Tds)-I v. B)Accordingly, This Question As Proposed Does Not Give Rise Toany Substantial Question Of Law, As It Stand Concluded By The

Priya Soparkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1425 OF 2016 Commissioner of Income Tax-TDS-2, Mumbai. … Appellant V/s. Saifee Hospital Trust … Respondent --- Mr.Suresh Kumar for the Appellant.Ms.Aasifa Khan for the Respondent. --- CORAM : AKIL KURESHI AND M.S.SANKLECHA, JJ. DATE : MARCH 6, 2019. P.C.:- 1.This Appeal under Section 260-A of the Income Tax Act,1961 (the Act), challenges the order dated 16[th] September,2015 passed by the Income Tax Appellate Tribunal (the Tribunal).This Appeal relates to Assessment Year 2011-12. 2.The Revenue urges the following questions of law for ourconsideration: circumstances of the case and in law, the ITAT iscorrect in holding that the Payment made to M/sMonginis Hospitability Services Pvt. Ltd. Arepayments for work contract covered u/s 194C andnot fees for technical services u/s 194J, withoutappreciating that the services received by assesseeare technical and managerial in nature? (2) Whether, on the facts and in the circumstancesof the case and in law, the ITAT was correct inaccepting the claim of the assessee that tax wasdeductible under section 194J on payment madeto full time Doctors and not under section 192 ofthe I.T.Act without appreciating the facts that theappointment letter created employer employeerelationship and hence TDS should be deductedu/s 192 of the Act? (3)Whether on the facts and in the circumstancesof the case and in law, the ITAT was correct inaccepting the claim of the assessee that tax wasnot deductible on 75% of actual payments made tothe Doctors u/s 194J of the Act as only 25% ofthe total amount paid by the patient were routedthrough the Hospital and 75% of the actualpayment were recovered directly from the patientby the Doctors? (4) Whether on the facts and in the circumstancesof the case and in law, the ITAT was correct indeleting the demand u/w 201(1A) of the Actwithout appreciating the fact that in the case ofHindustan Coca Cola Beverage Pvt. Ltd. It wasclearly mentioned that “this will not alter theliability to charge interest under Section 201(1A)of the Act till the date of payment of taxes by thedeductee-assessee? (5)Whether on the facts and in the circumstancesof the case and in law, the ITAT was justified inrejecting the order of the Assessing Officer byholding that the assessee is not in default u/s201(1) in respect of the amount of tax which has not been deducted from the payments made underthe required sections and that the assessee is notliable for levy of interest under section 201(1A)?” 3.Re.Question No.1 :- (a)The impugned order of the Tribunal records the fact thatthe respondent was receiving services for cooking of food andsupply of work force to serve the food from M/s MonginisHospitability Services Private Limited (M/s Monginis). Therespondent-assessee had deducted tax at source under Section194C of the Act on the payments made to M/s Monginis forservices of the catering rendered by it. (b)The Assessing Officer held that services of catering renderedby M/s Monginis is technical service and therefore, deduction oftax at source by the respondent has to be under Section 194J ofthe Act. However, in appeal both the Commissioner of IncomeTax (Appeals) (CIT(A)) as well as the Tribunal on facts havecome to finding that the services rendered by M/s Monginis ofcooking and serving food would fall within the defination of"work" provided under Section 194C of the Act. Thus, the tax hasbeen properly deducted at source by the respondent. (c)The concurrent finding of fact rendered by the CIT (A) 48 itxa 1425-16-o-s and the Tribunal that service of cooking does not include anytechnical service, is not shown to be perverse. (d) In the above view, no fault can be found with the impugned (c)The concurrent finding of fact rendered by the CIT (A) 48 itxa 1425-16-o-s and the Tribunal that service of cooking does not include anytechnical service, is not shown to be perverse. (d) In the above view, no fault can be found with the impugned order of the Tribunal. Therefore, this question of law as proposeddoes not give rise to any substantial question of law. Thus, notentertained. -4.Re.Question No.2 : (a)It is an agreed position between the parties that this issuestand covered in favour of the respondent-assessee by thedecision of this Court in case of Commissioner of Income Tax (TDS)-I Vs. Asian Heart Institute (ITXA No.1294/2016). Inthe above case, a similar issue raised by the Revenue came to bedismissed by a speaking order dated 5[th] March, 2019. Nodistinction in facts and/or law has been pointed to us in thepresent case from that existing in the above case of Asian HeartInstitute (supra), which would warrant our taking different viewin this matter. (b)Accordingly, this question as proposed does not give rise toany substantial question of law, as it stand concluded by the decision of this Court. Hence, not entertained. 5.Re-Question No.3 :- (a)The Assessing Officer held that the respondent is liable todeduct tax under Section 194J of the Act in respect of paymentsmade directly by the patients to the consultant doctors workingin the hospital. (b)In appeal the CIT (Appeals) found that there is no record toshow that hospital had credited any amount of the fees in theaccount of doctors or made payment to the doctors. Thus, theCIT (A) held that in absence of any tangible evidence andmaterial to show that the respondent had either credited or paidthe amount to the doctors, no requirement to deduct tax on theabove fees under Section 194J of the Act arises. Therefore, itdirected the Assessing Officer to delete the addition made onaccount of non-deduction of tax at source under Section 194J ofthe Act. (c)On further appeal by the Revenue the Tribunal alsoindependently found that there is no tangible evidence andmaterial on record to show that any amount of fees was credited 68 itxa 1425-16-o-s in the doctors' account or paid to the doctor by the assessee.Thus, dismissed the revenue's appeal. (d)We note that in the face of concurrent findings of fact that there is no evidence of crediting or making payments to thedoctors by the respondent-assessee, no liability for deduction oftax under Section 194J of the Act at the hands of the respondent-assessee can arise. This in the absence of the finding of factbeing shown to be perverse. (e)In the above view, this question as proposed also does notgive rise to any substantial question of law. Thus, not entertained. 7.Re.Question Nos.4 and 5:- (a) These questions are consequential to question Nos. 1 to 3.However, as question Nos. 1 to 3 had been answered in favour ofthe respondent-assessee, these questions become academic inthe present facts. Thus, not entertained. 8.In the result, income tax appeal is dismissed. No order as tocosts. (M.S.SANKLECHA,J.) (AKIL KURESHI,J.)