2023 (11) TMI 395

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....has erred in giving relief to the assessee without appreciating the facts that the terms and clauses of agreements entered into by the deductor company and retainer doctors/consultant doctors categorically affirm that there existed an evident employee-employer relationship between the deductor company and retainer doctors/consultant doctors and hence payment made to consultant doctors and retainer doctors should fall under the head "Salary" and the assessee hospital/ company was liable to deduct TDS at the rate applicable in the case of salary." 3. Briefly stated, the assessee is a hospital, leading integrated healthcare delivery service provider in India. The healthcare verticals of the company primarily comprise hospitals, diagnostics and day care specialty facilities. The company operates from its headquarters office situated at Sector-41, Gurugram, Haryana and has many of its hospitals in different regions across the country. In the case of the assessee TDS survey under section 133A(2A) of the Income Tax Act, 1961 (the "Act") was conducted at the premises of M/s. Fortis Group on 23.01.2018 for verification of compliance of TDS provision under section 201(1)/201(1A) of the Ac....

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....814 261181 635544 374363... Dr Neena Singh AAZPK1454F 2174988 217499 504496 286998 Dr Ruchira Prasad AJRPP9882D 2074544 207454 474363 266909. Dr, Sonu Agarwal AADPA0520L 2029735 202974 460921 257947 Dr. fasbir Chandna AADPC9225A 1800018 180002 392005 212004 Dr. Alka Juneja ADKPJ8227D 1684270 168427 357281 188854 Dr. Veenu Kanshal ABYPK2118E 1684270 160427 357281 188854 Dr. Seema Thakur ACUPT9600M 1600000 160000 332000 172000 Dr. Amit Bali AGVPB1381N 1365783 136578 261735 125157 Dr. Anita Sharma ABKPS4578A 1315342 131534 246603 115068 Dr. Deepak Sikhriwal BFFPS4143K 1307197 130720 244159 113439 Dr. Kumkum Vatsa AAHPV0593J 1299810 129981 241943 111962 Dr. Raj Bokaria AAIPB9286H 1275023 127502 234507 107005 Dr. Ashu Sawhney ABBPS1629K 1252792 125279 227838 102558 Dr. Kamal Buckshee AAFPB6154P 1154756 115476 198427 82951 Dr. Anil Malik AGVPB1381N 1376746 137675 265024 127349 Total 110065616 11006561 ....

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...., 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 there is a direct payment. Section 201 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 taxes. The other judgements are Children's Education Society vs DCIT (TDS) (2009) 319 ITR 409 (Kar), TRO vs Bharat Hotels Ltd. (2009) 318 ITR (At) 244 (Bang:), Nai Rajdhani Path Pramandal vs CIT (2016) 384 ITR 328 (Pat) and Ghaziabad Development Authority vs Union of India (2017) 395 ITR 597 (All.) The proviso to section 201 inserted by the Finance Act, 2012 w... 01.07.2012 recognizes the aforesaid legal position and deems the deductor not to be an assessee in def....

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....o which one would refer is the distinction between a "contract for service" and a "Contract of service" the former implying a contract whereby one party undertakes to render service to another in the performance of which he is not subject to detailed directions and control but 1 exercises professional skill using his own knowledge and discretion and the latter implying relationship of master and servant with an obligation to obey orders in the work to be performed. Here again there is unanimity in the view expressed in various reported decisions that the former does not create a master servant relationship. In view of the numerous judgements relied upon including those in the cases of appellant itself and group institutions, it is apparent that the issue of TDS is no longer res integra. Your goodself may be pleased to quash the order passed by the AO. Prayed accordingly," 5. The Ld. CIT(A), following the decision of his predecessor in assessee's own case on identical issue quashed the impugned order of the Ld. AO. 6. Dissatisfied, the Revenue is in appeal before the Tribunal and both the grounds relate thereto. 7. We have heard the Ld. Representative of t....