ESCORTS HEART INSITUTE & RESEARCH, Jaipur V. DCIT(TDS), Jaipur

ITA 363/JPR/2011

• Counselvise Citation: 36323114 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 23-12-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Keywords: Difference of opinion
• Section: 194C

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI H.M. MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER) I.T.A. NO. 363/JP/2011 ASSTT. YEAR- 2008-09 M/S ESCORTS HEART INSTITUTE &, DEPUTY COMMISSION ER OF RESEARCH CENTRE LTD. VRS. INCOME TAX (TDS), JLN MARG, MALVIYA NAGAR. JAIPUR JAIPUR. PAN NO. AAACE8731F (APPELLANT) (RESPONDENT) I.T.A. NO. 326/JP/2011 ASSTT. YEAR- 2008-09 DEPUTY COMMISSIONER OF M/S ESCORTS HEART INSTITU TE & INCOME TAX (TDS), RESEARCH CENTRE LTD. JAIPUR VRS. JLN MARG, MALVIYA NAGAR, JAIPUR. PAN NO. AAACE8731F (APPELLANT) (RESPONDENT) I.T.A. NO. 1123/JP/2011 ASSTT. YEAR- 2009-10 DEPUTY COMMISSIONER OF M/S ESCORTS HEART & SUPER INCOME TAX (TDS), SPECIALITY HOSPITAL LTD., JAIPUR VRS. JLN MARG, MALVIYA NAGAR, JAIPUR. PAN NO. AABCE6721G (APPELLANT) (RESPONDENT) ASSESSEE BY:- NONE DEPARTMENT BY:- SHRI A.K. KHANDELWAL, D.R. DATE OF HEARING : 16/12/2013 DATE OF PRONOUNCEMENT : 16/12/2013 2 O R D E R PER: N.K. SAINI, A.M. SINCE THERE WAS A DIFFERENCE OF OPINION BETWEEN TH E LEARNED MEMBERS, CONSTITUTING A DIVISION BENCH OF I.T.A.T., JAIPUR A ND THE MATTER WAS REFERRED TO THE THIRD MEMBER U/S 255(4) OF THE I.T. ACT, 1961 ( IN SHORT THE ACT) FOR HIS OPINION. THE LEARNED JUDICIAL MEMBER HAS PROPOSED T HE FOLLOWING QUESTIONS:- 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE PROVISIONS OF SECTION 194J ARE APPLICABLE ON THE PAYMENTS MADE TO BLOOD BANK? 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE PROVISIONS OF SECTION 192 OR SECTION 194J ARE APPLICABLE IN CA SE OF RETAINER DOCTORS? 3. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, ON THE MARKUP/PROFITS EARNED BY FORTIS HEALTH WORLD LTD. ( FHWL) ON SALE OF MEDICINES TO THE ASSESSEE IS A COMMISSION CHARGE ABLE TO TAX UNDER SECTION 194H OR IS A SALE ON WHICH PROVISIONS OF SECTION 194H ARE NOT APPLICABLE? 4. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, ON THE MARK UP/PROFITS THE PROVISIONS OF SECTION 194C CAN BE IN VOKED BY THE TRIBUNAL WHERE NEITHER THIS IS A CASE OF DEPARTMENT NOR OF THE ASSESSEE? 2. THE LD. A.M. PROPOSED THE FOLLOWING SEPARATE QUE STIONS: 1.1 WHETHER THE PAYMENTS TO THE BLOOD BANKS FOR CA RRYING OUT INVESTIGATION PROCEDURES, ARE, IN THE FACTS AND CIR CUMSTANCES OF THE CASE, MADE BY THE ASSESSEE-HOSPITAL OR BY ITS PATIE NTS? 3 1.2 WHETHER, WHILE DECIDING AN ISSUE UNDER APPEAL, THE TRIBUNAL REQUIRED TO APPLY ITS INDEPENDENT MIND THEREON, WIT HOUT BEING INFLUENCED BY THE DECISION BY THE FIRST APPELLATE A UTHORITY FOR A SUBSEQUENT YEAR, PARTICULARLY WHEN THE SAME WAS NOT PRESSED DURING HEARING AND, ACCORDINGLY, THE PARTIES NOT HEARD THE REON? 2. I AM IN AGREEMENT WITH THE QUESTION NO. 2 AS PRO POSED BY MY LD. BROTHER, JM. 3.1 WHETHER, CAN, ON THE ADMITTED SET OF FACTS BROU GHT ON RECORD BY THE PARTIES, THE INFERENTIAL FINDINGS/S BY THE APPELLAT E TRIBUNAL DIFFER FROM THAT OF EITHER PARTY BEFORE IT, OR IS IT NECES SARILY MATCH THEREWITH? FURTHER, IS NOT THE TRIBUNAL DUTY BOUND TO, IN DECIDING AN ISSUE BEFORE IT, APPLY THE LAW AS APPLICABLE TO THE FACTS FOUND BY IT, INCLUDING SUCH INFERENTIAL FINDING/S? 3.2 WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE SUPPLY OF MEDICINES BY FORTIS HEALTH WORLD LTD. (FHWL) TO THE ASSESSEE- COMPANY FOR ITS IPD PHARMACY, CONSTITUTES AN INDEPE NDENT BUSINESS BEING CARRIED ON BY FHWL, OR IS THE SAID SUPPLY ONL Y THE RESULT OF THE WORK CARRIED OUT BY ITS RELEVANT MANPOWER, WHOS E SERVICES STAND ALREADY CONTRACTED TO THE ASSESSEE-COMPANY AN D SUBJECT TO TAX DEDUCTION U/S 194C OF THE ACT? 3. THE HON'BLE PRESIDENT, I.T.A.T. NOMINATED SHRI G.D. AGRAWAL, HON'BLE VICE PRESIDENT, DELHI ZONE, AS THIRD MEMBER . THERE WAS ALSO DIFFERENCE OF OPINION AMONGST THE LEARNED MEMBERS O N ACCOUNT OF FRAMING THE QUESTIONS TO BE REFERRED TO THE THIRD MEMBER. T HE HON'BLE THIRD MEMBER OPINED THAT THERE WAS NO DIFFERENCE OF OPINION WITH REGARD TO QUESTION NO. 2 WHILE QUESTIONS NO. 1,3, AND 4 PROPOSED BY THE LD. J.M. BRING THE POINT OF DIFFERENCE IN A PRCISE AND SIMPLE MANNER. HE, THER EFORE, ANSWERED THE QUESTIONS PROPOSED BY THE LD. J.M. TO FULFILL THE O BJECT OF SECTION 255(4) OF 4 THE ACT AND VIDE HIS ORDER DATED 13/11/2013 HAS CON CURRED WITH THE FINDINGS OF THE LD. J.M. FOR QUESTION NO. 1, RELATING TO TH E APPLICATION OF SECTION 194J OF THE ACT ON THE PAYMENTS MADE TO BLOOD BANK AND H ELD THAT WHEN THE ASSESSEE DID NOT MAKE ANY PAYMENT TO THE BLOOD BANK , THE QUESTION OF AFFIXING THE LIABILITY U/S 194J UPON THE ASSESSEE, DOES NOT ARISE. 4. AS REGARDS TO QUESTION NO. 2 RELATING TO APPLIC ATION OF PROVISIONS OF SECTION 192 OR SECTION 194J OF THE ACT ON THE PAYME NTS MADE TO RETAINER DOCTORS. THE HON'BLE THIRD MEMBER AGREED WITH THE V IEW TAKEN BY THE LD. A.M. AND HELD THAT THE FIXED MONTHLY REMUNERATION P AYABLE TO THE RETAINER DOCTORS IS IN THE NATURE OF SALARY AND LIABLE FOR D EDUCTION OF TAX U/S 192 OF THE ACT. 5. AS REGARDS TO QUESTIONS NO. 3 AND 4 RELATING TO THE APPLICATION OF SECTION 194H ON SALE OF MEDICINES TO THE ASSESSEE, THE HON'BLE THIRD MEMBER CONCURRED WITH THE FINDINGS OF THE LD. J.M. AND HELD THAT THE STAND OF THE REVENUE THAT THE MARK-UP IS THE COMMISSION C ANNOT BE ACCEPTED AND THE VIEW OF THE LD. A.M. THAT THE MARK-UP IS A CONS IDERATION FOR PROVIDING THE MAN POWER IS ALSO BASED UPON THE PRESUMPTION. 6. THEREFORE, IN ACCORDANCE WITH MAJORITY VIEW, TH E APPEAL OF THE ASSESSEE IN I.T.A. NO. 363/JP/2011 FOR THE ASSESSME NT YEAR 2008-09 IS PARTLY 5 ALLOWED AND THE APPEALS OF THE DEPARTMENT IN I.T.A. NO. 326 & 1123/JP/2011 FOR THE ASSESSMENT YEARS 2008-09 & 2009-10 RESPECTI VELY ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 16/12/2013. ) SD/- SD/- (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 16/12/2013 * RANJAN COPY FORWARDED TO :- 1. APPELLANTS - M/S ESCORTS HEART INSTITUTE & RESEA RCH CENTRE LTD., JAIPUR. 2. THE DCIT (TDS), JAIPUR 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 363, 326 AND 1123/JP/2011) BY ORDER, AR ITAT JAIPUR.