teleradiology services to hospitals and imaging/diagnostic centres Assessee Company engaged in the business of running and operating a medical diagnostic centre. [Page 1 - para 2 of the ITAT order] 2. Services includes interpretation of all non-invasive imaging studies, namely CT, MRI, Ultrasound, Nuclear Medicine studies and digitized xrays. The appellant provide medical service in situations of critical emergency i.e., to patients suffering acute stroke, ruptured aneurysm, perforated appendix and such life threatening conditions, where the service is extremely critical and cannot afford to be interrupted. Engaged in providing medical diagnosis services in the fields of radiology, pathology, cardiology, nuclear medicine etc. [Page 4 - para 6 of the ITA....

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....ity. The Company does not in manner direct / control / supervise the services provided by the doctors or the manner in which such services are provided. The engagement and nature of work of specialized person including doctors are not controlled by the assessee-company. The assessee-company has no interference in their diagnostics arrived at. There is no control of assessee over doctors / specialists service rendered by them to assesssee-company at the strength of specialized knowledge. [pages 8 and 9 of ITAT order] 11. It is understood and agreed that the relationship between the parties is on a principal to principal basis. The agreement into with the doctors does not constitute a relationship of employment and the doctors cannot make any claim to employment or employment related benefits with the Company. The engagement of doctors and other professionals were done on the basis of contractual agreements. Payments to aforesaid professionals were made on the basis of their contractual obligations as consultants with the organization. [Pages 1 and 2 of ITAT order] 12. The doctors are free to carry on their private practice and there is restriction in respect of the same. The d....

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.... doctors through interviews, availability of doctors through a pre-determined time schedule etc are only measures to ensure that there would be no interruption in provision of medical services to patients, hospitals etc. The method of sanctioning leave, giving certain incentives to doctors etc was not considered by the Hon'ble Bangalore Bench to be relevant factors in determining the current issue. 17. Agreement with doctors does not provide for deputation of services of doctors. Further, doctors are free to present papers in conference and other scientific publications. Services of doctors can be deputed to other centres of Elbit as and when required and permission from Management is required for presenting papers in conference and other scientific publications.   4. Thereafter Commissioner of Income Tax (Appeals) found that the said matter is covered by the decision of the Tribunal in case of M/s.Elbit Medical Diagnostics Ltd., and further confirmed by this Court, the appeal was allowed. 5. When the matter was carried before the Tribunal by the Revenue, the Tribunal at para-7 has observed thus: "7. Dr. Vinod P Joseph's appointment order reveals that the appo....

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....at in all cases the correct method of approach is whether having regard to the nature of work there was due control and supervision by the employer. The receipt of remuneration for holding an office does not necessarily gives rise to relationship of master and servant between the holder of office and the person who pays the remuneration. Whether a person is a servant or an agent would be determined by the duties of employee, the nature of business, terms of his employment/engagement and kind of supervisory control over his work. A person who is engaged to manage the business may be servant or agent, according to the nature of his service and authority of his employment. The profession involves occupation required purely intellectual or manual skill, as held by the Hon'ble Supreme Court in the case of CIT Vs Mohandas (1966) 59 ITR 699 (SC). The profession in general term involves the idea of an occupation requiring either purely intellectual skill, or if any material skill, as in painting and sculpture or surgery, controlled by intellectual skill of operator, as distinguished from an occupation which is substantially production or sale or arrangement for production or sale, of c....