Manoj Kumar Aggarwal ORDER
Manoj Kumar Aggarwal, Member (A)
1. Aforesaid appeal by revenue for Assessment Year (AY) 2011-12 contest the order of Ld. Commissioner of Income-Tax (Appeals)-60, Mumbai {CIT(A)} dated 26/09/2019 on following grounds of appeal:-
1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in not treating the Hospital Based Consultants (HBCs) as employees and therefore holding that provisions of Section 192 of the Income Tax Act, 1961 were not applicable?
2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in holding that payment made to employees of M/s. Sir Hurkisondas Nurrotumdas Hospital & Research Centre who had worked with the respondent for rendering various services to be treated as reimbursement and not as payment towards professionals fee requiring TDS to be deducted u/s. 194J of the Act?
3. "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in holding that TDS on payments made to employees of M/s. Sir Hurkisondas Nurrotumdas Hospital & Research Centre, TDS was required to be deducted u/s. 194J and not u/s. 192 of the Act without appreciating the fact that payment made to the employees on monthly basis were essentially in nature of salaries?"
As evident, the revenue is aggrieved by findings of Ld. CIT(A) that the payment made by assessee hospital to certain consultant doctors would require deduction of tax at source u/s. 194J as applicable to professional payments and not u/s. 192 as applicable to salaried employees.
2. The undisputed position that emerges is that Ld. CIT(A) has primarily followed the order of Tribunal in assessee's own case for AY 2008-09, ITA No. 2681/Mum/2015 order dated 26/08/2016 while rendering his adjudication. Nothing has been shown to us that the aforesaid order has ever been reversed by any higher judicial authority. No factual distinction could be point out before us. In the said background, our adjudication to the subject matter of appeal would be as given in succeeding paragraphs.
3.1. The material facts are that an order was passed by Ld. TDS Officer (AO) u/s. 201(1)/201(1A) on 22/03/2013 wherein it transpired that the assessee hospital paid aggregate amount of Rs. 11.17 Crores to full time doctors/consultants (referred to as consultant doctors) as professional fee after deduction of applicable tax at source in terms of requirements of Sec. 194J. This was on the premise that there was no employer-employee relationship between the assessee and full-time consultant doctors. The consultant doctors were given retainership-fee for the performance of duties assigned to them. Their terms of arrangement would not indicate that they were employed by the assessee hospital. It was explained that the assessee hospital engages various medical professional comprising different specialists for providing medical treatment to the patients by using the infrastructural facilities set up by the hospital. Some of these professionals were full-time employees whereas some specialist doctors were engaged as consultants to whom possessional fees was paid. The hospital would charge their patients under various heads like room charges, operation theater charges, medicine and doctors fees. The doctors' fees so collected would be paid to the consultant doctors after deduction of tax at source (TDS) u/s.........