Friday, February 14, 2014

Retainer fee to doctor would attract sec. 192 TDS instead of sec. 194J TDS if terms of contract prove him to be an employee

Cumulative effect of agreement with retainer-doctor is relevant to decide whether TDS is to be effected either under section 192 or under section 194J.

The Tribunal held as under:
1)  Retainer-doctor was an employee and not an independent professional as terms of contract provided that:
a)  Retainer-doctor was debarred from taking any other assignment with any other company engaged in business similar to assessee-company (i.e., corporate hospital);
b)  He was required to follow rules, regulations and policies of assessee-company and to report to the head of the department in which he was working;
c)  He was to be paid fixed consolidated monthly fee with no fee-sharing with hospital.
2)  The retainership agreement was also for a limited period. Mere fact that the retainer-doctor had to raise monthly bills for getting payment of consolidated retainership fee would not make him an independent professional doctor, when in substance the cumulative effect of agreement indicated employer-employee relationship;

3) Thus, his fixed monthly retainer fee was in nature of salary which would be liable for tax deduction under section 192 and it was not a professional fee liable for tax deduction under section 194J - Escorts Heart Institute & Research Centre Ltd. v. Dy. CIT [2014] 42 200 (Jaipur - Trib.) (TM)