Itxa/1298/2016 Of Commissioner Of Income Tax-Tds-2 v. National Helath And Education Society (P.d. Hinduja Hospital And Medical Research Centre)

Priya Soparkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1298 OF 2016 Commissioner of Income Tax-TDS-2 … Appellant V/s. National Health & Education Society … Respondent --- Mr.Suresh Kumar for the Appellant.Ms.Rutuja Pawar i/by Mr.S.C.Tiwari for the Respondent. --- CORAM : AKIL KURESHI AND M.S.SANKLECHA, JJ. DATE : MARCH 6, 2019. P.C.:- 1.Revenue has filed this appeal challenging the judgment ofthe Income Tax Appellate Tribunal. Following questions arepresented for our consideration:- “(1) Whether on the facts and in the circumstancesof the case and in law, the ITAT was correct inholding that the orders passed by the AO undersection 201(1) for the Financial year commencingon 1[st] April 2007 and earlier years are time-barredwithout appreciating the facts that as per provisoto sub-section 3 of the section 201 and as perCBDT's Circular No.5/2010 dated 03.06.2010, thetime-limit for passing such orders is 31.03.2011?(2)Whether on the facts and in thecircumstances of the case and in law, the ITAT was correct in not treating the Hospital BasedConsultants (HBCs) as employees and thereforeprovisions of Sec.192 is not applicable? (3) Whether on the facts and in the circumstancesof the case and in law, the ITAT was justified inholding that the payments made to the employeesof Hinduja Foundation who had worked with theassessee for rendering various services is to betreated as reimbursement and not as paymentstowards professional fees instead of ITAT treatingit as a reimbursement of expenditure and TDS wasrequired to be deducted u/s 194? (4) Whether on the facts and in the circumstancesof the case and in law, the ITAT was justified inholding that the drug handling charges paid by theAssessee are covered under section 194C for thepurpose of TDS without appreciating that these arecommission liable for TDS under section 194H?” 2.Question No.1 Relates to the decision of the Tribunal to holdthat the order passed by the Assessing Officer under Section201(1) of the Income Tax Act, 1961 ("the Act" for short) wasbarred by limitation. Question Nos.2,3 and 4 relate to the merits of the deductions to be made at source. Learned counsel MissPawar for the assessee is correct in pointing out that the Tribunalin the impugned judgment has decided only the question oflimitation and held that the order of Assessing Officer' order wasbarred by limitation. In that view of the matter, the question Priya Soparkar 32 itxa 1298-16-o Nos.2,3 and 4 raised by the revenue do not arise out of theimpugned judgment of the Tribunal. Neverthless if it can begathered that on the merits also the revenue has no arguablecase, it would be futile to test the Tribunal's judgment on theissue of limitation. 3.In this context, counsel for the revenue fairly brought to ournotice a judgment of this Court in case of this very assessee dated22[nd] February, 2019 in Income Tax Appeal No.105 of 2016 andconnected appeals in which all three questions Nos.2 to 4 notedabove came up for consideration before the High Court and therevenue's appeal raising such questions was dismissed. Undercircumstances, without recording separate reasons, this appeal isalso dismissed. (M.S.SANKLECHA,J.) (AKIL KURESHI,J.)….….