Shiva & Shiva Orthopedic Hospital Pvt. Ltd, Bangalore V. Income Tax Officer (TDS), Ward - 2(2), Bangalore

ITA 1262/BANG/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2222 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 19-11-2019
• Assessment Year: misc
• Appeal Filed On: 05-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR AGGARWAL
• Assessee Lawyers: K P KUMAR
• Keywords: Additional evidence; Initiation of penalty proceedings; Non-deduction of tax; Reasonable cause; TDS; Set aside
• Section: 133A; 201(1); 201; 192

Judgement Text

ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES : A, BANGALORE BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SMT.BEENA PILLAI, JUDICAL MEMBER ITA NOS.1262,1263(BANG)/2017 (ASSESSMENT YEARS : 2012 - 13 & 2013 - 14) AND ITA NOS.1899 & 1900(B)/2019 (ASSESSMENT YEARS : 2012 - 13 & 2013 - 14) M/S SHIVA & SHIVA ORTHOPAEDIC HOSPITALS PVT.LTD., NO.146, INFANTRY ROAD, BANGALORE. PAN NO.AAICS6819E/BLRSI9178F APPELLANT VS THE INCOME TAX OFFICER, WARD - 2(2), BANGALORE AND THE ADDL. COMMISSIONER OF INCOME TAX, TDS RANGE - 3, BANGALORE RESPONDENT APPELLANT BY : SHRI K.P.KUMAR, SR. ADVOCATE REVENUE BY : SHRI SUNIL KUMAR AGGARWAL, ADDL.CIT DATE OF HEARING : 19 - 11 - 2019 DATE OF PRONOUNCEMENT : 29 - 11 - 2019 O R D E R PER SMT. BEENA PILLAI, JM : PRESENT APPEALS HAS BEEN FILED BY ASSESSEE AGAINST COMMON ORDER DATED 23/03/17 PASSED BY LD.CIT (A) - 13, BANGALORE, AGAINST ORDER DATED 09/12/14 BY LD.AO UNDER SECTION 201(1A); AND ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 2 COMMON ORDER PASSED BY LD.CIT (A) - 10, BANGALORE AGAINST ORDER DATED 22/07/19 PASSED BY LD.AO UNDER SECTION 271 C FOR ASSESSMENT YEAR 2012 - 13 AND 2013 - 14 ON FOLLOWING GROUNDS OF APPEAL: ITA NO.1262/B/2017(2012 - 13) 1. THAT THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) 13, BANGALORE ('CIT(A)' FOR SHORT), IS OPPOSED TO THE APPLICABLE LAW AND FACTS OF THE CASE. 2. THAT TH E CIT(A) ERRED IN UPHOLDING THE ORDER OF THE INCOME - TAX OFFICER (TDS), WARD - 2(2), BANGALORE ('AO' FOR SHORT), HOLDING THAT THE APPELLANT WAS LIABLE TO DEDUCT TAXES AT SOURCE ON THE FEES / REMUNERATION PAID TO ITS CONSULTANT - DOCTORS UNDER SECTION 192 OF THE INCOME - TAX ACT, 1961 ('THE ACT' FOR SHORT), AS AGAINST UNDER SECTION 194J OF THE ACT, AS WAS DONE BY THE APPELLANT. 3. THAT THE CIT(A) ERRED IN UPHOLDING THE AO'S ORDER TREATING THE APPELLANT AS AN ASSESSEE IN DEFAULT. 4. THAT THE CIT(A) GROSSLY ERRED IN CONCLU DING THAT THERE WAS AN EMPLOYER - EMPLOYEE RELATIONSHIP BETWEEN THE APPELLANT AND ITS CONSULTANT DOCTORS AND THAT THE REMUNERATION PAID TO THEM BY THE APPELLANT WAS CHARGEABLE TO TAX UNDER THE HEAD 'SALARIES' NECESSITATING DEDUCTION OF TAX AT SOURCE UNDER SE CTION 192 OF THE ACT. 5. THAT THE CIT(A) COMPLETELY FAILED TO APPRECIATE THE SIGNIFICANT TERMS ON WHICH THE CONSULTANT - DOCTORS PERFORMED THEIR OBLIGATIONS AND DUTIES IN THE PROPER PERSPECTIVE INASMUCH AS THEY WERE NOT UNDER THE CONTROL AND/OR SUPERVISION OF THE APPELLANT WHILE DIS CHARGING THEIR PROFESSIONAL DUTIES SO MUCH SO THAT THEY WERE GIVEN A FREE HAND IN TREATING PATIENTS, FIXING THEIR OWN OPD HOURS DEPENDING ON THEIR OTHER PROFESSIONAL ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 3 COMMITMENTS ELSEWHERE, SO LONG AS THEY WERE AVAILABLE ON CALL IN CASE OF EMERGENCIES. 6. THAT THE CIT(A) ALTOGETHER MISSED THE VITAL REQUIREMENTS TO BRING ABOUT EMPLOYER - EMPLOYEE RELATIONSHIP, VIZ. PERFORMING DIRECTLY UNDER CONTROL AND SUPERVISION OF THE EMPLOYER, AND THUS COMPLETELY FAILED TO APPRECIATE THAT THE VERY NATURE OF THE SERVICE RENDERE D BY THE CONSULTANT - DOCTORS DID NOT PERMIT SUCH CONTROL AND / OR SUPERVISION BY THE APPELLANT. 7. THAT THE CIT(A) FAILED TO APPRECIATE IN THE PROPER PERSPECTIVE THE FACT THAT THE CONSULTANT - DOCTORS WERE NOT ENTITLED TO AND WERE THUS NOT GIVEN THOSE BENEFITS T HAT ONLY EMPLOYEES ARE STATUTORILY ENTITLED TO SUCH AS PF, GRATUITY, LEAVE ENCASHMENT, RETIREMENT BENEFITS ETC., AND THAT THE SAID DOCTORS WERE ALL SPECIALIZED PROFESSIONALS REQUIRED TO PERFORM ONLY SPECIFIC TASKS / OPERATIONS AND NOT GENERAL DAY - TO - DAY TA SKS. 8. THAT THE CIT(A) ERRED IN PLACING UNDUE RELIANCE ON THE TERMS OF THE LETTER OF APPOINTMENT WITHOUT ALSO PROPERLY EXAMINING THE CONDUCT OF THE APPELLANT AND THE CONSULTANT - DOCTORS INTER - SE IN THE COURSE OF THEIR ENGAGEMENT WHICH WOULD CLEARLY GO TO SHOW THAT THERE WAS NO EMPLOYER - EMPLOYEE RELATIONSHIP BETWEEN THE TWO. 9. THAT THE CIT(A) ERRED IN WHOLLY FAILING TO APPRECIATE THE CLEAR DISTINCTION BETWEEN A 'CONTRACT FOR SERVICE' AND 'CONTRACT OF SERVICE' WITH THE CONTRACT BETWEEN THE APPELLANT AND THE CONSU LTANT - DOCTORS CLEARLY AND UNMISTAKABLY FALLING WITHIN THE AMBIT OF THE FORMER. 10. THAT, WITHOUT PREJUDICE TO THE ABOVE AND IN ANY EVENT, SINCE THE CONSULTANT - DOCTORS HAVE INDISPUTABLY ADMITTED AND REMITTED THE ENTIRE TAX PAYABLE BY THEM FOR THE RELEVANT ASSESSMENT YEARS IN ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 4 THEIR ASSESSMENTS UNDER THE ACT, THE APPELLANT CANNOT BE TREATED AS AN ASSESSEE IN DEFAULT UNDER SECTION 201 OF THE ACT. 11. THAT, FURTHERMORE, THE OBSERVATION THAT THE PRACTICE OF THE APPELLANT IN DEDUCTING TAXES AT SOURCE UNDER SECTION 194J OF THE ACT IS MUTUALLY BENEFICIALLY TO THE APPELLANT AND THE CONSULTANT - DOCTORS I S UNJUSTIFIED. 12. THAT THE INFERENCES DRAWN FROM AND THE CONCLUSIONS ARRIVED AT FROM THE APPOINTMENT LETTERS OF CONSULTANT - DOCTORS AND FROM THE STATEMENT RECORDED FROM THE CONSULTANT - DOCTORS ARE ERRONEOUS AND MISPLACED. 13. THAT THE RELIANCE PLACED BY THE CIT(A) ON THE DECISIONS CITED IN THE IMPUGNED ORDER IS WHOLLY MISPLACED AS THE FACTS INVOLVED AND THE RATIO EMERGING FROM THE SAID DECISIONS ARE NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE. 14. THAT THE CIT(A) ERRED IN OBSERVING THAT THE CONSULTANT - DOCTORS WERE E NTITLED TO A FIXED REMUNERATION IRRESPECTIVE OF THE NUMBER OF PATIENTS / OPERATIONS AND ALSO FURTHER ERRED IN PLACING UNDUE RELIANCE ON SUCH AN ERRONEOUS OBSERVATION 15. THAT THE CIT(A) ERRED IN UPHOLDING THE LEVY OF INTEREST UNDER SECTION 201(1A) OF THE ACT. 16. THAT, THEREFORE, THE CIT(A) ERRED IN HOLDING THAT THERE WAS NO INFIRMITY IN ORDER OF THE AO UNDER SECTIONS 201(1) AND 201(1A) OF THE ACT. 17. THAT THE ORDER OF THE CIT(A) IS OTHERWISE UNSUSTAINABLE IN LAW AND ON FACTS AND IS THUS LIABLE TO BE SET ASIDE BY THIS HON'BLE TRIBUNAL. THE APPELLANT CRAVES LEAVE TO ADD TO OR ALTER, BY DELETION, SUBSTITUTION OR OTHERWISE, THE ABOVE GROUNDS OF APPEAL, AT ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 5 ANY TIME BEFORE OR DURING THE HEARING OF THE APPEAL. THE APPELLANT FURTHER SUBMITS THAT THE ABOVE GROUNDS ARE INDEPENDENT OF AND WITHOUT PREJUDICE TO ONE ANOTHER. PRAYER THE APPELLANT MOST HUMBLY PRAYS THAT THIS HON'BLE TRIBUNAL BE PLEASED TO ALLOW THE ABO VE APPEAL AND SET ASIDE THE ORDER OF CIT(A) DATED 23.03.2017, IN THE INTERESTS OF JUSTICE AND EQUITY. ITA NO.1263/B/2017(2013 - 14) 1. THAT THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) 13, BANGALORE ('CIT(A)' FOR SHORT), IS OPPOSED TO THE APPLICABLE LAW AND FACTS OF THE CASE. 2. THAT THE CIT(A) ERRED IN UPHOLDING THE ORDER OF THE INCOME - TAX OFFICER (TDS), WARD - 2(2), BANGALORE ('AO' FOR SHORT), HOLDING THAT THE APPELLANT WAS LIABLE TO DEDUCT TAXES AT SOURCE ON THE FEES / REMUNERATION PAID TO ITS CONSULTANT - DOCTORS UNDER SECTION 192 OF THE INCOME - TAX ACT, 1961 ('THE ACT' FOR SHORT), AS AGAINST UNDER SECTION 194J OF THE ACT, AS WAS DONE BY THE APPELLANT. 3. THAT THE CIT(A) ERRED IN UPHOLDING THE AO'S ORDER TREATING THE APPELLANT AS AN ASSESSEE IN DEFAU LT. 4. THAT THE CIT(A) GROSSLY ERRED IN CONCLUDING THAT THERE WAS AN EMPLOYER - EMPLOYEE RELATIONSHIP BETWEEN THE APPELLANT AND ITS CONSULTANT DOCTORS AND THAT THE REMUNERATION PAID TO THEM BY THE APPELLANT WAS CHARGEABLE TO TAX UNDER THE HEAD 'SALARIES' NECESS ITATING DEDUCTION OF TAX AT SOURCE UNDER SECTION 192 OF THE ACT. 5. THAT THE CIT(A) COMPLETELY FAILED TO APPRECIATE THE SIGNIFICANT TERMS ON WHICH THE CONSULTANT - DOCTORS PERFORMED THEIR OBLIGATIONS AND DUTIES IN THE PROPER PERSPECTIVE INASMUCH AS THEY WERE NO T UNDER THE CONTROL AND/OR SUPERVISION OF THE ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 6 APPELLANT WHILE DISCHARGING THEIR PROFESSIONAL DUTIES SO MUCH SO THAT THEY WERE GIVEN A FREE HAND IN TREATING PATIENTS, FIXING THEIR OWN OPD HOURS DEPENDING ON THEIR OTHER PROFESSIONAL COMMITMENTS ELSEWHERE, SO LONG AS THEY WERE AVAILABLE ON CALL IN CASE OF EMERGENCIES. 6. THAT THE CIT(A) ALTOGETHER MISSED THE VITAL REQUIREMENTS TO BRING ABOUT EMPLOYER - EMPLOYEE RELATIONSHIP, VIZ. PERFORMING DIRECTLY UNDER CONTROL AND SUPERVISION OF THE EMPLOYER, AND THUS COMPLETELY FAILED TO APPRECIATE THAT THE VERY NATURE OF THE SERVICE RENDERED BY THE CONSULTANT - DOCTORS DID NOT PERMIT SUCH CONTROL AND / OR SUPERVISION BY THE APPELLANT. 7. THAT THE CIT(A) FAILED TO APPRECIATE IN THE PROPER PERSPECTIVE THE FACT THAT THE CONSULTANT - DOCT ORS WERE NOT ENTITLED TO AND WERE THUS NOT GIVEN THOSE BENEFITS THAT ONLY EMPLOYEES ARE STATUTORILY ENTITLED TO SUCH AS PF, GRATUITY, LEAVE ENCASHMENT, RETIREMENT BENEFITS ETC., AND THAT THE SAID DOCTORS WERE ALL SPECIALIZED PROFESSIONALS REQUIRED TO PERFO RM ONLY SPECIFIC TASKS / OPERATIONS AND NOT GENERAL DAY - TO - DAY TASKS. 8. THAT THE CIT(A) ERRED IN PLACING UNDUE RELIANCE ON THE TERMS OF THE LETTER OF APPOINTMENT WITHOUT ALSO PROPERLY EXAMINING THE CONDUCT OF THE APPELLANT AND THE CONSULTANT - DOCTORS INTER - SE IN THE COURSE OF THEIR ENGAGEMENT WHICH WOULD CLEARLY GO TO SHOW THAT THERE WAS NO EMPLOYER - EMPLOYEE RELATIONSHIP BETWEEN THE TWO. 9. THAT THE CIT(A) ERRED IN WHOLLY FAILING TO APPRECIATE THE CLEAR DISTINCTION BETWEEN A 'CONTRACT FOR SERVICE' AND 'CONTRACT OF SERVICE' WITH THE CONTRACT BETWEEN THE APPELLANT AND THE CONSULTANT - DOCTORS CLEARLY AND UNMISTAKABLY FALLING WITHIN THE AMBIT OF THE FORMER. 10. THAT, WITHOUT PREJUDICE TO THE ABOVE AND IN ANY EVENT, SINCE THE CONSULTANT - DOCTORS HAVE INDISPUTABLY ADMITTED AND REMITTED THE ENTIRE TAX PAYABLE BY THEM FOR THE RELEVANT ASSESSMENT YEARS IN THEIR ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 7 ASSESSMENTS UNDER THE ACT, THE APPELLANT CANNOT BE TREATED AS AN ASSESSEE IN DEFAULT UNDER SECTION 201 OF THE ACT. 11. THAT, FURTHERMORE, THE OBSERVATION THAT THE PRACTICE O F THE APPELLANT IN DEDUCTING TAXES AT SOURCE UNDER SECTION 194J OF THE ACT IS MUTUALLY BENEFICIALLY TO THE APPELLANT AND THE CONSULTANT - DOCTORS IS UNJUSTIFIED. 12. THAT THE INFERENCES DRAWN FROM AND THE CONCLUSIONS ARRIVED AT FROM THE APPOINTMENT LETTERS OF CO NSULTANT - DOCTORS AND FROM THE STATEMENT RECORDED FROM THE CONSULTANT - DOCTORS ARE ERRONEOUS AND MISPLACED. 13. THAT THE RELIANCE PLACED BY THE CIT(A) ON THE DECISIONS CITED IN THE IMPUGNED ORDER IS WHOLLY MISPLACED AS THE FACTS INVOLVED AND THE RATIO EMERGING F ROM THE SAID DECISIONS ARE NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE. 14. THAT THE CIT(A) ERRED IN OBSERVING THAT THE CONSULTANT - DOCTORS WERE ENTITLED TO A FIXED REMUNERATION IRRESPECTIVE OF THE NUMBER OF PATIENTS / OPERATIONS AND ALSO FURTHER ERRED IN P LACING UNDUE RELIANCE ON SUCH AN ERRONEOUS OBSERVATION 15. THAT THE CIT(A) ERRED IN UPHOLDING THE LEVY OF INTEREST UNDER SECTION 201(1A) OF THE ACT. 16. THAT, THEREFORE, THE CIT(A) ERRED IN HOLDING THAT THERE WAS NO INFIRMITY IN ORDER OF THE AO UNDER SECTIONS 201(1) AND 201(1A) OF THE ACT. 17. THAT THE ORDER OF THE CIT(A) IS OTHERWISE UNSUSTAINABLE IN LAW AND ON FACTS AND IS THUS LIABLE TO BE SET ASIDE BY THIS HON'BLE TRIBUNAL. THE APPELLANT CRAVES LEAVE TO ADD TO OR ALTER, BY DELETION, SUBSTITUTION OR OTHERWISE, THE ABOVE GROUNDS OF APPEAL, AT ANY TIME BEFORE OR DURING THE HEARING OF THE APPEAL. THE APPELLANT FURTHER SUBMITS THAT THE ABOVE GROUNDS ARE INDEPENDENT OF AND WITHOUT PREJUDICE TO ONE ANOTHER. PRAYER ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 8 THE APPELLANT MOST HUMBLY PRAYS THAT THIS H ON'BLE TRIBUNAL BE PLEASED TO ALLOW THE ABOVE APPEAL AND SET ASIDE THE ORDER OF CIT(A) DATED 23.03.2017, IN THE INTERESTS OF JUSTICE AND EQUITY. ITA NO.1899 /B/2019(2012 - 13) 1. T HAT THE ORDERS PASSED BY THE ADDITIONAL COMMISSIONER OF INCOME - TAX, TDS RANGE 3, BANGALORE (HEREINAFTER REFERRED TO AS THE 'ASSESSING OFFICER' OR 'AO') AND THE COMMISSIONER OF INCOME - TAX (APPEALS) - 10 ('CIT(A)'), ARE BAD IN LAW AND LIABLE TO BE SET ASIDE. 2.T HAT THE AO ERRED IN LEVYING PENALTY UNDER SECTION 271C OF THE INCOME - TAX ACT, 1961 ('THE ACT'), ALTHOUGH THE NECESSARY REQUIREMENTS FOR LEVY OF PENALTY UNDER THE SAID PROVISION ARE NOT SATISFIED. THE CIT(A) FURTHER ERRED IN CONFIRMING THE ORDER PASSED B Y THE AO. 3. T HAT THE AO ERRED IN LEVYING PENALTY UNDER SECTION 271C OF THE ACT ON THE GROUND THAT THE APPELLANT HAD NOT DEDUCTED TAX AS REQUIRED IN TERMS OF SECTION 192 OF THE ACT DESPITE THE SAID PROVISION NOT BEING APPLICABLE TO THE CONSULTANT DOCTORS C ONSULTING WITH IT AND IT HAD RIGHTLY DEDUCTED TAX IN TERMS OF SECTION 194J OF THE ACT. THE CIT(A) FURTHER ERRED IN CONFIRMING THE ORDER PASSED BY THE AO. 4. T HAT THE AO ERRED IN LEVYING PENALTY UNDER SECTION 271C OF THE ACT WHEN THE VERY ISSUE OF WHETHER THE APPELLANT IS LIABLE TO BE HELD AS AN ASSESSEE - IN - DEFAULT FOR THE ALLEGED FAILURE TO DEDUCT TAX AT SOURCE UNDER SECTION 192 OF THE ACT WHEN MAKING PAYMENTS DUR ING THE RELEVANT YEAR TO THE CONSULTANT DOCTORS AS AGAINST UNDER SECTION 194J OF THE ACT IS PENDING ADJUDICATION BEFORE THIS HON'BLE TRIBUNAL. ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 9 5. T HAT THE INITIATION OF PENALTY PROCEEDINGS BY THE AO WHEN THE ORDERS LEVYING TAX IS YET TO ATTAIN FINALITY IS WHOLLY PREMATURE. 6. T HAT IN ANY EVENT, THE APPLICATION OF SECTION 192 TO THE FACTS OF THE APPELLANT BEING DEBATABLE, AND THE APPELLANT HAVING SHOWN REASONABLE CAUSE FOR NOT DEDUCTING TAX IN TERMS OF THE SAID PROVISION, PENALTY UNDER SECTION 271C OUGHT NOT TO HAVE BEEN LEVIED. THE APPELLANT SUBMITS THAT THE ABOVE GROUNDS ARE INDEPENDENT OF AND WITHOUT PREJUDICE TO ONE ANOTHER. THE APPELLANT CRAVES LEAVE TO ADD TO OR ALTER, BY DELETION, SUBSTITUTION OR OTHERWISE, THE ABOVE GROUNDS OF APPEAL. AT ANY TIME BEFORE OR DURING THE HEARING OF THE APPEAL. RELIEF THE APPELLANT PRAYS THAT THIS HON'BLE TRIBUNAL BE PLEASED TO ALLOW THE APPEAL AND SET ASIDE THE IMPUGNED ORDER DATED 22.07.2019 AND ALLOW THE APPEAL BY QUASHING THE ORDER DATED 23.10.2017 PASSED UNDER SECTION 271C OF THE ACT BY THE RESPONDENT, IN THE INTERESTS OF JUSTICE AND EQUITY . ITA NO.1900/B/2019(2013 - 14) 1. T HAT THE ORDERS PASSED BY THE ADDITIONAL COMMISSIONER OF INCOME - TAX, TDS RANGE 3, BANGALORE (HEREINAFTER REFERRED TO AS THE 'ASSESSING OFFICER' OR 'AO') AND THE COMMISSIONER OF INCOME - TAX (APPEALS) - 10 ('CIT(A)'), ARE BAD IN LAW AND LIABLE TO BE SET ASIDE. 2.THAT THE AO ERRED IN LEVYING PENALTY UNDER SECTION 271C OF THE INCOME - TAX ACT, 1961 ('THE ACT'), ALTHOUGH THE NECESSARY REQUIREMENTS FOR LEVY OF PENALTY UNDER THE SAID PROVISION ARE NOT SATISFIED. THE CIT(A) FURTHER ERRED IN CONFIRMING THE ORDER PASSED B Y THE AO. ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 10 3. THAT THE AO ERRED IN LEVYING PENALTY UNDER SECTION 271C OF THE ACT ON THE GROUND THAT THE APPELLANT HAD NOT DEDUCTED TAX AS REQUIRED IN TERMS OF SECTION 192 OF THE ACT DESPITE THE SAID PROVISION NOT BEING APPLICABLE TO THE CONSULTANT DOCTORS C ONSULTING WITH IT AND IT HAD RIGHTLY DEDUCTED TAX IN TERMS OF SECTION 194J OF THE ACT. THE CIT(A) FURTHER ERRED IN CONFIRMING THE ORDER PASSED BY THE AO. 4. THAT THE AO ERRED IN LEVYING PENALTY UNDER SECTION 271C OF THE ACT WHEN THE VERY ISSUE OF WHETHER TH E APPELLANT IS LIABLE TO BE HELD AS AN ASSESSEE - IN - DEFAULT FOR THE ALLEGED FAILURE TO DEDUCT TAX AT SOURCE UNDER SECTION 192 OF THE ACT WHEN MAKING PAYMENTS DURING THE RELEVANT YEAR TO THE CONSULTANT DOCTORS AS AGAINST UNDER SECTION 194J OF THE ACT IS PEND ING ADJUDICATION BEFORE THIS HON'BLE TRIBUNAL. 5. THAT THE INITIATION OF PENALTY PROCEEDINGS BY THE AO WHEN THE ORDERS LEVYING TAX IS YET TO ATTAIN FINALITY IS WHOLLY PREMATURE. 6. THAT IN ANY EVENT, THE APPLICATION OF SECTION 192 TO THE FACTS OF THE APPELLANT BEING DEBATABLE, AND THE APPELLANT HAVING SHOWN REASONABLE CAUSE FOR NOT DEDUCTING TAX IN TERMS OF THE SAID PROVISION, PENALTY UNDER SECTION 271C OUGHT NOT TO HAVE BEEN LEVIED. THE APPELLANT SUBMITS THAT THE ABOVE GROUNDS ARE INDEPENDENT OF AND W ITHOUT PREJUDICE TO ONE ANOTHER. THE APPELLANT CRAVES LEAVE TO ADD TO OR ALTER, BY DELETION, SUBSTITUTION OR OTHERWISE, THE ABOVE GROUNDS OF APPEAL. AT ANY TIME BEFORE OR DURING THE HEARING OF THE APPEAL. RELIEF THE APPELLANT PRAYS THAT THIS HON'BLE TRIBUNAL BE PLEASED TO ALLOW THE APPEAL AND SET ASIDE THE IMPUGNED ORDER DATED 22.07.2019 AND ALLOW THE APPEAL BY QUASHING THE ORDER DATED ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 11 23.10.2017 PASSED UNDER SECTION 271C OF THE ACT BY THE RESPONDENT, IN THE INTERESTS OF JUSTICE AND EQUITY. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: ASSESSEE IS RUNNING H OSPITAL IN THE NAME OF SPARSH HAVING TWO BRANCHES, ONE AT BOMMANAHALLI AND OTHER AT NO.146, INFANTRY ROAD BANGALORE. A SURVEY UNDER SECTION 133A OF THE ACT WAS CONDUCTED IN ONE OF THE CASE OF ASSESSEE AN D IT WAS FOUND THAT ASSESSEE DEDUCTED TDS UNDER SECTION 194J IN RESPECT OF REMUNERATION PAID TO A FEW CONSULT ING DOCTORS. LD.AO CARRIED OUT SCRUTINY OF CERTAIN APPOINTMENT LETTERS/CONFIRMATION LETTERS , AND HE WAS OF OPINION THAT , THEY ARE EMPLOYED WITH ASSESSEE ON M ONTHLY REMUNERATION/CONSULTATION FEE MUTUALLY AGREED , AND THEREFORE , REMUNERATION PAID TO THEM WAS CHARGEABLE TO TAX UNDER THE HEAD SALARY , AND TAX WAS TO BE DEDUCTED AT SOURCE AS PER PROVISIONS OF SECTION 192 OF THE A CT. LD.AO ACCORDINGLY IS SUED SHOW CAUSE LETTER TO ASSESSEE CALLING UPON EXPLANATION AS TO WHY COMPANY SHOULD NOT BE TREATED AS ASSESSEE IN DEFAULT , IN ACCORDANCE WITH PROVISIONS OF SECTION 201 (1) READ WITH SECTION 201 (1A) OF THE ACT, FOR SHORT DEDUCTION OF T AX AT AVERAGE RATE O F TAX ON REMUNERATION PAID TO SUCH CONSULTANT DOCTORS UNDER SECTION 192 OF THE ACT. 2.1 ASSESSEE IN RESPONSE TO NOTICE VIDE LETTER DATED 15/01/13 SUBMITTED DETAILED DISCUSSIONS. THE SUM AND SUBSTANCE OF THE SUBMISSIONS ADVANCED BY ASSESSEE WAS THAT CONSUL TANT DOCTORS WERE RENDERING THEIR SERVICES AND THERE WAS NO EMPLOYEE EM PLOYER RELATIONSHIP AND THAT CONTRACT BETWEEN HOSPITAL AND SUCH CONSULTANT DOCTORS WAS OF CONTRACT FOR SERVICE INSTEAD OF CONTRACT OF SERVICE. ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 12 2.2 IT WAS FURTHER SUBMITTED THAT PROC EDURE FOR RECRUITING REGULAR EMPLOYEE DOCTORS AND CONSULTANT DOCTORS WERE DIFFERENT , AS TERMS AND CONDIT IONS OF THEIR SERVICES WERE DIFFERENT. IT WAS SUBMITTED THAT DOCTORS WH O WERE EMPLOYED WITH ASSESSEE PROVIDE D SERVICES ROUND - THE - CLOCK THROUGHOUT THE YEAR , ENSURE D THEIR AVAILABILITY AT ANY POINT OF TIME. WHEREAS CONSULTING DOCTORS WERE INDEPENDENT AND EXERCISING THEIR SKILLS/EXPERIENCE/EXPERTISE AS A PROFESSIONAL FOR FIXED PERIOD OF TIME WHICH WAS FLEXIBLE. BASE D UPON THE ABOVE FEATURES , IT WAS SUBMITTED BY ASSESSEE THAT CONSULTING DOCTOR RENDERED PROFESSIONAL SERVICES TO ASSESSEE AND REMUNERATION WAS TAXABLE UNDER SECTION 194 J OF THE A CT. 2.3 LD.AO NOT BEING SATISFIED WITH SUBMISSIONS OF ASSESSEE HELD THAT NINE DOCTORS TO WHOM PAYMENT WERE MADE AFTER DEDUCTING TDS UNDER SECTION 194J, WERE EMPLOYEES OF ASSESSEE AND WERE SUBJECTED TO TAX UNDER SECTION 192. 2.4 LD.AO TREATED ASSESSEE TO BE ASSESSEE IN DEFAULT AND COMPUTED TAXABLE UNDER SECTION 201 (1) AND CONSEQUEN T INTEREST UNDER SECTION 201 (1A) OF THE ACT FOR YEARS UNDER CONSIDERATION . AGGRIEVED BY ADDITIONS MADE BY LD. AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A). 2.5 LD. CIT (A) PLACED RELIANCE UPON DECISION OF HONBLE SUPREME COURT IN CASE OF PIYARE LAL AD ISHWAR LAL VS, CIT REPORTED IN (1960) 40 ITR 17, DECISION OF HYDRABAD ITAT IN CASE OF WOCKHARDT HOSPITAL LTD IN ITA NO. 985 AND 986/DEL/2011 AND DECISION OF MUMBAI TRIBUNAL IN CASE OF RED CHILIES ENTERTAINMENT PRIVATE LTD IN ITA NO. 6655 - 6656/M/2014 WHEREI N, ISSUE AS TO WHETHER REMUNERATION TO ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 13 VARIOUS PERSONS PURSUANCE TO SERVICE CONTRACT AGREEMENT WAS TO BE DEDUCTED UNDER SECTION 192 OR 194J OF THE ACT WAS CONSIDERED. LD.CIT (A), UPHELD VIEW OF LD.AO THAT ASSESSEE EXERCISED CONTROL OVER ALLEGED NINE CONSULT ANT DOCTORS BY FIXING TI ME FOR THEIR AVAILABILITY IN HOSPITAL AND TO ATTEND TO CAUSE AS AND WHEN REQUIRED BEING ONE OF THE CONDITIONS EMPHASISED IN S ERVICE AGREEMENT OF REGULAR DOCTORS. 3. AGGRIEVED BY OBSERVATIONS OF LD.CIT (A) ASSESSEE IS IN APPEAL BEFOR E US NOW. LD.AR PLACED T W O PREPOSITIONS BEFORE US , WHICH ARE AS UNDER: 1.T HAT ASSESSEE HAS RIGHTFULLY DEDUCTED TDS UNDER SECTION 194J OF THE ACT , A S ALLEGED NINE DOCTORS WERE CONSULTANT WITH ASSESSEE AND NOT REGULAR EMPLOYEE DOCTORS WHO WERE ELIGIBLE FOR V ARIOUS STATUTORY BENEFITS. 2. ALTERNATIVELY , LD.AR SUBMITTED THAT, EVEN IF IT IS CONSTRUED THAT THERE EXISTS EMPLOYEE EMPLOYER RELATIONSHIP BETWEEN ASSESSEE AND THESE ALLEGED NINE DOCTORS, ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT, AS TDS PROVISIONS HAS BEEN STRICTLY FOLLOWED BY ASSESSEE . IT WAS SUBMITTED THAT ALL E GE D NINE DOCTORS HAVE PAID TAXES ON AMOUNT RECEIVED FROM ASSESSEE AS PROFESSIONAL FEES. LD.AR TENDERED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDE R RULE 29 SEEKING ADMISSION OF DOCUMENTS BEING FORM 26A ALONG WITH AFFIDAVIT OF RESPECTIVE DOCTORS. 3.1 LD.AR SUBMITTED THAT IN THE EVENT ASSESSEE SUCCEEDS ON FIRST PROPOSITION , TH ERE IS NO NEED TO PROCEED WITH SECOND PROPOSITION. ACCORDINGLY , HE STARTED HIS ARGUMENTS TO ESTABLISH HIS CASE UNDER FIRST PROPOSITION AND SUBMITTED AS UNDER: ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 14 LD.AR SUBMITTED THAT DOCTORS WERE NOT REGULAR DOCTORS AS TERMS AND CONDITIONS ENTERED INTO BY NINE DOCTORS, WERE VERY MUCH DIFFERENT FROM REGULAR DOCTORS, WHO W ERE APPOINTED ON FULL - TIME BASIS. HE PLACED RELIANCE UPON PAGE 52 - 55 OF PAPER BOOK WH EREIN TERMS AND CONDITIONS FOR REGULAR EMPLOYEE DOCTORS, ELIGIBLE FOR ALL BASIC BENEFIT S LIKE HRA, TRAVELLING ALLOWANCE, PF DEARNESS ALLOWANCE ETC . WHEREAS PAGE 56 IS APP OINTMENT LETTER OF DOCTOR SPECIALISED IN A PARTICULAR FIELD ON CONTRACT BASIS. HE DREW ATTENTION TO A CHART SHOWING DIFFERENCE BETWEEN REGULAR EMPLOYEES AND PROFESSIONAL EMPLOYEES. 3.2 LD.AR SUBMIT TED THAT INITIALLY DOCTORS ARE GIVEN FIXED FEE AS DEPARTMENTS TO WHICH THEY WERE APPOINTED WERE AT THE NASCENT STAGE OF DEVELOPMENT . S UBSEQUENTLY , THESE DOCTORS WERE BEING COMPENSATED ON VARIABLE B ASED ON THEIR PERFORMANCE AND DUTY HOURS. REFERRING TO PAGE 60, LD.AR SUBMITTED THAT CLAUSE 3.11 CLEARLY SPE CIFIES THAT TOTAL REMUNERATION PAYABLE TO D OCTOR C ONSULTANTS , DEPENDS ON NUMBER OF PATIENTS TREATED BY CONSULTANT DOCTOR AND TH AT THE CONSULTANT FEES WAS SHARED ALONG WITH DIS COUNT ALLOWED TO PATIENTS. HE ALSO EMPHASI Z ED THAT LIST OF NINE DOCTORS ALLEGE D BY LD.AO ARE NOT ELIGIBLE FOR ANY STATUTORY BENEFITS WHICH ARE AVAILABLE TO REGULAR EMPLOYEE DOCTORS. 3.3 LD.AR PLACED HEAVY RELIANCE UPON DECISION OF C O - ORDINATE B ENCH OF THIS TRIBUNAL IN CASE OF ITO (TDS) VS M/S.TELERADIOLOGY SOLUTIONS PVT.LTD, IN ITA NO. 704/B/2014 ALONG WITH CO NO. 100/B/2014 FOR ASSESSMENT YEAR 2012 - 13 VIDE ORDER DATED 27/03/15, WHEREIN DECISION OF THIS TRIBUNAL IN ITO, TDS VS M/S ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 15 ELBIT DIAGNOSTIC LTD IN ITA NO.500 - 504/B/2008 VIDE ORDER DATED 26/11/08 HAS BEEN FOLLOWED. HE SUBMITTED THAT HONBLE KARNATAKA HIGH COURT VIDE ORDER DATED 26/02/16 IN ITA NO.425/2015 AND 643/2015 UPHELD VIEW OF THIS TRIBUNAL IN ITO (TDS) VS M/S.TELERADIOLOGY SOLUTIONS PVT.LTD, (SUPRA). 3.4 LD.AR SUBMITTED THAT ALLEGED NINE DOCTORS FILED THEIR RETURNS DEC LARING REMUNERATION RECEIVED FROM ASSESSEE HAVE BEEN ACCEPTED BY LD.AO AS PROFESSIONAL FEES. 4. ON THE CONTRARY, LD.SR.DR REFERRED TO EMPLOYMENT LETTER AT PAGE - 56 AND SUBMITTED THAT REMUNERATION RECE IVED BY THESE DOCTORS ARE IN NATURE OF SALARY. HE REFERRED TO STATEMENT R ECORDED BY LD.AO PLACED AT PAGE - 7 WHEREIN , A SSESSING O FFICER EXAMINED SOME DOCTOR. LD.SR.DR SUBMITTED THAT IN THE STATEMENT RECORDED, DOCTOR MENTIONED THAT SHE DO NOT VISIT ANY OTHER HOSPITALS AND THAT SHE IS AVAILABLE IN ASSESSEE HO SPITAL BETWEEN 9 AM TO 4 PM. LD.SR.DR SUBMITTED THAT THIS ITSELF MAKES IT CLEAR THAT CONSULTANT DOCTORS , DO NOT VISIT ANY OTHER HOSPITALS AND ARE AVAILABLE TO RENDER SERVICES TO ASSESSEE ONLY. HE THUS, SUPPORTED THE ADDITION MADE BY THE LD.AO . 4.1 WE HA VE PERUSED SUBMISSIONS ADVANCED BY BOTH SIDES IN THE LIGHT OF RECORDS PLACED BEFORE US. IT IS OBSERVED THAT ASSESSEE IS A PRIVATE LIMITED COMPANY ADMINISTERING AND MANAGING ORTHOPAEDIC HOSPITAL. THE AREAS OF SPECIALISATION INCLUDE TRAUMA CARE, JOINT REPLAC EMENT, PAEDIATRIC ORTHOPAEDICS, SPORTS MEDICINE, LENDER RECONSTRUCTION, BONE TUMOUR SURGERY, HAND SURGERY, GRANNY OH FACIAL SURGERY, COSMETIC/BODY ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 16 CONTOURING SURGERY, RECONSTRUCTIVE SURGERY, MAXILIO - FACIAL SURGERY AND CONGENITAL ANOMALY CORRECTION. ASSESSE E DEDUCTED TAX AT SOURCE UNDER SECTION 194J OF THE A CT , ON REMUNERATION PAID TO FOLLOWING NINE DOCTORS WHICH ARE THE SUBJECT MATTER OF DISPUTE . 1. DR. SHARAN PATIL 2. DR.YOHANAN JOHN 3. DR.ASHOK RAJ KAUL 4. DR.PRASHANT TEJAMANI 5. DR.PRABHUDEV BASAPPA 6. DR.SHARANU PATIL 7. D R.SUSHIL NAHAR 8. DR.JAYANTH SAMPATH 9. DR.S.RAVINARAYAN IT IS A CASE OF ASSESSEE THAT REMUNERATION DRAWN BY THESE DOCTORS ARE VARIABLE PAY WITHOUT ANY WRITTEN CONTRACT WHEREAS REGULAR EMPLOYEE DOCTORS DRAWING FIXED SALARIES AND ARE ELIGIBLE FOR VARIOUS SERVICE BENEFITS AND EMOLUMENTS. IT WAS THUS , SUBMITTED BY LD.AR THAT REMUNERATION ADVANCED TO THESE NINE DOCTORS WERE PROFESSIONAL FEES. ON THE CONTRARY , IT IS THE CASE OF REVENUE THAT REMUNERATION PAID TO THESE NINE DOCTORS ARE IN THE NATURE OF SALARY AND TAX HA S TO BE DEDUCTED AS PER SECTION 192 OF THE A CT. 4.2 WE DRAW SPECIFIC ATTENTION TO STATEMENT REC ORDED BY LD.AO REPRODUCED IN ASSESSMENT ORDER REFERRED TO BY LD.SR. DR, OF SMT. MAMTA PATIL, WHO WAS IN CHARGE OF INVESTIGATIONS DONE IN MEDICAL LABORATORY. IT IS OBSERVED THAT SHE IS NOT ONE AMONG THE LIST OF DOCTORS ALLEGED TO HAVE BEEN PAID PROFESSIONAL FEES BY ASSESSEE. ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 17 FURTHER , APPOI NTMENT LETTER REPRODUCED BY LD.AO AT PAGE - 6 OF HIS ORDER OF DR.VIKAS ELLUR , WHO IS CONSULTANT ORTHOPAEDIC IS SAID TO HAVE BEEN DRAWING REMUNERATION OF RS. 35,000 PER MONTH IN THE BEGINNING WHICH W OULD SHIFTED ON INCENTIVE BASIS IN DUE COURSE OF TIME DEPENDING ON DEPARTMENTAL INCOME. IT IS A GAIN OBSERVED THAT NAME OF THIS DOCTOR DOES NOT FORM PART OF ALLEGED LIST BY LD.AO O F WHOM REMUNERATION HAS BEEN PAID AS PROFESSIONAL FEES BY ASSESSEE . THE INSTANCES REFERRED TO BY AUTHORITIES BELOW DO NOT SUPPORT CASE OF REVENUE AS THEY ARE NOT ONE AMONG THOSE TO WHOM ASSESSEE PAID PROFESSIONAL FEES. FURTHER , IN PAPER BOOK FILED BEFO RE US PAGE 237 - 240 REFERS TO APPOINTMENT LETTER ISSUED TO REGULAR STAFF DOCTORS , CLEARLY INDICATES VARIOUS BENEFITS DRAWN BY SUCH REGULAR STAFF DOCTORS. PAGE 241 IS APPOINTMENT LETTER ISSUED TO PROFESSIONAL/CONSULTANTS WHEREIN REMUNERATION IS PAYABLE ON CONSOLIDATED BASIS , WITHOUT ANY RESTRICTION TO PRACTICE INDEPENDENTLY. IT IS ALSO VERY CLEAR THAT THESE DOCTORS ARE NOT ENTITLED FOR ANY LEAVE TRAVEL BENEFITS AND RETIREMENT BENEFITS PROVIDENT FUND CONCESSION IN MEDICAL TREATMENT OF RELATIVES ETC. AT PAGE 244 OF PAPER BOOK, CLAUSE 5.8 - 5.9 REVEALS THAT THESE DOCTORS ARE ENTITLED TO SHARE PROFITS AS WELL AS LOSS OF THE IR RESPECTIVE DEPARTMENTS OR SHARE FEES RECEIVED FROM PATIENTS AND MAY WORK PART - TIME WITH HOSPITAL OR DEVOTE HIS ENTIRE TIME FOR PARTICULAR HOSPITAL. 4.3 IT IS OBSERVED THAT ALL THESE CONDITIONS HAVE NOT BEEN VERIFIED BY AUTHORITIES BELOW SPECIALLY IN CASE OF ALLEGED NINE DOCTORS . WE FIND THAT FINDINGS OF LD.CIT (A) RELYING UPON REGULAR EMPLOYEE ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 18 DOCTOR BEING SMT. MAMTA PATIL IS THEREFORE, NOT CORRECT. FUR THER, E MPLOYMENT LETTER ANALYSED BY LD.AO OF DR. VIKAS ELLUR ARE IDENTICAL TO DRAFT EMPLOYMENT LETTER PLACED AT PAGE 237 OF PAPER BOOK , WHEREIN DESIGNATION , DEPARTMENT TO WHICH DOCTOR WOULD BE WORKING AND DOCTOR TO WHOM SUCH DOCTOR WOULD REPORT I S CLEARLY INDICATED. 4.4 WE ARE THEREFORE , OF OPINION THAT INFERENCE DRAWN BY LD. CIT (A) ARE ON THE BASIS OF VERIFICATION AND DOCUMENTS OF DOCTORS , WHO DO NOT FORM PART OF ALLEGED LIST OF CONTRACT DOCTORS IS NOT CORRECT. IN FACT, ENTIRE FINDING OF AUTHORITIES BELO W ARE ON THE BASIS OF STATEMENT RECORDED AND DOCUMENTS OF DOCTORS WHO ARE NOT PART OF LIST OF DOCTORS. 4.5 IN THE DECISION RELIED UPON BY LD. AR IN CASE OF ITO (TDS) VS M/S.TELERADIOLOGY SOLUTIONS PVT.LTD, (SUPRA), IT IS OBSERVED THAT FACTS ARE DIFFERENT , AS IT IS A CASE OF D IAGNOSTIC CENTRE AND THIS T RIBUNAL ANALYSED APPOINTMENTS OF DOCTORS WHO ISSUE VARIOUS REPORTS GIVING PATHOLOGY FINDINGS. IN PRESENT FATS OF CASE CONTRACTS PLACED AT RELEVANT PAGES IN PAPER BOOK ARE BLANK CONTRACTS , AND THEREFORE, WE AR E UNABLE TO DRAW ANY INFERENCE IN PRESENT FACTS, AS THERE IS NOTHING PLACED ON RECORD TO ANALYSE ACTUAL APPOINTMENT LETTER ISSUED BY ASSESSEE TO ALLEGED NINE DOCTORS IN ORDER TO DECIPHER NATU RE OF SERVICES PROVIDED BY THEM. THOUGH , ON FACE OF IT, S AMPLE BLANK APPOINTMENT LETTER AT PAGE 241 SEEMS TO BE ONE HIGHLIGHTING I T TO BE CONTRACT O F SERVICES. H OWEVER , ASSESSEE WILL HAVE TO MAKE OUT ITS CASE OF THERE BEING NO EMPLOYEE EMPLOYER RELATIONSHIP WITH ALLEGED NINE DOCTORS ON B A SIS OF ACTUAL APPOINTMENT L ETTER ISSUED TO THEM. ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 19 AS HELD BY VARIOUS HIGH COURTS AS WELL AS HONBLE SUPREME COURT , CONTRACTS ENTERED WOULD HAVE TO BE READ AS A W HOLE AND IN THE BACKDROP OF RELATIONSHIP, WHICH WAS OF ENGAGEMENT FOR CERTAIN PURPOSE AND TIME. NO DOUBT THAT THE SKILL OF DOCTORS AND THEIR EXPERTISE WOULD BE FOUNDATION, ON WHICH AN INVITATION IS EXTENDED TO THEM TO BECOME PART OF ASSESSEE , WHICH IS A PUBLIC LIMITED. IN THE DECISION RELIED UPON BY LD.AR PLACED IN PAPER BOOK AT PAGE 14 OF HONBLE BOMBAY HIGH COURT IN CASE OF CIT VS GRANT MEDICAL FOUNDATION (RUBY HALL CLINIC) REPORTED IN (2015) 375 ITR 49 , HONBLE COURT SUMMED UP VARIOUS TESTS IN ORDER TO IDENTIFY ACTUAL RELATIONSHIP BETWEEN A DOCTOR AND THE HOSPITAL TO WHOM HE OR SHE PROVIDES THEIR SERVICES. IN OUR OPINION THE SE 9 CASES WILL HAVE TO BE VERIFIED INDEPENDENTLY HAVING REGARDS TO THEIR EMPLOYMENT LETTER IN ORDER TO ASCERTAIN ACTUAL NATURE OF SERVICES RENDERED BY THEM TO ASSESSEE, VIS - A - VIS SERVICES RENDERED BY A REGULAR EMPLOYEE DOCTOR OF ASSESSEE. 4.5 ASSESSEE P LACED BEFORE US FORM 26A ISSUED BY ACCOUNTANT OF ASSESSEE, IN RESPECT OF PAYMENT MADE BY ASSESSEE TO THESE ALLEGED NINE DOCTORS. AS ADDITIONAL EVIDENCE IN RESPECT OF THESE NINE DOCTORS WHICH IN OUR CONSIDERED OPINION , DESERVES TO BE ADMITTED AND REQUIRES DUE VERIFICATION ALSO. WE THEREFORE ADMIT ADDITIONAL EVIDENCES FILED BY LD.AR AT THIS STAGE. IN OUR OPINION , LD. AO WILL HAVE TO VERIFY ALL THESE DETAILS TO ASCERTAIN TRUE FACTS. WE DIRECT LD. AO TO CALL FOR ALL NECESSARY ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 20 INFORMATION/DETAILS IN RESPECT OF THESE NINE DOCTORS, THE LETTER OF APPOINTMENT ISSUED BY ASSESSEE AND RE TURNS FILED BY THESE DOCTORS. 4.6 WE WOULD LIKE TO CAUTION LD.AO THAT IN THE EVENT , IT IS FOUND THAT THESE DOCTORS W ERE PROVIDING PROFESSIONAL SERVICES TO ASSESSEE WHICH SATISFIE S REQUIREMENT OF A VISITING DOCTOR , UNDOUBTEDLY , IT CANNOT BE HELD THAT RELATIONSHIP BETWEEN A SSESSEE AND THE CONCERNED DOCTORS WERE THAT OF EMPLOYEE - EMPLOYER AND NO DEMAND COULD BE RAISED UND ER SECTION 201(1) AND 201(1A) OF THE A CT. ON THE CONTRARY, IF THERE EXIST EMPLOYEE - EMPLOYER RELATIONSHIP, THE BENEFIT MAY BE GRANTED T O ASSESSEE UPON VERIFYING THE A DDITIONAL EVIDENCE FILED, W H ICH WE HAVE ALREADY ADMITTED IN PRE C EDING PARAS. 5.1 WE THEREFORE , SET ASIDE APPEALS CHALLEN GING DEMAND RAISED UNDER SECTION 201(1) AND 201 (1A) OF THE ACT , BACK TO LD. AO FOR DE NOVO ASSESSMENT . AS WE HAVE SET ASIDE ADDITIONS BACK TO LD. AO FOR VERIFICATION ON DE NOVO BASIS, PENALTY LEVIED UNDER SECTIO N 271C WILL NOT SURVIVE. HOWEVER, THE AO IS AT LIBE RTY TO INITIATE PENALTY PROCEEDING S U/S 271C OF THE IT ACT, 1961 IN THE SET ASIDE PROCEEDINGS, IF DESIRED SO. IN THE RESULT , ITA NO.1262 1263(B)/2017 APPEAL S FILED BY ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. THE OTHER TWO PENALTY APPEALS ARE ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 - 11 - 2019. SD/ - S D / - (B.R.BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 - 11 - 2019 *AM ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 21 COPY OF THE ORDER FORWARDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5. DR 6. ITO (TDS) 7.GUARD FILE BY ORDER ASST.REGISTRA R ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 22 ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 23 ITA NOS.1262,1263(B)/2017 & 1899 & 1900(B)/2019 24 ITA NOS.1262 & 12263(B)/2017 AND ITA NOS.1899 & 1900(B)/2019 25