ITO, Bangalore V. M/s Teleradiology Solutions Pvt. Ltd., Bangalore

ITA 704/BANG/2014

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8689 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 22-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NO.704/BANG/2014 ASSESSMENT YEAR : 2012-13 THE INCOME TAX OFFICER (TDS), WARD 18(2), BANGALORE. VS. M/S. TELERADIOLOGY SOLUTIONS PVT. LTD., NO.7 G, OPP. GRAPHITE INDIA, VISHWESHWARAIAH INDL. AREA, WHITEFIELD, BANGALORE 560 048. PAN: AABCT 8183H APPELLANT RESPONDENT C.O. NO.100/BANG/2014 [IN ITA NO.704/BANG/2014] ASSESSMENT YEAR : 2012-13 M/S. TELERADIOLOGY SOLUTIONS PVT. LTD., BANGALORE 560 048. PAN: AABCT 8183H VS. THE INCOME TAX OFFICER (TDS), WARD 18(2), BANGALORE. CROSS OBJECTOR RESPONDENT APPELLANT BY : DR. P.K. SRIHARI, ADDL. CIT(DR) RESPONDENT BY : SHRI SUDHEENDRA, C.A. DATE OF HEARING : 17.03.2015 DATE OF PRONOUNCEMENT : 27.03.2015 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER ITA NO.704/B/14 IS AN APPEAL BY THE REVENUE AGAIN ST THE COMMON ORDER DATED 21.10.2013 OF THE CIT(APPEALS), MYSORE RELATING TO ITA NO.704/BANG/2014 & CO NO.100/B/2014 PAGE 2 OF 9 ASSESSMENT YEAR 2012-13, ALLOWING THE APPEAL OF THE ASSESSEE AGAINST THE ORDER DATED 12.2.2013 OF THE ASSESSING OFFICER PASS ED U/S. 201(1) & 201(1A) OF THE ACT. THE ASSESSEE HAS FILED CROSS OBJECTION AGAINST THE VERY SAME ORDER OF THE CIT(APPEALS). 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINE SS OF PROVIDING TELERADIOLOGY SERVICES TO HOSPITALS AND IMAGING & D IAGNOSTIC CENTRES AROUND THE GLOBE. IN ORDER TO RUN ITS BUSINESS, THE ASSES SEE ENGAGED SERVICES OF RADIOLOGISTS I.E., DOCTORS WITH SKILL SETS REQUIRED FOR MEDICAL CONSULTATION TO THE CLIENTS OF THE ASSESSEE. THE SERVICES OF DOCTO RS ARE AVAILED UNDER A CONTRACT FOR SERVICES AFTER TESTING THEIR MEDICAL S KILLS. THE DOCTORS ARE REQUIRED TO PROVIDE SERVICES ROUND THE CLOCK AND TH ROUGHOUT THE YEAR. THE ASSESSEE ACCORDINGLY FIXES TIME SCHEDULE FOR VARIOU S DOCTORS TO ENSURE THEIR AVAILABILITY AT ANY POINT OF TIME. THE DOCTO RS, ACCORDING TO ASSESSEE, PROVIDE SERVICES INDEPENDENTLY BY EXERCISING THEIR SKILL SETS, EXPERIENCE AND EXPERTISE. THE MANNER IN WHICH THEY STUDY X-RA Y, CT SCANS, ETC., AND WRITE THEIR ANALYSIS AND FINDINGS IS NOT CONTROLLED BY THE ASSESSEE. THESE ARE MATTERS IN WHICH THE INDIVIDUAL SKILL AND EXPER IENCE AND KNOWLEDGE OF THE PROFESSIONAL IS ALLOWED TO BE EXERCISED. BASED ON THE ABOVE FEATURES, THE STAND OF THE ASSESSEE WAS THAT THE DOCTORS ARE NOT EMPLOYEES OF ASSESSEE AND THAT THERE IS NO RELATIONSHIP OF A MAS TER AND SERVANT BETWEEN THE ASSESSEE AND THE DOCTORS, THEREFORE, THE PROVIS IONS OF SECTION 192 OF THE ACT ARE NOT ATTRACTED AND ASSESSEE IS NOT LIABL E TO DEDUCT TAX AT SOURCE ON PAYMENTS MADE TO DOCTORS CONSIDERING THE PAYMENT AS SALARY. IT IS ITA NO.704/BANG/2014 & CO NO.100/B/2014 PAGE 3 OF 9 NOT IN DISPUTE BEFORE US THAT THE ASSESSEE HAD DEDU CTED TAX AT SOURCE U/S.194J OF THE ACT ON THE PAYMENT MADE TO THE DOC TORS TREATING THE PAYMENT AS FEES FOR PROFESSIONAL OR TECHNICAL SERV ICES. 3. ACCORDING TO THE REVENUE, THE PAYMENT MADE BY TH E ASSESSEE TO DOCTORS WAS IN THE NATURE OF SALARY AND THEREFORE THE ASSESSEE OUGHT TO HAVE DEDUCTED TAX AT A HIGHER RATE THAN WHAT THE AS SESSEE HAD DEDUCTED TREATING THE PAYMENT AS FEES FOR PROFESSIONAL OR T ECHNICAL SERVICES RENDERED AND THEREFORE THERE WAS SHORT DEDUCTION OF TAX AT SOURCE BY THE ASSESSEE. 4. THE CIT(APPEALS) IN THE IMPUGNED ORDER HAS FOUND THAT THE FACTS OF THE ASSESSEES CASE WERE IDENTICAL TO THE FACTS OF THE CASE WHICH WAS SUBJECT MATTER OF DECISION BY THE BANGALORE BENCH O F THE TRIBUNAL IN THE CASE OF ITO, TDS V. M/S. ELBIT DIAGNOSTICS LTD., ITA NOS.50 0 TO 504/BANG/2008, ORDER DATED 26.11.2008 . IN THE AFORESAID DECISION, THE TRIBUNAL TOOK THE VIEW THAT THE PAYMENT MADE TO DOC TORS WERE NOT IN THE NATURE OF FEES FOR TECHNICAL SERVICES. THE CIT(A) ALSO FOUND THAT THE DECISION OF THE TRIBUNAL HAS BEEN CONFIRMED BY THE HONBLE HIGH COURT OF KARNATAKA IN ITA NOS.168/2009 & 170/2009 BY ITS JUDGMENT DATED 4.2.2010 . THE CIT(A) THEREFORE HELD THAT THE ASSESSEE COUL D NOT BE TREATED AS AN ASSESSEE IN DEFAULT AND CANCELLED THE ORDER P ASSED U/S. 201(1) & 201(1A) OF THE ACT. ITA NO.704/BANG/2014 & CO NO.100/B/2014 PAGE 4 OF 9 5. THE FACTS OF THE ASSESSEES CASE AND THE FACTS A S IT PREVAILED IN THE CASE OF ELBIT DIAGNOSTICS LTD. (SUPRA) HAVE BEEN TABULATED IN PARA 5.1 OF THE CIT(A)S ORDER. IN THE PRESENT APPEAL BY THE R EVENUE, THOUGH IN GROUND NO.5, THE REVENUE HAS STATED THAT THE TERMS & CONDI TIONS OF EMPLOYMENT IN THE CASE OF ASSESSEE AND THE CASE DECIDED BY THE TR IBUNAL IN ELBIT DIAGNOSTICS LTD. (SUPRA) ARE DIFFERENT, THE POINTS OF DIFFERENCE COULD NOT BE POINTED OUT BEFORE US. THEREFORE FACTS OF THE CAS E OF THE ASSESSEE AND THE CASE DECIDED BY THE TRIBUNAL IN ELBIT DIAGNOSTICS LTD. (SUPRA) , IN OUR VIEW, ARE IDENTICAL, AS CAN BE SEEN FROM A PERUSAL OF THE CHART GIVEN IN PARA 5.1 OF THE IMPUGNED ORDER OF CIT(APPEALS). IN OUR VIEW , THE ISSUE IS SQUARELY COVERED BY THE DECISION RENDERED BY THIS TRIBUNAL I N THE CASE OF ELBIT DIAGNOSTICS LTD. (SUPRA) . 6. IN THE CASE OF ELBIT DIAGNOSTICS LTD. (SUPRA) , THIS TRIBUNAL TOOK THE FOLLOWING VIEW:- 6. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE IS A COMPANY E NGAGED IN THE BUSINESS OF MEDICAL DIAGNOSIS UNDER NAME AND STYLE M/S ELBIT MEDICAL DIAGNOSTICS LTD. THE ASSESSEE COMPANY ENGA GED SKILLED PEOPLE AS RADIOLOGISTS, CONSULTANTS, PHYSICIANS, NU CLEAR MEDICINES ETC., THE COMPANY REQUIRES THE SERVICES O F QUALIFIED DOCTORS IN THESE FIELDS OF RADIOLOGY, PATHOLOGY AND CARDIOLOGY, NUCLEAR MEDICINE ETC. WHO CAN RENDER THE SERVICE OF INTERPRETING THE DATA AND RENDERING THE REPORT OF THE DIAGNOSTIC TESTS CARRIED OUT BY THE ASSESSEE. THE GIST OF THE TERMS AND COND ITIONS IN THE CONTRACT ENTERED ARE AS UNDER. A) THE CONTRACTUAL APPOINTMENT WILL BE FOR A PERIO D OF 3 YEARS FROM (DATE OF ISSUE OF THE CONTRACT TO EACH IN-HOUS E DOCTOR) ITA NO.704/BANG/2014 & CO NO.100/B/2014 PAGE 5 OF 9 B) THE CONSOLIDATED GROSS PAYMENT TOWARDS YOUR CON SULTATION FEE WILL BE RS. ./PER MONTH SUBJECT TO THE APPLICABL E TFDS C) DURING THE PERIOD OF YOUR CONTRACT WITH THE COM PANY, YOU WILL BE ENTITLED TO INCREMENTS BASED UPON YOUR PERFORMAN CE. D) YOU ARE FREE TO RENDER YOUR SERVICES TO OTHER CO NCERN OR INDIVIDUALS AT SUCH TIMES THAT DO NOT CONFLICT, WIT H THE TERMS OF THE CONTRACT WITH THE COMPANY. E) YOU WILL BE ENTITLED TO 20 DAYS OF LEAVE PER YE AR F) ON THE CONCLUSION OF THE ABOVE MENTIONED PERIOD OF 3 YEARS, THIS CONTRACT SHALL BE SUBJECT TO FURTHER EXTENSION ON SUCH MUTUALLY AGREED TERMS AND CONDITIONS FOR SUCH PERIO D AS MIGHT BE AGREED UPON. G) THIS APPOINTMENT IS A CONTRACTUAL APPOINTMENT AN D YOU WILL REPORT TO THE CHIEF EXECUTIVE OFFICER OF THE CENTRE OR SUCH DESIGNATED OFFICIAL. H) THIS CONTRACT CAN BE DETERMINED BY EITHER SIDE S UBJECT O SERVING THREE MONTHS NOTICE BY ON PARTY TO ANOTHER. I) YOUR SERVICES CAN BE DEPUTED TO OTHER CENTRE OF ELBIT AS AND WHEN REQUIRED. YOU WILL TAKE SPECIAL PERMISSION FRO M THE MANAGEMENT IN CASE YOU ARE PRESENTING ANY PAPERS IN CONFERENCES AND OTHER SCIENTIFIC PUBLICATIONS. 7. DR.VINOD P JOSEPHS APPOINTMENT ORDER REVEALS T HAT THE APPOINTMENT IS ONLY CONTRACTUAL FOR A PERIOD OF THR EE YEARS. IT ALSO MENTIONS THE RELATIONSHIP BETWEEN THE COMPANY AND T HE DOCTOR ARE GOVERNED BY THE TERMS OF CONTRACT ENTERED INTO BETWEEN THE ASSESSEE COMPANY AND SKILLED PERSONS INCLUDING DOCT ORS AS INDICATED ABOVE. THE CONSULTANCY FEES IS FIXED AT R S.40,000/- PER MONTH SUBJECT TO DEDUCTION OF TAX AT SOURCE. THE AP PLICANT WILL NOT BE ENTITLED TO STATUTORY BENEFITS LIKE PF, ESI, GRATUITY, BONUS, AND LEAVE ENCASHMENT ETC., THE DOCTOR IS FREE TO RE NDER SERVICES TO OTHER CONCERNS AT SUCH TIME WHICH IS NOT IN CONFLIC T WITH THE TERMS OF CONTRACT, 20 DAYS LEAVE ALLOWED PER YEAR. BASICA LLY, THE ISSUE IS WITH REGARDS TO DEDUCTION OF TAX AT SOURCE IN RESPE CT OF ELEVEN DOCTORS IN-HOUSE DOCTORS WHO ARE APPOINTED ON CONTR ACTUAL BASIS ON CONSOLIDATED GROSS PAYMENT PER MONTH AS STATED A BOVE. WHETHER THEY SHOULD BE TREATED AS EMPLOYEE AND THER E EXISTS ITA NO.704/BANG/2014 & CO NO.100/B/2014 PAGE 6 OF 9 EMPLOYEEEMPLOYER RELATIONSHIP TO ATTRACT DEDUCTION U/S 192 ON THE PAYMENTS MADE TO THEM AND TREATING THE SAME AS SALARY. THE FUNDAMENTAL ASPECT FOR DECIDING THE EMPLOYEEEMPLOY ER RELATIONSHIP DEPENDS ON FACT, WHETHER THERE EXIST T HE CONTRACT OF SERVICE OR CONTRACT FOR SERVICE. IN CONTRACT FOR SE RVICE THE MASTER CAN ORDER ONLY WHAT IS TO HE DONE, WHEREAS IN CONTR ACT OF SERVICE MASTER DECIDES NOT ONLY WHAT HAS TO BE DONE BUT ALS O HOW IT HAS TO BE DONE. THE FOLLOWING VARIABLES NOT ONLY DECIDE EMPLOYEE EMPLOYER RELATIONSHIP BUT THESE ARE ALSO THE MAIN I NGREDIENTS FOR CONTRACT OF SERVICE AND MASTER SERVANT RELATIONSHIP . THE ABOVE MENTIONED SKILLED PERSONS ARE ENGAGED BY THE ASSESS EE COMPANY, BUT THEY CONDUCT THE SKILLED WORK AT THE STRENGTH O F THEIR SPECIALISED KNOWLEDGE ON SUBJECT. THE ASSESSEE COMP ANY SIMPLY FOLLOW THE CONCLUSION ARRIVED BY THEM ON THE BASIS OF DATA/MATERIAL BROUGHT TO THEIR KNOWLEDGE. IT IS DIF FICULT TO LAY DOWN ANY ONE TEST TO DISTINGUISH THE RELATIONSHIP O F MASTER SERVANT FROM THAT OF AN EMPLOYER AND INDEPENDENT CO NTRACTOR. IN MANY CASES, THE TEST LAID DOWN IS THAT IN CASE OF M ASTER SERVANT RELATION, MASTER CAN ORDER OR REQUIRE WHAT IS TO BE DONE AND HOW IT HAS TO BE DONE. BUT INCASE OF INDEPENDENT CONTRACT OR AN EMPLOYER CAN ONLY SUGGEST THAT WHAT IS TO BE DONE B UT NOT HOW IT SHALL BE DONE. HONBLE SUPREME COURT IN CASE OF PIY ARE LAL ADISHWAR LAL VS CIT(1960) REPORTED IN 40 ITR 17(SC) RELYING ON DHARANGADHARA VS STATE OF SAURASHTRA (1957) SCR 152 HELD THAT IN ALL CASES THE CORRECT METHOD OF APPROACH IS WHETHER HAVING REGARD TO THE NATURE OF WORK THERE WAS DUE CONTROL AND SUPERVISION BY THE EMPLOYER. THE RECEIPT OF REMUNER ATION FOR HOLDING AN OFFICE DOES NOT NECESSARILY GIVES RISE T O RELATIONSHIP OF MASTER AND SERVANT BETWEEN THE HOLDER OF OFFICE AND THE PERSON WHO PAYS THE REMUNERATION. WHETHER A PERSON IS A SE RVANT OR AN AGENT WOULD BE DETERMINED BY THE DUTIES OF EMPLOYEE , THE NATURE OF BUSINESS, TERMS OF HIS EMPLOYMENT/ENGAGEMENT AND KIND OF SUPERVISORY CONTROL OVER HIS WORK. A PERSON WHO IS ENGAGED TO MANAGE THE BUSINESS MAY BE SERVANT OR AGENT, ACCORD ING TO THE NATURE OF HIS SERVICE AND AUTHORITY OF HIS EMPLOYME NT. THE PROFESSION INVOLVES OCCUPATION REQUIRED PURELY INTE LLECTUAL OR MANUAL SKILL, AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS MOHANDAS (1966) 59 ITR 699(SC). THE PROFESSI ON IN GENERAL TERM INVOLVES THE IDEA OF AN OCCUPATION REQ UIRING EITHER PURELY INTELLECTUAL SKILL, OR IF ANY MATERIAL SKILL , AS IN PAINTING AND SCULPTURE OR SURGERY, CONTROLLED BY INTELLECTUAL SK ILL OF OPERATOR, AS DISTINGUISHED FROM AN OCCUPATION WHICH IS SUBSTA NTIALLY ITA NO.704/BANG/2014 & CO NO.100/B/2014 PAGE 7 OF 9 PRODUCTION OR SALE OR ARRANGEMENT FOR PRODUCTION OR SALE, OF COMMODITIES. A PROFESSION WILL IMPLY ANY VOCATION C ARRIED ON BY AN INDIVIDUAL OR GROUP OF INDIVIDUAL REQUIRING THE PREDOMINANTLY INTELLECTUAL SKILLS, DEPENDING ON INDIVIDUAL CHARAC TERISTICS OF PERSONS PURSUING THAT VOCATION, REQUIRING SPECIALIZ ED ADVANCE EDUCATION OR EXPERTISE. THE PROFESSIONAL SERVICE, WHICH ARE TERMED AS INDEPENDENT PERSONAL SERVICE IN THE PHR ASEOLOGY EMPLOYED IN TAX TREATIES ARE, HOWEVER, NOT DEFINED IN TEXT TREATIES OR EVEN OFFICIAL COMMENTARIES ON UN AND OED MODEL CONVENTIONS. THE MEANING OF THIS TERM IS ILLUSTRATE D BY SOME EXAMPLES OF TYPICAL LIBERAL PROFESSIONS, AND THIS E NUMERATION OF PROFESSIONS HAS ONLY AN EXPLANATORY CHARACTER. THE LAW LEXICON EDITED BY Y.V.CHANDRACHUD (1997 EDITION) DEFINES P ROFESSION INTER-ALIA AS INVOLVING THE IDEA OF AN OCCUPATION REQUIRING EITHER PURELY INTELLECTUAL SKILL OR, IF ANY, MANUAL SKILL, AS IN PAINTING AND SCULPTURE OR SURGERY, SKILL CONTROLLED BY INTELLECT UAL SKILL OF OPERATOR, AS DISTINGUISHED FROM OCCUPATION WHICH IS SUBSTANTIALLY THE PRODUCTION OR SALE OR ARRANGEMENT FOR THE PRODU CTION OR SALE OF COMMODITIES. BLACKS LAW DICTIONARY (5 TH EDITION) DEFINES PROFESSION AS A VOCATION OR OCCUPATION REQUIRING SP ECIAL, USUALLY ADVANCED, EDUCATION AND SKILL E.G. IN LAW AND MEDIC INE AND OBSERVES THAT THE LABOUR AND SKILL INVOLVED IN A PR OFESSION IS PREDOMINANTLY MENTAL OR INTELLECTUAL RATHER THAN PH YSICAL OR MANUAL; 8. THE SCHOOL OF THOUGHT, THUS EMERGING FROM THIS DELIBERATION IS THAT; BROADLY SPEAKING A PROFESSION WILL IMPLY ANY VOCATION CARRIED ON BY AN INDIVIDUAL, OR GROUP OF I NDIVIDUALS, REQUIRING PREDOMINANTLY INTELLECTUAL SKILL, DEPENDA NT ON INDIVIDUAL CHARACTERISTICS OF THE PERSON(S) PURSUIN G THAT VOCATION, REQUIRING SPECIALIZED AND ADVANCED EDUCATION OR EXP ERTISE. IN THE INSTANT CASE THE COMPANY IS RUNNING A DIAGNOSTIC CE NTRE. THE ENGAGEMENT AND NATURE OF WORK OF SPECIALIZED PERSON INCLUDING DOCTORS ARC NOT CONTROLLED BY THE ASSESSEE COMPANY. THEY ARE EVEN ALLOWED TO ENGAGE THEMSELVES IN PRIVATE PRACTI CE SUBJECT, TO NO CONFLICT WITH CONTRACTUAL ARRANGEMENT ENTERED BE TWEEN ASSESSEE AND THE ABOVE MENTIONED SPECIALIZED SKILLE D PERSONS. THEY PURELY RENDER SKILLED SERVICES TO ASSESSEE ON THE .BASIS OF CONTRACT ENTERED BY THEM WITH THE ASSESSEE COMPANY. THEY REACH TO CERTAIN INTELLECTUAL CONCLUSION ON THE BASIS OF ANALYSIS OF DATA PUT FORWARD BEFORE THEM. DURING THE ANALYSIS AND IN TELLECTUAL CONCLUSION ARRIVED BY THEM IS BASED ON THEIR SPECIA LIZED SKILL. THE ITA NO.704/BANG/2014 & CO NO.100/B/2014 PAGE 8 OF 9 ASSESSEE COMPANY HAS NO INTERFERENCE IN THEIR DIAGN OSTICS ARRIVED AT. THESE SPECIALISTS ARE GOVERNED BY THEIR SPECIAL IZED KNOWLEDGE IN THEIR FIELD. THE PAYMENT MADE, IN LIEU OF THEIR WORK, ARE NOTHING BUT AS GOOD AS CONSULTATION FEES. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE DOCTORS IN QUESTION ARE GIVEN STATUTORY BENEFITS. CERTAIN BENEFITS SUCH AS LEAVE, MATERNITY LEAVE ARE GRANTED TO ENSURE THE SMOOTH FUNCTIONING OF THE INS TITUTION. AS STATED ABOVE, ALL THE ELEVEN DOCTORS ARC AT LIBERTY TO ENGAGE THEMSELVES IN OTHER ASSIGNMENTS, WHICH ARE NOT IN C ONFLICT WITH THE CONTRACTUAL OBLIGATION ENTERED BY THEM WITH THE ASSESSEE. THIS SHOWS THAT THERE IS NO CONTROL OF ASSESSEE OVER DOC TORS/SPECIALIST MENTIONED ABOVE, WITH REGARDS TO SPECIALIZED SERVIC E RENDERED BY THEM TO ASSESSEE AT THE STRENGTH OF SPECIALIZED KNO WLEDGE. THIS IS ONLY A CONTRACT FOR RENDERING THE SPECIALIZED SERVI CE AND THERE IS NO EMPLOYEREMPLOYEE RELATIONSHIP. THE NATURE OF SE RVICE OF DOCTORS ARE DIFFERENT FROM OTHER EMPLOYEES BECAUSE, THE METHOD OF WORK OF DOCTORS/SPECIALISTS ARE NOT CONTROLLED B Y THE ASSESSEE IN ANY WAY. THE CONTROL OF METHOD OF ACTIVITY IS TH E ESSENCE OF EMPLOYMENT OF WORK OR EMPLOYMENT FOR WORK. THE RATI O OF ST.STEPHENS HOSPITAL VS DC1T, ITAT F BENCH, DELH I REPORTED IN (2006) 6 SOT 60(DEL.) IS NOT APPLICABLE TO THE F ACTS OF THE ASSESSEES CASE, BECAUSE IN THE AFORESAID CASE THE ISSUE IS WITH REGARD TO FULL TIME DOCTORS OF THE HOSPITAL WHILE I N CASE BEFORE US EXPERTS/DOCTOR ARC ENGAGED IN ONLY TECHNICAL SERVIC ES AS DISCUSSED ABOVE. THESE DOCTORS/EXPERTS ARE AT LIBERTY TO DO T HE WORKS OTHER THAN THE ASSESSEES CONTRACTUAL ENGAGEMENTS BUT WIT HOUT CONTRADICTING THE TERMS AND CONDITIONS OF CONTRACT ENTERED BETWEEN THE ASSESSEE COMPANY AND THE SAID DOCTORS/S PECIALISTS AS MENTIONED ABOVE. IN VIEW OF THE ABOVE, THERE IS NO EMPLOYER EMPLOYEE RELATIONSHIP BETWEEN THE ASSESSEE AND ELEV EN DOCTORS DISCUSSED ABOVE. SO, THE PROVISION OF TDS U/S 192 A ND INTEREST U/S 201 AND 201(IA) OF IT ACT IS NOT ATTRACTED. ACC ORDINGLY, THE APPEAL FILED BY THE REVENUE ARE DISMISSED. 7. CONSIDERING THE SIMILARITY OF FACTS OF THE PRESE NT CASE AND THE FACTS OF THE CASE DECIDED BY THE TRIBUNAL IN THE CASE OF ELBIT DIAGNOSTICS LTD. ( SUPRA ), WE ARE OF THE VIEW THAT THE ORDER OF CIT(APPEALS ) DOES NOT CALL FOR ANY INTERFERENCE. ITA NO.704/BANG/2014 & CO NO.100/B/2014 PAGE 9 OF 9 8. THE GROUNDS RAISED IN THE CO ARE WITH REGARD TO THE STAND OF THE ASSESSEE THAT THE RECIPIENTS OF PAYMENTS FROM THE A SSESSEE HAVE PAID TAXES ON SUCH PAYMENTS AND THEREFORE ASSESSEE COULD NOT BE TREATED AS ASSESSEE IN DEFAULT. SINCE THE APPEAL OF THE REVENU E IS BEING DISMISSED ON MERITS, WE ARE OF THE VIEW THAT NO ADJUDICATION OF THE CO IS NECESSARY AND THE SAME IS THEREFORE DISMISSED. 9. IN THE RESULT, THE APPEAL BY THE REVENUE AND CO BY THE ASSESSEE IS DISMISSED . PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF MARCH , 2015 . SD/- SD/- ( JASON P. BOAZ ) ( N.V. VASUDEVA N ) ACCOUNTANT MEMBER JUDICIAL MEMBE R BANGALORE, DATED, THE 27 TH MARCH , 2015 . /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR/ SENIOR PRIVATE SECRETARY ITAT, BANGALORE.