TaxTMI 
TaxTMI 
2022 (7) TMI 846
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.... these appeals are identical, they were heard together and being adjudicated by a common order. 3. The assessee is engaged in the business of providing healthcare services in various fields namely diabetic, rental and ophthalmology. For running its operations, the assessee had engaged doctors in three categories i.e. on-roll, retainer and consultants. 4. Before us, the ld. DR brought to our notice that the decision of the Co-ordinate Bench of ITAT in the case of DCIT Vs. Wockhardt Hospitals Ltd. in ITA No. 985 & 986/Hyd/2011 vide order dated 02.07.2012. In that case, the revenue could prove the similarities of terms & agreements between the al l the three types of doctors engaged by the hospital. The order has been duly considered. In....
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....esigns etc. but which as per the agreement were to be treated as the sole and exclusive property of the institution. According to the assessee, there has been near unanimity in the views expressed by the Hon'ble High Courts and different Benches of the ITAT that such clauses do not create an employer- employee relationship. 6. The issue of TDS on on-roll doctors, retainer doctors and consultant doctors with regard to applicability of Section 194J and Section 192B of the Income Tax Act, 1961 and also Section 201(1A) have been examined in the order passed by the Coordinate Bench of Tribunal in the case of Escorts Heart Institute & Research Centre Ltd. in ITA Nos. 5318 to 5320/Del/2019. The relevant portion is as under: "5. The....
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....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 Finance 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 (2007) 293 ITR 226 (SC) took the view that no demand u/s 201 could be enforced once the deductor had satisfied the AO that the deductee had paid the ....
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....though 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 employer-employee 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 certain conditions about time, supervision and the interest of the pati....
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....tion 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 ch....