Income Tax Appellate Tribunal - Delhi
St. Stephen'S Hospital vs Deputy Commissioner Of Income Tax, ... on 21 October, 2005
Equivalent citations: [2006]6SOT60(DELHI)
ORDER
P.M. Jagtap, Accountant Member.
This appeal by the assessee is directed against the order of learned Commissioner (Appeals)-XXX, New Delhi dated 12-1-2004 whereby he upheld the order of the assessing officer passed under section 201 (1) treating the assessee as in default for short deduction of tax at source from the payments made to consultant doctors employed in the hospital.
2. The assessee in the present case is a trust which is running a hospital in New Delhi. During the course of verification of the TDS return filed by it for financial year 2001-02, it was noticed by the assessing officer that the assessee had deducted TDS at the rate of 5 per cent from the remuneration paid to the consultant doctors employed in the hospital treating the same as 'fees for professional services'. According to the assessing officer, the remuneration paid to the consultant doctors was chargeable to tax under the head Income from salary'and the same should have been subjected to TDS as per the provisions of section 192 and not as per section 194J as was done by the assessee. He, therefore, required the assessee to explain its stand in the matter. In reply filed vide its letter dated 24-4-2003, it was explained by the assessee that medical profession is covered in the category of profession even under the Income Tax Act and since remuneration paid to the consultant doctors comprised of share in the fees collected from the patients and some minimum amount agreed to be paid to them, their total remuneration was not fixed but was dependent on receipts from patients treated by them. It was also pointed out that the said consultant doctors were free to do private practice outside the hospital and non-practising allowance was not paid to them. It was further explained that the consultant doctors were being appointed as per the requirement of the hospital when their services were needed. It was, therefore, contended that there was no employer-employee relationship between the assessee and the consultant doctors and the remuneration paid to them was not in the nature of salary but was a professional fees paid towards consultancy services. The assessing officer, however, perused the appointment letters issued by the assessee to the consultant doctors and found the following points as emerging from the said appointment letters :
"1. The hospital itself has titled the remuneration paid to the consultant as 'salary' and the same is paid on monthly basis.
2. There is a clear mention in the appointment letter that the appointee shall abide by the existing service regulations.
3. There is also a clause which provides for the entitlement of various types of leaves to the appointees.
4. It also provides that the decision of the Director shall be final in all the matters."
3. Keeping in view the aforesaid points borne out from the appointment letters issued by the assessee to the consultant doctors, he inferred that the contract between the assessee and the consultant doctors was that of service and there existed the employer-employee relationship between them. Accordingly, he held that the assessee should have deducted tax at source from the payments made to the consultant doctors at the rates applicable in the case of salary and worked out the short deduction of tax in respect of such payments excluding the payments made to Dr. P.N. Seth and Dr. R.K. Sandhir who were found to have been paid only the share in the fees and no fix remuneration at Rs. 6,81,422 as per the details given in Annexure A to his order. He, therefore, treated the assessee to be in default for such short deduction of tax under section 201(1) and also charged interest under section 201(1 A).
4. Aggrieved by the order of the assessing officer passed under section 201(1)/201(1A), an appeal was preferred by the assessee before the learned Commissioner (Appeals) and it was submitted on its behalf before him that apart from full-time employee doctors numbering 178 on the pay roll of the hospital, there were also 20 consultants engaged by it for rendering consultancy services. The following basic features concerning full-time employee doctors and consultant doctors were brought to the notice of the learned Commissioner (Appeals) by the assessee :-
"An employee doctor is entitled to the scale of pay appropriate to his category with increments as provided for in the scale, whereas in the case of the consultant, he is not entitled to any particular grade of pay or increments.
The appointment of an employee doctor is made by due process of selection and he is fitted in the scale of pay appropriate to his qualifications and experience. He cannot bargain for special benefits. However, a consultant is engaged depending upon his standing in his particular field of speciality. The amount payable to him is negotiated in advance and settled. He could ask for a higher amount than that paid to a full-time employee of the Hospital.
While it is the Hospital's policy to engage professionals as far as possible as full-time employees, because of the situation prevailing in different fields of specialization it is not always that a suitable full-time employee can be found and if found, is willing to work as a full-time employee.
The engagement of consultants is not peculiar to St. Stephen's Hospital. It is widely prevalent. A few other hospitals that engage consultants are Sir Ganga Ram Hospital, Moolchand Hospital and Apollo Hospital.'
5. Further, a tabular statement was also furnished by the assessee before the learned Commissioner (Appeals) to point out the distinction between a full-time employee doctor and consultant doctor as under:
Full-time employee doctor Consultant doctor Entitled to pay in the appropriate Not entitled to any pay.
scale at a level determined by the Monthly fees or retainer is selection committee. determined on the basis of negotiation.
Entitled to annual increments as per. Not entitled to annual increments.
scale of pay.
Prohibited from doing private practice. Is free to do private practice.
Is paid non-practising allowance. "Not eligible for payment of non-practising allowance.
Is entitled to contribute to PF. "Not entitled to contribute to PR Eligible for gratuity and pension. "Not eligible for gratuity or pension.
The retirement age is 60. "There is no retirement age. The engagement is generally for a period of one or two years at a time.
Eligible for dearness allowance as. "Not eligible for dearness allowance.
determined from time to time.
Eligible for leave travel assistance. "Not eligible for leave travel assistance.
Master-servant relationship subsists. "Is not a servant of the Hospital.
between hospital and doctor.
6. On the basis of the aforesaid distinctive features concerning the full time employee doctors and consultant doctors, the following points of contention were raised on behalf of the assessee before the learned Commissioner (Appeals):-
"(i) The facts stated in above paras show that consultants were not employees of the Hospital. There was no master-servant relationship between the Hospital and the consultants.
(it) The Deputy Commissioner of Income-Tax erred in concluding that consultants were employees of the Hospital on the sole ground that the term 'salary' was used in the letter engaging the services of consultants.
(iii) The appellant contended that the dictum that there is no equity about a tax has relevance when the matter relates to giving effect to the provisions of tax laws. The dictum would not, however, be attracted when the question before the court is the construction of an agreement and finding out the intention of the parties thereto as manifested by its terms CIT v. Nawab Mir Barkat Ali Khan Bahadur (1974) 97 ITR 246 (SC).
(iv) The interpretation of a term should be such as to be consistent with the things or objects that are included within it. In other words, the meaning of the expression cannot be different for different objects included in the expression - Petron Engg. Construction (P.) Ltd. v. CBDT (1989) 175 ITR 523 (SC).
7. The above submissions made on behalf of the assessee, however, did not find favour with the learned Commissioner (Appeals) and he proceeded to uphold the order of the assessing officer treating the assessee as in default for the short deduction of tax from the remuneration paid to consultant doctors for the following reasons given in paragraph No.7 of his impugned order:-
'7 I have considered the matter carefully after perusing the impugned order under section 201(1)/201(1A), the submissions tendered on behalf of the appellant and the cases relied upon. I am, however, unable to persuade myself to agree to the point of view of the appellant when the letters of appointment of various employees and consultants are gone through. It is not just the mention of the word 'salary' that has led the assessing officer to conclude that the consultants are also employees. On the contrary, it is the entire language and the context thereof that was weighed with him before holding that the consultants are also employees and tax should have been deducted at source by the appellant accordingly. The letters issued by the appellant carry sufficient directions suggesting the manner in which the consultants should carry out the work assigned to them. The letters make it palpably clear that the appellant is exercising sufficient control over the consultants as a result of which employer-employee relationship is very much manifest. In this regard reliance is placed on the jurisdictional High Court decision in the case of C.S. Mathur v. CBDT (1998) 99 Taxman 142 (Delhi) wherein, it was held that the expressions 'employee' and 'employer' cover cases of consultant and technician also. The appellant's exercise of drawing distinctions between various groups of persons working for it only suggests that different categories of employees exist and so long as all categories stand the test of employer-employee relationship as gathered from the letters of appointment, it can be safely assumed that whatever name one may give them, they do not cease to be the employees. As regards the argument that consultants in other hospitals are not treated as employees, I am afraid to take cognizance of the same in the absence of the terms and conditions of employment or, should we say, consultancy existing there. Eventually, I treat the appellant as an assessee in default as done by the assessing officer."
Aggrieved by the aforesaid order of the learned Commissioner (Appeals), the assessee is in appeal before the Tribunal.
8. The learned counsel for the assessee at the outset took us through the impugned order of the learned Commissioner (Appeals) to point out the facts of the case as well as the issue precisely involved for consideration of the Tribunal. He also invited our attention to the specific features brought to the notice of the learned Commissioner (Appeals) by the assessee to bring out the distinction concerning the full-time doctors employed by it and the consultant doctors appointed by it. He submitted that the medical hospital run by the assessee was engaged in the treatment of patients on payment basis and for its administration and management, the assessee had employed its own staff including a number of salaried doctors and had also appointed some consultant doctors for rendering the specialized services to the patients. He submitted that in addition to the fixed amount agreed to be paid to these consultant doctors, some fixed share of receipts from patients treated by them was also being paid to them. The said consultant doctors were allowed to do private practice outside the hospital and no non-practising allowance was being paid to them. According to him, the said doctors were required to come to the hospital for attending to the patients for a fixed period of time and the assessee had no control over their activities including medical practice beyond such fixed hours. He contended that the remuneration paid to them thus was not in the nature of salary and the arrangement being for rendering the professional services by them to the assessee's hospital, the same was in the nature of professional fees paid to them for such services. He also contended that a similar stand taken by the assessee was accepted by the department in earlier as well as in subsequent years and, therefore, there was no reason to take a different stand in the year under consideration in violation of rule of consistency as held by Hon'ble Delhi High Court in the case of CIT v. A.R.J. Security Printers (2003) 264 ITR 276. He also submitted that in the individual assessments of the concerned consultant doctors, the department had accepted the remuneration received from the assessee declared as ' professional income' and it was, therefore, not permissible for the department to take a different view about the same income in the assessee's case. He invited our attention to the appointment letter issued by the assessee to the employee doctor (copy placed at page No. 16 of his paper book) as well as to the consultant doctor (copy placed at page 20 of his paper book) to further explain the distinction between doctors who are regularly employed in the hospital by the assessee and the consultant doctors appointed for rendering the professional services. He contended that the relation between the assessee and the consultant doctors is required to be ascertained from the intention of both the parties and such intention has to be gathered from how both the sides have acted upon the arrangement between them and not by interpreting strictly the contract or appointment letter. In support of this contention, he relied on the decisions in the case of Sri Nilkantha Narayan Singh v. CIT (1951) 20 ITR 8 (Pat.) and in the case of CIT v. Bhojraj Harichand (1946) 14 ITR 277 (Lahore). He submitted that the remuneration paid to the consultant doctors was debited by the assessee under the head 'Professional fees' and even the concerned consultant doctors had declared the said income in their income-tax returns under the head 'Income from profession'. He contended that both the sides thus had acted upon the arrangement between them as a professional assignment and there was no intention to have an employer-employee relationship. He relied on the decision of Hon'ble Calcutta High Court in the case of Income Tax Officer v. Calcutta Medical Research (1999) 107 Taxman 250 (Mag.) wherein it was held that payment made to the visiting doctors was not salary and the assessee was not liable to deduct tax at source from the payment of the said commission. He also cited the decision of Bombay Bench of ITAT in the case of Dr. Shanti Sarup Jain v. First Income Tax Officer (1987) 21 ITD 494 (Bom) wherein it was held that when both the parties were not treating themselves as employer and employee, there was no justification in determining their relationship as that of employer and employee merely on the basis of word 'salary' used in the appointment letter. He also submitted that engaging the consultant doctors for providing professional services is a normal practice followed by the several hospitals in Delhi such as Sir Ganga Ram Hospital, Mool, Chand Hospital, Apollo Hospital, etc., and the remuneration paid to such consultant doctors is always treated as professional fees and not salary. He contended that the tax deducted by the assessee from the remuneration paid to the consultant doctors treating the same as professional income, thus, was in accordance with law and there was no case of any short deduction of tax as attempted to be made out by the authorities below.
9. The learned departmental Representative on the other hand, submitted that the vital question which requires consideration of the Tribunal in the present case is about the exact relationship between the assessee and the consultant doctors and if such relationship is found to be that of employer-employee, it would follow that the payments made to them in whatever form are chargeable to tax under the head 'Income from salary' on which tax was liable to be deducted as per the provisions of section 192. He submitted that no doubt there was a distinction between the doctors employed on full-time basis and the doctors employed on part-time basis. However, according to him, the fact remains to be seen is that both the full-time as well as part-time doctors were employees of the assessee and only their category was different as per the service rules. He invited our attention to a copy of the appointment letter issued to one such consultant doctor Prof. Vinod Kumar placed at page 73 of the assessee's paper book and pointed out that the assessee had agreed to pay a consolidated salary of Rs. 18,000 per month to the said doctor. He also highlighted that as per the said appointment letter, the concerned doctor was obliged to take up any other responsibility assigned by the Director of the hospital in addition to his routine work specified therein. He pointed out that the said doctor was also entitled to 15 days of annual leave, 5 days of casual leave and 4 days of sick leave during the calendar year as per the said appointment letter and his appointment was also governed by the existing service regulations of the hospital as well as the changes and amendments that may be introduced by the assessee from time to time. He also invited our attention to a copy of such service rules placed at page 5 of the assessee's paper book volume-2 and pointed out that as per rule 3bb, 'employee' was defined to mean any person employed by the Institution to do any kind of work for the Institution including technical and supervisory work on payment of remuneration. He submitted that no doubt the honorary consultants were specifically excluded from the said definition of 'employee' given in the rules, the remuneration in question paid to the consultant doctors was not honorarium as defined in rule 3.e of the said rules. He also invited our attention to rule 4 of the said rules to point out that 'part-time employee' and 'fixed period/contract employee' were different types of employees as specified in the Employees Service Rules of the assessee. He thus contended that even though there was a distinction between the regular doctors employed in the hospital of the assessee and the consultant doctors appointed for a fixed contract, both of them were employees of the assessee. He submitted that the said service rules were meant for the employees of the assessee and the very fact that the said rules were applicable to the consultant doctors as mentioned in the appointment letter clearly shows that there was an employer-employee relationship between the assessee and the said doctors.
10. As regards the applicability of rule of consistency to the present case, he contended that it is not a case of regular assessment and the said rule, therefore, is not applicable. He also contended that the TDS returns filed by the assessee for the earlier years as well as subsequent years were simply accepted by the assessing officer without any examination or verification and, therefore, it is not a case of violation of rule of consistency in any case. He also pointed out from the copy of income-tax return filed by one of the consultant doctors placed at page 78 of the assessees paper book that the main income declared by him for the relevant year was from the remuneration received from the assessee. As regards the decisions in Income Tax Officer v. Calcutta Medical Research (1999) 107 Taxman 250 (Cal.) (Mag.) and Dr. Shanti Sarup Jain v. First Income Tax Officer (1987) 21 ITD 494 (Bom.) relied upon by the learned counsel for the assessee, he contended that the facts involved in these cases were entirely different from the facts of the present case and if the ratio laid down therein is properly appreciated in the facts of the present case, the same supports the case of the revenue and not of the assessee.
11. We have considered the rival submissions and also perused the relevant material on record to which our attention was drawn during the course of hearing. We have also carefully gone through the various decisions cited by the learned counsel for the assessee in support of his contentions raised before us. The question which is required to be answered by us to resolve the controversy arising in the present case is what exactly is the nature of remuneration paid by the assessee to the consultant doctors rendering their services in its hospital. In this regard, it is important to ascertain the relationship between the assessee and the consultant doctors and the learned representatives of both the sides having mainly relied on the appointment letters issued by the assessee to the consultant doctors to put forth their case, it would be relevant to refer to the said appointment letters especially the terms and conditions of the appointments stipulated therein to ascertain such relationship. A careful perusal of the said Appointment letters shows that out of the eighteen consultant doctors in question, eleven doctors were being paid a fixed monthly amount by the assessee whereas the remaining seven doctors were being paid some fixed share of fees received from private patients treated by them in addition to the fixed monthly payment. Barring this aspect, there was no material difference in the terms and conditions of their appointment, which were generally as follows :-
(t) The appointment letters were issued to the consultant doctors with reference to their applications.
(it) Appointment offered to them was for a part-time period and their working hours/timings were fixed in advance.
(iii) The contract appointment was initially given for a fixed period of one year which could be extended on mutual consent.
(iv) The consultant doctors were to attend to the hospital calls as and when required both night and day during the entire period of their appointment.
(v) Their appointments were governed by the existing Service Regulations of the hospital and all those changes and amendments that may be introduced by the management from time to time.
(vi) During the period of appointment, one month's notice was required to be given for termination of service from either side or one month's salary was to be paid in lieu of such notice.
(viz) In case of seven doctors, 50 per cent of fees received from private patients treated by them was to be paid by the hospital in addition to monthly fixed amount whereas a consolidated monthly salary/ honorarium was to be paid to the other eleven doctors.
(viii) The eleven doctors receiving consolidated monthly payment were entitled to different types of leave, i.e., casual leave, annual leave, sick leave, etc. They were also expected to shoulder any responsibility assigned to them by the hospital management in addition to primary responsibilities assigned to them.
12. It is evident from the aforesaid terms that the appointments were governed by and subject to the service regulations of the assessee's hospital and it would thus be appropriate to appreciate the said terms in the light of such service regulations to ascertain the exact relationship between assessee and consultant doctors. Such rules, which are relevant in this context, are extracted below " 1. Title and commencement:
These rules may be called the St. Stephen's Hospital Employees Service Rules. These rules shall replace the rules already issued from time to time and will come into force with effect from 1-4-2001.
2. Score :
These rules shall be applicable to all the employees of the St. Stephen's Hospital, Delhi.
If any conditions agreed upon in any Contract/ appointment letter of an employee are different in any manner whatsoever from any of these rules, the conditions mentioned in the Contract/ appointment letter of an individual employee shall be binding on the Hospital Management as well as the employee concerned.
In the matters either not mentioned in an individual Contract/appointment letter, or even in the absence of appointment letter or Contract of service, the provisions contained in these rules shall apply to the employees concerned.
3. Definitions:
In these rules, unless there is anything repugnant in the subject or context:-
3(bb) 'Employee' means any person employed by the Institution to do any kind of unskilled, semi-skilled, skilled, manual, supervisory, technical, operational or clerical work for the Institution on payment of remuneration but does not include: 3(e) 'Honorarium' means the recurring or non-recurring payment granted to an employee as remuneration for special work of an occasional or intermittent character. 3(q) 'Salary' except otherwise defined means the basic pay and applicable allowances approved from time to time. The Governing Body may, however, sanction any other allowance which may include personal pay or special pay at its discretion and such an allowance, if sanctioned, will form part of the salary for the purpose of these rules. 3(r) 'Service' means the actual period of duty and periods of authorised leave including holidays and authorised period of 'leave without pay'.
4. Classification of employees :
For the purpose of these rules, all the employees shall be classified as under:
4.1 Permanent 4.2 Temporary 4.3 Casual/Daily Wages 4.4 Probationer 4.5 Fixed period/Contract Employee 4.6 Part-time Employee 4(ii) 'Temporary' employee is one who is appointed for a limited period in:
4(iia) a post created for work which is essentially of temporary nature; or 4(iib) a post which is co-extensive with a project or special funds of limited duration; or 4(iic) a post which is vacant due to the absence of the regular incumbent of that post; or 4(iia) a post created due to unusual pressure of work.
4(v) 'On Contract/Fixed Period employee'is one who is employed on a Contract either by an Agreement or by an appointment letter for a specified period and his services will terminate automatically on the expiry of the Contract/Fixed period without any notice or compensation unless the Contract period is renewed with mutual consent either on the same or on different conditions. These employees will, however, be entitled to only such benefits as are specified in their respective agreements or appointment letters besides those required by statutes.
4(vi) 'Part-time employee' is one who is employed to do work for less period than that of normal working hours. A part-time employee will not be entitled to any other service benefits excepting those specifically incorporated in his appointment letter and those required by statutes.
8. Commencement of employment:
Every appointment shall commence from the date of commencement as specified in the appointment letter or the date of reporting for duty, whichever is later."
13. The position which emerges from the combined reading of the terms of appointment of the consultant doctors and the relevant service regulations can be summarized as follows :-
(1) Applications in writing were invariably made by the consultant doctors to the assessee for appointment in its hospital and such appointments were generally made with reference to such applications.
(2) Working hours of the consultant doctors were fixed and in addition to such fixed working hours, the consultant doctors were also required to attend to the calls of the assessee's hospital as and when required both night and day.
(3) The consolidated remuneration fixed for each month was paid to them and such payment was referred to as 'salary' in the appointment letters.
(4) The consultant doctors were appointed initially for a contract period of one year which was further extendable as per the mutual consent of the assessee as well as the concerned doctors.
(5) Most of the doctors were entitled for different types of leave and all of the consultant doctors were subject to the existing service regulations of the hospital and the amendments made therein from time to time.
(6) As mentioned in rule (2) of the aforesaid service rules, the said rules were applicable to all the employees of the assessee's hospital and the very fact that the consultant doctors were governed by the said rules was sufficient to show that there was an employer- employee relationship between the assessee and the consultant doctors.
(7) As per the definition of 'employee' given in rule (3.bb), any person employed by the Institution to do, inter alia, any kind of technical, supervisory or operational work for the Institution on payment of remuneration was treated as employee of the assessee's hospital and the categories of employees excluded from the said definition also did not include the consultant doctors since the remuneration received by them was not 'honorarium' as defined in rule (3.e) of the said rules.
(8) Even the definition of 'salary' given in rule (3.q) of the aforesaid rules was an all-inclusive definition and the definition of 'service' given in rule (3.r) meant the actual period of duty and periods of authorised leaves including holidays and authorised period of 'leave without pay'.
(9) As per the classification of employees given in rule (4), the employees were classified in different categories which included, inter alia, 'fixed period/contract employee' and 'part-time employee'. These two categories of employees were further defined in rules (4.v) and (4.vi) and if the terms and conditions of the appointment of the consultant doctors as summarized hereinabove from the appointment letters are appreciated in the light of the said definitions, it clearly shows that the consultant doctors were falling in the said categories of employees as defined in the Service Rules.
14. Keeping in view the aforesaid position arising from the terms of appointment of consultant doctors as well as the Service Rules governing the employees of the assessee's hospital, it can reasonably be concluded that all the consultant doctors were employees of the assessee and even if there was a distinction between the terms of employment of the permanent employees and the terms of employment of consultant doctors, the fact remains to be seen is that they were the employees of the assessee falling in the category of fixed period/contract employee and/or part-time employee. It, therefore, follows that the relationship between the assessee and the consultant doctors was purely that of employer and employee and remuneration paid to them in terms of the said relationship was salary which attracted the provisions of section 192.
15. Before us, the learned counsel for the assessee has relied on various case laws in support of his contention that there was no employer employee relationship between the assessee and the consultant doctors and the remuneration paid by the assessee to the said doctors was not 'salary' attracting the provisions of section 192. On a careful perusal of the said decisions, we, however, find that the same are distinguishable on facts and, therefore, do not support the assessee's case. For instance, in the case of Income Tax Officer v. Dr. (Mrs.) Santosh Ghai (2002) 123 Taxman 188 (Chd.) (Mag.), the assessee was a doctor appointed as a consultant in a hospital. She, however, was entitled to receive only 30 per cent share of particular. operations carried out by her. The said doctor thus was neither entitled for a fixed remuneration nor the service regulations of the employer hospital were applicable to her, which facts clearly are different from the facts of the present case. Similarly, in the case of Calcutta Medical Research (supra), assessee-institute had collected fees/charges from patients and paid the same to visiting doctors after deducting 10 per cent collection as administrative charges. in these facts and circumstances, it was held by Calcutta Bench of ITAT in the said case that the assessee-institute had merely provided infrastructure for visiting doctors to carry out their professional activities in its premises in lieu of commission and there being no employer-employee relationship between the said doctors and the assessee-institute, payments made to them could not be held to be salary'. In the case of Dr. Shanti Sarup Jain (supra), the consultant doctor was having his own staff, telephone, furniture, etc., in consultancy room and the rules, regulations and service conditions applicable to the other employees of the hospital were not applicable to him. In these facts and circumstances involved in the said case, it was held by the Mumbai Bench of ITAT that the fixed monthly honorarium received by the consultant doctor was not income from salary chargeable to tax under section 17 since there was no employer-employee relationship between the assessee and the hospital. In the present case, the consultant doctors were goversed by the Service Rules of the hospital and as per the said Rules, they were falling under the specific categories of employees as already discussed hereinabove.
16. As regards the treatment given by the assessee as well as the consultant doctors to the remuneration paid in their respective books of account, we are of the opinion that the same is not conclusive to decide the nature of the said remuneration which, as already observed, has to be ascertained on the basis of relationship between the assessee and the consultant doctors. In this regard, the decision of Hon'bie Supreme Court in the case of Petron Engg. Construction (P.) Ltd. v. CBDT (1989) 175 ITR 523 (SC) relied upon by the learned counsel for the assessee involved an altogether different issue and the ratio of the said decision, in our humble opinion, cannot be applied to the facts of the present case involving a different issue. Even the decision of Hon'ble Delhi High Court in the case of A.R.J. Security Printers (supra) cited by the learned counsel for the assessee cannot be applied in the present case because the issue relating to deduction under section 80-1 involved in the said case was decided by the Tribunal in favour of the assessee in other years and since the orders of the Tribunal for those years had attained finality, it was held by the Hon'ble Delhi High Court that earlier decisions on the same question should not be reopened unless some fresh facts are found in a subsequent year. In the present case, the stand of the assessee taken in the earlier years as well as subsequent years on the similar issue has been accepted without any examination even by the assessing officer. Moreover, as pointed out by the learned departmental representative it is not a case of regular assessment determining the income of the assessee but it involves proceedings under section 201(1) for treating the assessee as in default for short deduction of tax which are different from the regular assessment proceedings.
17. In the case of Bhojraj Harichand (supra) cited by the learned counsel for the assessee, it was observed by the Hon'ble Lahore High Court that as per the well-known cannon of construction of documents, the intention generally prevails over the words used and that such a construction should be placed on the words in a deed as is most agreeable to the intention of the grantor. If there are grounds appearing from the face of the instrument affording proof of the real intention of the parties, then that intention would prevail against the obvious and ordinary meaning of the words used. Keeping in view these observations recorded by the Hon'ble Lahore High Court, we are afraid that this decision relied upon by the learned counsel for the assessee actually supports the case of the revenue since the real intention of the parties, as already discussed with reference to the terms of appointment letter issued to the consultant doctors in the light of service regulations of the assessee's hospital, was to have an employer- employee relationship between them and it was not a case of appointment of a consultant simplicitor. As such, considering all the facts of the case as well as keeping in view the reasons given above, we are of the considered opinion that there was an employer- employee relationship between the assessee and the consultant doctors and consequently, remuneration paid to them was chargeable to tax under the head 'Salaries'. The said payments thus were subject to deduction of tax as per the provisions of section 192 and not as per the provisions of section 194J. In that view of the matter, we hold that the assessing officer was fully justified in treating the assessee as in default for short deduction of tax at source from the payments made to the consultant doctors and there was no infirmity in the impugned order of the learned Commissioner (Appeals) upholding the action of the assessing officer on this count. The same is, therefore, upheld dismissing the appeal filed by the assessee.
18. In the result, the appeal of the assessee is dismissed.