Nature of TDS Liability in Respect of Salaried Doctors, in- House & Visiting Consultants in a Nursing Home

Advocate Akhilesh Kumar Sah

Preface:

Chapter XVII of the Income-tax Act, 1961, herein referred to as the Act, incorporates provisions for collection and recovery of tax and Part B of this Chapter deals with the Tax Deduction at Source [TDS]. Tax has to be Deducted at Source in respect of different type of payments according to different sections in Part B of the Chapter XVII.

A Recent Appeal In Brief Before ITAT, Bangalore:

Recently, in the Hosmat Hospital (P.) Ltd. vs. ACIT [IT Appeal Nos. 572, 575, 576, 879, 880 & 881 (BANG.) of 2014, AYs 2011-12 TO 2013-14, decided on 11.08.2016], the assessee-company was engaged in the business of health-care. The TDS officer conducted survey operations on 25/02/2013 under the provisions of sec.133A of the Act with the intention of verifying TDS compliance by the assessee-company. During the course of such survey operations, it was found that the assessee-company is employing three categories of Doctors viz., salaried Doctors, in- house Consultants and Visiting Consultants. It was also found that the assessee-company has been deducting tax at source in respect of in-house Consultants and Visiting Consultants under the provisions of sec.194J of the Act. The TDS Officer also found agreements entered into by the assessee-company with the Consultant Doctors. The TDS officer, thereafter, noticing the clauses in agreements had come to conclusion that TDS was required to be deducted under section 192 of the Act.

The TDS Officer also found that the agreements entered into with salaried doctors by the assessee, also contained similar terms and conditions which governed the employment of consultant doctors. Therefore, he concluded that consultant doctors are also salaried employees of the assessee and thus held that the assessee-company was in default for not deducting tax at source under section 192 of the Act. The TDS officer also charged interest under the provisions of section 201(1A) of the Act apart from tax liability under section 201(1) of the Act. He, thus passed an order demanding the assessee-company to pay tax as under

Being aggrieved, an appeal was preferred before the CIT(A), who concluded that the consultant doctors were the employees of the assessee

Being aggrieved by the decision of the CIT(A) that remuneration paid to visiting doctors was liable for TDS only under sec.194J, the Revenue filed appeal before ITAT, Bangalore.

The learned members of the ITAT observed that to decide the relationship of employer and employee, it is to be examined whether the contract entered into between the parties is ‘contract for service’ or ‘contract of service’. Relying on the decision of the Hon’ble jurisdictional High Court in the case of CIT vs. Manipal Health System (P) Ltd. [2015] 375 ITR 509(Kar.) as well as of the Hon’ble Bombay High Court, in the case of CIT vs. Grant Medical Foundation (Ruby Hall Clinic) [2015] 375 ITR 49(Bom.), the learned members of the ITAT, Bangalore held that, in the instant case, since consultant doctors were paid fixed remuneration and the working conditions were under supervision and control of the hospital authorities, services were rendered by the doctors, in the nature of employee. Hence, payments were subject to TDS under section 192 of the Act.

Bottomline:

An agreement plays an important role in respect of TDS, however, a particular payment attracting TDS entails its own nature and, therefore, tax should be deducted according to the nature of payment specified by the particular section of the Act.

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