JUDGMENT K.S. Jhaveri, J. - In both these appeals common question of law and facts are involved hence they are decided by this common judgment. 2. By way of these appeals, the appellant has assailed the judgment and order of the tribunal whereby tribunal has partly allowed the appeal of the assessee and reversing the view taken by the CIT(A). 3. In other appeal (9/2014), the tribunal has by majority of three members decided against the assessee. Therefore, this appeal is preferred. 4. The facts of the case are that assessee/appellant company is running a hospital namely Escorts Heart Institute & Research Centre Ltd. at Jawarhar Lal Nehru Marg, Jaipur now known as Fortis Hospital and having its registered office at Okhla Road, New Delhi. The appellant entered into several agreements/contracts for running this hospital, such as agreement for providing medicines to in-patients, providing facilities for various treatments, cleaning, gardening, manpower at the hospital etc. The hospital also engages doctors in the category of empanelled doctors and retainers in different specialities for providing expertise professional services. 4.1 The TDS survery was carried out in appellant''s case on 13.8.08. During the post survey proceedings, the assessee appellant submitted details of its expenses and TDS deducted on the same, replies were filed with various details as and when required, which were placed on record and considered. 5. This court while admitting the appeals framed the following substantial questions of law:- Appeals No.8/2014 & 9/2014 admitted on 28.5.2014 (i) Whether in the facts and circumstances of the case and in law the ld. Income Tax Appellate Tribunal was justified in holding that the provisions of Section 192 are at all applicable in the case of retainer doctors? (ii) Whether the ld. Income Tax Appellate Tribunal was justified in reversing the finding of ld. CIT(A) without taking into consideration that the appellant assessee could not have been treated as an "assessee in default" as per provisions of Section 191 of the Act specifically when the assessee appellant does not come within the three broad category referred to in part (b) of Explanation to Section 191 and more particularly when the payee has not failed to pay such tax directly as required by Section 191?" 6. The matter was listed before this on previous occasion namely, on 11.9.2017 where counsel for the appellant Mr. The matter was listed before this on previous occasion namely, on 11.9.2017 where counsel for the appellant Mr. Bohra has submitted that the terms and conditions which can be applied is summarised in a chart which has been prepared by counsel for the assessee which reads as under:- S. No. As per Agreement Employee Doctors (Agreement @ pg. 170) Retainer/Consultant Doctors (Agreement @ pg.150) 1. Term Whole time employment-not restricted for a fixed term Fixed Term defined in agreement renewable based on mutual consent 2. Remuneration Salary plus following employment benefits: Consolidated Retainership Fee House Rent Allowance Education Allowance Special Allowance Medical Reimbursement Leave Travel assistance Performance linked bonus Also entitled to performance linked bonus N.A. Also entitled to Terminal benefits: N.A. Provident Fund Gratuity 3. Exclusively Doctors employed on whole-time basis with the Hospital-complete restriction on any other work for remuneration (parttime/full time) in any other trade or business Partly restricted-Doctors not to engage in employment with other hospitals; however, no restriction on private practice 4. Transfer/Posting Transfer and posting of doctors at the sole discretion of the Hospital N.A. 5. Retirement Retirement Age prescribed under the agreement @ 58 years N.A. 6. Leave Eligible for privilege, sick and casual leaves as applicable for respective category N.A. 7. Intellectual Property rights Any IPR developed by the doctor to be the sole property of the Hospital N.A 8. Insurance N.A. Professional Indemnity Insurance obtained by Doctors on their own account @ pg. 135 9. ITR Remuneration treated as 'Salary' by Doctors Remuneration treated as 'Professional Fee' by Doctors @ pg.143 & 146 7. He has contended that the terms and conditions are quite distinguished and they can be got verified. He has taken us to the observations which are made by the authority which reads as under:- "2. Payment to retainers 2.1 The assessee deductor is employing doctors in the categories of empanelled doctors and retainers. The assessee is deducting TDS under section 194J of the IT Act on account of payments made to these doctors. Relevant para of sample appointment letter in relation to retainer doctor is reproduced as under:- 7. You shall not act in a similar, or any capacity, for any other company engaged in a business similar to that of the company. The conditions mentioned in the above appointment letters are the same for other retainers and empanelled doctors. Relevant para of sample appointment letter in relation to retainer doctor is reproduced as under:- 7. You shall not act in a similar, or any capacity, for any other company engaged in a business similar to that of the company. The conditions mentioned in the above appointment letters are the same for other retainers and empanelled doctors. The main features of appointment of an empanelled doctor are that he should given consultation to out-patients and emergency patients on referral basis, he should be available for rotational calls including emergency duties, should provide complimentary service to staff, and follow the guidelines framed for empanelled doctors. The payments to empanelled doctors are to be made on revenue sharing basis. The guidelines for empanelled doctors include the rights and duties, levy or charge of fee, tenure and performance appraisal. The conditions for employment on which the above decision is based are similar to the conditions of employment in the case of assessee. In assessee''s case also, the appointment letter lays down the conditions for employment of the retainer doctors and the same have been discussed in details above. In light of the above decision, the assessee''s argument that the employment is for a fixed period and that no PF or other benefits are being given to the retainer doctors is not acceptable, as even if the contract is for short period and certain benefits are not given to the doctors, it does not change the fact that the relation between the assessee and the doctors is essentially that of employer-employee. The retainer doctors are appointed for a fixed duration, they have fixed monthly remuneration, they have to abide by the rules set by the assessee organization and they are under specified reporting authority. Consequently, the payment made to the retainer doctors is chargeable to tax under the head salaries. Further, the Hon''ble Supreme Court in the case of Justice Deoki Nandan Agarwala vs. Union of India (1999) 237 ITR 872 have held that although in the case of Supreme Court and High Court Judges, there is no employer, yet the payment received by them is in the head of salary as salary is reward for employment. In other words, they have given a wider implication to salary and even the existence of employer employee relationship is not necessary for holding a payment as salary. In other words, they have given a wider implication to salary and even the existence of employer employee relationship is not necessary for holding a payment as salary. The assessee had relied on Hon''ble Delhi High Court decision in the case of CIT, Delhi vs. Coastal Power Co (2007) 162 Taxman 120 (Del). The ratio of this is not applicable in the present case as the facts of this case are very different from the present case. In this case, the Hon''ble High Court Delhi decided that as per clause 11 of the agreement of the consultants with the assessee, the consultants would indemnify the assessee against all liabilities and hence there cannot be any employer employee relationship in this case. However, there exits no such indemnity clause in the present case. Further the assessee''s contention is not acceptable as in assessee''s own case there are two categories of doctors, namely, empanelled doctors and retainer doctors, and from the terms of appointment letters reduced above, it is evidently clear that the empanelled doctors can take more than one assignment and have a revenue sharing formula and separate rules and conditions, while the retainers are having fixed monthly remuneration, cannot seek employment elsewhere and are governed by the same rules and regulations as the other employee. Hence, in view of the discussion above, the payments made to retainer doctors are in the nature of salary on which TDS is deductible under section 192 of the IT Act. 4.3.1 I have carefully considered the facts of the and submissions of ld. AR. On perusal of the relevant details/documents, I fully agree with the ld. AO in holding that the relationship between the appellant and the retainer doctors was essentially that of employer employee relationship and therefore, the fixed monthly payment to the retainer doctors was in the nature of salary. Further, I find that the appellant''s case is directly covered by the decision of Hon''ble ITAT, Delhi Bench in the case of St. Stephen''s Hospital vs. DCIT (supra) relied upon by the ld. AO. Further, I find that the appellant''s case is directly covered by the decision of Hon''ble ITAT, Delhi Bench in the case of St. Stephen''s Hospital vs. DCIT (supra) relied upon by the ld. AO. Therefore, respectfully following the said decision of Hon''ble Tribunal, it is held that the appellant was liable to make TDS under section 192 of the IT Act in respect of the payments made to the retainer doctors." 7.1 He has also taken us to the order of the tribunal where all the three members have taken a different view holding as under :- "7.1 It would be necessary to review the law in the matter, as explained by the higher courts of law i.e., defining the constituents of, or the essential ingredients of what constitutes, salary, before we proceed to apply the law as explained to the facts of the case. The sine qua non for charge ability of a sum under the head ''salary'' is that there must be an employee-employer relationship between the person making the payment or on whose behalf of payment is made, and the assessee, i.e., its beneficiary. Whether the relationship of master and servant exists between the management and the workmen is essential a question of fact. However, the scope of Section 15 contemplates every kind of servant, i.e. however highly or lowly placed the payee may be several factors may indicate a relations of master and servant, none of which may be conclusive. No single factor can be considered as absolutely essential. The decision, thus, rests on the understanding of and with reference to the cumulative effect of all the factors, some of which have been identified as the right to select for appointment, the right to appointment, right to terminate the employment, the right to take other disciplinary action, the right to prescribe condition''s of service, the nature of duties performed by the employees, i.e. right to control the employee''s manner and method of work; the right to issue directions; the right to determine the source from which wages or salary is to be paid, and a hospital such circumstances may have to be considered to determine the existence of the relationship of master and servant. The test of control is, again, not of universal application, and no standard can be issued with regard thereto. The test of control is, again, not of universal application, and no standard can be issued with regard thereto. As such, the rule ..greater the amount of control exercised over a person rendering service by the person contracting them, the stronger the ground for holding it to be a contract of service, is again a general rule, which will have to be applied in the facts and in the circumstances of each case, and no standard with reference to the degree of control is possible to be laid down (source: Chaturvedi & Pithisaria''s Income Tax Law, Fifth Edition, Vol. I pgs. 1142 to 1155). The remuneration of the judges of the Hon''ble high courts and the supreme court, has held by the hon''ble apex court in the case of Justice Deoki Nandan Agarwala vs. Union of India (1999) 237 ITR 872 (SC) as assessable as salary income under section 15 of the Act and, accordingly, subject to TDS under section 192 of the Act. The hon''ble court held that though there is no employer, yet the payment received by the judges, who are constitutional functionaries, falls under the head ''salary'' being only a reward of employment. As such, even the existence of an employee-employer relationship, considered in the classical sense, may not be a necessary condition for holding the payment as ''salary''. "15. After considering the submissions and perusing the material on record, I find that assessee deserves to succeed on this issue also. I noted that there is a totally different agreement entered into between assessee hospital and empanelled doctors and retainer doctors. Empanelled doctors are on regular salary where employer and employee relationship exists. They are entitled for all service benefits like, Leave Encahsment, EPF and other benefits of service. However, in case of retainer doctors, no such benefits are available to them. Their agreement clearly shows that they are on relationship basis though it can be renewed on mutual basis. There are certain restrictions imposed on retainer doctors which are essential for retaining them by the assessee hospital, other wise secrecy on technical points may be leaked. Therefore, there are certain restrictions imposed on the retainer doctors. It is also a matter of fact that retainer doctors are entitled for their private practice and they are doing. They are filing their income tax return on regular basis. Therefore, there are certain restrictions imposed on the retainer doctors. It is also a matter of fact that retainer doctors are entitled for their private practice and they are doing. They are filing their income tax return on regular basis. Whatever their receipts are from the hospital, they have been disclosed by retainer doctors in their income tax return. Therefore, this is not a case of evasion of tax. Assessee has already deducted tax under section 194J and there is no dispute in this regard. The AO and ld. CIT(A) has considered the decision in case of St. Stephen''s Hospital, Delhi. However, they have ignored the decision of Hon''ble Delhi High Court in case of Commissioner of Income Tax vs. Coastal Power Co (supra). In this case it has been held that the consultants are employed on temporary basis and the contracts are generally renewable after the expiration, they are not entitled to participate in any welfare benefits, plans or programs maintained by the assessee like medical plan, accidental death plan etc. In such circumstances, it was held that the provision of Section 192 of the IT Act were not applicable. This decision is rendered by the Hon''ble Delhi High Court and, therefore, AO should have taken into consideration instead of taking a decision of Tribunal of Delhi Bench. It is further seen that the AO has relied upon a decision of Hon''ble Supreme Curt in case of Justice Deoki Nandan Agarwala vs. Union of India, 237 ITR 872 (SC) wherein it has been held that although in the case of Supreme Court and High Court Judges, there is no employer-employee relationship, yet the payment received by them is in the head of salary as salary is a reward for employment. In my considered view, this ratio relied upon by aO goes in favour of assessee because all Judges are issued Form No.16 and not Form 16A and return filed accordingly by the Judges. All the Judges are entitled to retirement benefits, all the Judges are entitled to employment benefits such as PF, HRA, LTA, transports and other applicable allowance. 15.1 Whereas the retainer doctors of the assessee hospital on which the ratio of this decision has been made applicable were not getting any such benefit whatsoever and, therefore, this ration rather goes in favour of the assessee''s case. 16. 15.1 Whereas the retainer doctors of the assessee hospital on which the ratio of this decision has been made applicable were not getting any such benefit whatsoever and, therefore, this ration rather goes in favour of the assessee''s case. 16. I further noted that an employee doctor is paid performed linked bonus whereas a consultant doctor is not paid any such bonus. There is no retirement age for consultant retainers, whereas the same is defined for an employee as 58 years. 16.1 I have also gone through the decision of St. Stephen''s Hospitals, and find that there are certain different features i.e. in case of St. Stephen''s Hospital, the Hospital itself has titled the remuneration paid to the consultant as ''Salary'', whereas in the present case no such title has been given. It has been clearly mentioned as retainer-ship fee. 16.2 There is a clear mention in the appointment letter in case of St. Stephen''s Hospital that the appointee shall abide by the existing service regulations whereas in the present case no such condition is there. In the case of St. Stephen''s Hospital, there is also a clause which provides for the entitlement of various types of leave to the appointees. However, in the present case, there are no such benefits of various types of leaves to the retainer doctors. 16.3 I further noted that in case of Apollo Hospitals International Ltd. (supra), ITAT Mumbai Bench has examined the similar issue and held that "When there is a specific clause provided in the agreement for payment as "fee for services", then there is no reason to read the said clause as "Fees of services" and then there should not be any reason to treat the said payment by the assessee as payment of salary". The ration of this decision has been explained in the submissions filed by the assessee. Copy of this decision is also placed on record. 16.4 I further noted that in subsequent year in case of sister concern of the assessee i.e. Escorts Heart & Super Speciality Hospital Ltd. decided in Appeal No. 26/JPR/2010-11 dated 18.10.2011 similar issue has been decided in favour of the assessee following the decision of Hon''ble Delhi High Court and also taking into consideration the decision in case of Dr. Shanti Sarup Jain, 21 ITD 494 (Bom) and in case of Apollo Hospitals international Ltd. (supra) and findings of Ld. Shanti Sarup Jain, 21 ITD 494 (Bom) and in case of Apollo Hospitals international Ltd. (supra) and findings of Ld. CIT(A) have been recorded in para 3.3 at pages 6 to 9 which reads as under:- "3.3 I have carefully considered all the dimensions of the issue under consideration. The basic controversy in the present issue is about that nature of the relationship in between the appellant and the doctor''s employee on retainership basis and weather the TDS provision of Section 192 or 194J would apply on the payment made to them, as such. The brief facts of the issue are that the appellant, a super specialty hospital, apart from having certain doctors as regular employees, also has obtained services of others doctors in two manners, one way through the empanelment doctors and other are retainer doctors, both on contractual basis. The appellant has treated both types of doctors as consultant and deducted the TDS under section 194J of the Act. However, in view of the facts that the retainer doctors, being paid fixed monthly amount and reporting to the HOD, having restriction on working affiliation with other hospitals and also subjected to the general rules and regulations of the appellant hospitals and the AO formed the opinion that such doctors are similar to the regular employee of the appellant, therefore, the payment made to them falls under to category of salary income. Accordingly, the TDS deduction should have been made under Section 192 of the Act then under section 194J of the Act, as followed by the assessee. On the other hand the Ld. AR contended that the AO has misconceived the basic idea of obtained the services of such doctors on need basis, therefore, erroneously treated them as deemed employee of the appellant. Considering the relevant factual circumstances and totality of the facts, I find sufficient force and merits in the argument of the Ld. AR as he could able to contradicted and explain satisfactorily all the points rose by the AO in this regard. My observations cum finding, on this account, are being summarized as under:- i. The first base of the AO, in support of his stand, is that the retainer doctor is required to report to the directors/HOD of the appellant hospital, thus, they act like regular employee of the appellant. My observations cum finding, on this account, are being summarized as under:- i. The first base of the AO, in support of his stand, is that the retainer doctor is required to report to the directors/HOD of the appellant hospital, thus, they act like regular employee of the appellant. Regarding the above issue is concerned, I find that this sort of the condition would be always there in all types of employment arrangements, be it a regular, temporary or of consultancy in nature as to ensure discipline and proper coordination in running an origination. Thus, the same logic can not be considered as a valid ground to adjudge the retainers doctors as regular employee of the appellant as such. ii. The other base of the AO, in support of his stand, is the condition of the MOU with the retainer doctors, which restrict them not to work for other hospitals. In this regard, it is felt that this is a quite natural condition and would be there in such arrangement, especially in view of the nature of the service/expertise involved in the medical profession. In other words it is mutually agreed upon condition in between two contractual parties and the same can not be termed akin to an employee relationship, under the given circumstances. iii. The third issue raised by the AO, in his support, is that the retainer doctor is bound by the general instructions/regulations of the company and also with the secrecy clause etc. Here also, I am agreed with the submission of the Ld. AR that the considering the nature and technicalities of the super-specialty medical services like of the appellant, these types of restrictions, rules and regulations would always be necessary and essential in all sort of employment/consultancy arrangement, to ensure the proper functioning of such origination and also ensure the quality of medical services of the appellant. Accordingly, having such clause in the contract for the retainer doctor, does not convert from the status of the consultant them into a regular employee of the appellant, as such. The last point raised by the AO, in this regard, is that they are paid fixed monthly salary like the regular employee of the assessee. In this regard, I find force in the Ld. The last point raised by the AO, in this regard, is that they are paid fixed monthly salary like the regular employee of the assessee. In this regard, I find force in the Ld. AR''s argument that had they been engaged as regular employee, then they would have also entitled for various other benefits/facilities, which are available only to the general salaried employee as such. This is an undisputed fact that the retainer doctor is not entitled for any sort of such benefits, therefore, for all practical purposes, they can not be considered as a regular employee, as envisaged by the AO. v. It is also noted that unlike the regular employee, the retainer are engaged of the fixed period on temporary basis which may or may not be renewed as such. Similarly they are not entitled for other benefits like PF contribution, retirement benefits, live benefits, HRA, LTA, terminal compensation etc. which are otherwise available to all the regular employee of the appellant. These practical aspects clearly establish the fundamental difference in the service conditions of the regular employee viz. The retainer doctors as such. Accordingly in my considered opinion, by no starch of imagination the same can be considered the regular employee of the appellant. In this regard the decision relied upon by the appellant given in the case of Sh. Shanti Swaroop Jain 21 ITD 494(Bom.) and Apollo Hospital International Ltd. ITAT Mumbai (supra) are also found supporting the appellant on this account. Conclusion:- In view of the above defined factual and legal deliberation, I have come to the conclusion that the retainer doctors are basically working as consultant, on contractual basis, of the appellant and the payment made to them are subject matter of TDS to be deducted under section 194J of the Act. Accordingly the demand of Rs. 4,47,974/- raised under section 201(1A) of the IT Act, while treating them as regular employee and subjected to the provision of Section 192 of the Act, is hereby deleted. Consequently, this ground of appeal is upheld." These findings of Ld. CIT(A) for subsequent year in case of sister concern, in my considered view are correct finding which are after appreciating all the facts and various cases relied upon by Ld. A/R before him. Consequently, this ground of appeal is upheld." These findings of Ld. CIT(A) for subsequent year in case of sister concern, in my considered view are correct finding which are after appreciating all the facts and various cases relied upon by Ld. A/R before him. In view of these facts and circumstances and in view of the decision of Hon''ble Delhi High Court and also in view of Mumbai Bench of Tribunal in case of Apollo Hospital International Ltd. I allow this ground of the assessee." "19. I have carefully considered the arguments of both the sides and perused the material placed before me. The limited controversy posed by question no.2 is whether the payment made to the retainer doctors is professional charges liable to deduction of tax under section 194J or income from salary from which tax is liable to be deducted at source under section 192. Therefore, it has to be examined whether the relationship between the assessee and the retainer doctors in the employer employee relationship. To ascertain the above fact, it would be essential to refer to the retainership agreement. The assessee has given the sample copy of retainership agreement with few doctors. For ready reference, I shall reproduce herein below the agreement with Dr. Anshu S.S. Kotia:- "May 7, 2007 Dr. Anshu S.S. Kotia E-41, Siddharth Nagar, Sector-13 Malviya Nagar, Jaipur 302017 Rajasthan. Dear Anshu, Sub: Services on Retainership basis As discussed and mutually agreed, we are pleased to engage your services as Consultant - Anaesthesia for our Escorts Heart Institute & Research Centre Ltd., based at Jaipur, on the following terms and conditions: 1. This agreement shall initially be w.e.f. May 7, 2007 till September 30,2009 and may be renewed, thereafter, on mutually agreeable terms. 2. You shall be providing clinical services in the department of Anaesthesia, on a retainership basis, as may be required from time to time. 3. You shall be required to make your services available in accordance with the demands of the job and the best interests of patients. 4. for the purpose of ensuring coordinated services, you shall be reporting to the HOD - Anaesthesia or any other person nominated by the management. 5. In consideration of the services rendered by you, you shall be paid a consolidated retainership fee of rs.70,000/- (Rupees Seventy Thousand only) per month. 4. for the purpose of ensuring coordinated services, you shall be reporting to the HOD - Anaesthesia or any other person nominated by the management. 5. In consideration of the services rendered by you, you shall be paid a consolidated retainership fee of rs.70,000/- (Rupees Seventy Thousand only) per month. The retainership fee will be reviewed on April 1 of 2008 and them April 1 each year or at such other time as the management may decide. 6. In case you are required to travel on company''s business, the company will make appropriate arrangements, or you will be reimbursed expenses as permissible under the rules of the company. 7. You shall not act in a similar, or any capacity, for any other company engaged in a business similar to that of the company. 8. You shall commit to work in the interests of the company and in accordance with its values and philosophy, abiding by the rules, regulations and policies, as applicable. You will also follow the work processes, technical standards, protocols and general instructions issued thereof, of the company, as are in force, or amended from time to time. 9. You will not at any time, during the term of this arrangement or after, without consent in writing of the designated Head of the Hospital, disclose or divulge or made public, except on legal obligations, any information regarding the company''s affairs or administration or research carried out, of which you shall hereafter become possessed. 10. This agreement may be terminated by either party upon three month''s prior notice or payment of three month''s retainer fee in lieu to the other party. The notice of termination need not assign any reason therefore. Niether party shall be liable for any damages to the other consequent upon such termination. 11. It is mandatory for you to raise a monthly bill towards your professional fee, failing which the professional fee would not be processed. 12. if at any time, your conduct is considered by the company as detrimental to its interest, or in violation of one or more terms of this agreement or the regulations and policies of the company, or you neglect or fail or refuse to carry out the duties assigned to you hereunder, the company may terminate this agreement without notice and without any payment in lieu of notice. 13. 13. You shall upon completion or termination of the engagement hereunder, immediately deliver up to company all correspondence, documents, paper and property belonging to the company which may be in your possession or under your control. 14. The Jaipur courts will have exclusive jurisdiction for any issue or dispute arising out of or in connection with this arrangement. You are requested to return the duplicate copy of this letter in confirmation of your acceptance of the above terms and conditions. Looking forward to a mutually beneficial association. Yours faithfully, For Escorts Heart Institute & Research Centre Ltd. 7.2 Counsel for the appellant has taken us to the original cover note of premium for the risk of retainer or full time doctor Annexure-7 and the service conditions which are made for services on retrainership basis is on record of the appeal of memo the service conditions which are made for the appointment of the retainship which reads as under:- "Escort Heart Institute & Research Centre Ltd. May 7, 2007 Dr. Anshu S.S. Kotia E-41, Siddharth Nagar, Sector 13, Jaipur-302017 (Raj.) Dear Anshu, Sub: Services on Retainership basis As discussed and mutually agreed, we are pleased to engage your services as Consultant-Anaesthesia for our Escorts Heart Institute & Research Centre Ltd., based Jaipur, on the following terms and conditions:- 1. This agreement shall initially be w.e.f. May 7, 2007 till September 30,2009 and may be renewed, thereafter, on mutually agreeable terms. 2. You shall be providing clinical services in the department of Anaesthesia, on a retainership basis, as may be required from time to time. 3. You shall be required to make your services available in accordance with the demands of the job and the best interest of patients. 4. For the purpose of ensuring coordinated services, you shall be reporting to the HOD-Anaesthesia or any other person nominated by the management. 5. In consideration of the services rendered by you, you shall be paid a consolidated retainership fee of Rs. 70,000/- (Rupess Seventy Thousand only) per month. The retainership fee will be reviewed on April 1 of 2008 and then April 1 each year or at such other time as the management may decide. 6. In case you are required to travel on company's business, the company will make appropriate arrangements, or you will be reimbursed expenses as permissible under the rules of the company. 7. The retainership fee will be reviewed on April 1 of 2008 and then April 1 each year or at such other time as the management may decide. 6. In case you are required to travel on company's business, the company will make appropriate arrangements, or you will be reimbursed expenses as permissible under the rules of the company. 7. You shall not act in similar, or any capacity, for any other company engaged in a business similar to that of the company. 8. You shall commit to work in the interests of the company and in accordance with its values and philosophy, abiding by the rules, regulations and policies, as applicable. You will also follow the work process, technical standards, protocols and general instructions issued thereof, of the company, as are in force, or amended from time to time. 9. You will not at any time, during the terms of this arrangement or after, without consent in writing of the designated Head of the Hospital, disclose or divulge or make public, except on legal obligations, any information regarding the company's affairs or administration or research carried out, of which you shall hereafter become possessed. 10. This agreement may be terminated by either party upon three month's prior notice or payment of three month's retainer fee in lieu to other party. The notice of termination need not assign any reason therefore. Neither party shall be liable for any damages to the other consequent upon such termination. 11. It is mandatory for you to raise a monthly bill towards your professional fee, failing which the professional fee would not be possessed. 12. If at any time, your contact is considered by the company as detrimental to its interest, or in violation of one or more terms of this agreement or the regulations and policies of the company, or you neglect or fail or refuse to carry out the duties assigned to your hereunder, the company may terminate this agreement without notice and without any payment in lieu of notice. 13. You shall upon completion or termination of the engagement hereunder, immediately deliver up to company all correspondence, documents, papers and property belonging to the company which may be in your possession or under your control. 14. The Jaipur courts will have exclusive jurisdiction for any issue or dispute arising out of or in connection with this arrangement. 13. You shall upon completion or termination of the engagement hereunder, immediately deliver up to company all correspondence, documents, papers and property belonging to the company which may be in your possession or under your control. 14. The Jaipur courts will have exclusive jurisdiction for any issue or dispute arising out of or in connection with this arrangement. You are requested to return the duplicate copy of this letter in confirmation of your acceptance of the above terms and conditions. Looking forward to a mutually beneficial association. Yours faithfully. For Escorts Heart Institute & Research Centre Ltd. Fortis Escorts Hospital May 18,2007 To, Dr. Mohan B. Goyal 29, Bhagat Vatika Civil Lines Jaipur-302001 Rajasthan. Dear Dr. Mohan Sub:-Services on retainership basis As discussed and mutually agreed, we are pleased to engage your services as Senior Resident for our Fortis Escorts Hospital, based at Jaipur, on the following terms and Conditions :- 1. This agreement shall initially be w.e.f. 28th May, 2007 till 31st March, 2008 and may be renewed, thereafter, on mutually agreeable terms. 2. You shall be providing clinical services in the department of Internal Medicine, on a retainership basis, as may be required from time to time. 3. You shall be required to make your services available in accordance with the demands of the job and the best interest of patients. 4. For the purpose of ensuring coordinated services, you shall be reporting to the HOD-Internal Medicine and Medical Director or any other person nominated by the management. 5. In consideration of the services rendered by you, you shall be paid a consolidated retainership fee of Rs. 25,000/- (Rupees Twenty Five Thousand only) per month. 6. In case you are required to travel on company's business, the company will make appropriate arrangements, or you will be reimbursed expenses as permissible under the rules of the company. 7. You shall not act in similar, or any capacity, for any other company engaged in a business similar to that of the company. 8. You shall commit to work in the interests of the company and in accordance with its values and philosophy, abiding by the rules, regulations and policies, as applicable. You will also follow the work process, technical standards, protocols and general instructions issued thereof, of the company, as are in force, or amended from time to time. 9. 8. You shall commit to work in the interests of the company and in accordance with its values and philosophy, abiding by the rules, regulations and policies, as applicable. You will also follow the work process, technical standards, protocols and general instructions issued thereof, of the company, as are in force, or amended from time to time. 9. You will not at any time, during the terms of this arrangement or after, without consent in writing of the designated Head of the Hospital, disclose or divulge or make public, except on legal obligations, any information regarding the company's affairs or administration or research carried out, of which you shall hereafter become possessed. 10. This agreement may be terminated by either party upon One month's prior notice or payment of three month's retainer fee in lieu to other party. The notice of termination need not assign any reason therefore. Neither party shall be liable for any damages to the other consequent upon such termination. 11. If at any time, your contact is considered by the company as detrimental to its interest, or in violation of one or more terms of this agreement or the regulations and policies of the company, or you neglect or fail or refuse to carry out the duties assigned to your hereunder, the company may terminate this agreement without notice and without any payment in lieu of notice. 12. You shall upon completion or termination of the engagement hereunder, immediately deliver up to company all correspondence, documents, papers and property belonging to the company which may be in your possession or under your control. You are requested to return the duplicate copy of this letter in confirmation of your acceptance of the above terms and conditions. Looking forward to a mutually beneficial assocation. Yours faithfully. Authorized Signatory I accept and confirm the above terms and condition. Fortis Escorts Hospital April 01,2009 Mr. Murari Lal Sharma Vill-Kherli, Tarf Nooniya, Post Natoj, Kathumar, Alwar (Raj.) Sub:- Appointment Dear Mr. Sharma We have pleasure in appointing you as Staff Nurse-Nursing in Band V3 of the Company, effective April 01, 2009 on the following terms and conditions: 1. You will be entitled to a basic salary of Rs. 3470/- per month and other benefits as applicable to your category of employees, details are given in Annexure 'A'. 2. Sharma We have pleasure in appointing you as Staff Nurse-Nursing in Band V3 of the Company, effective April 01, 2009 on the following terms and conditions: 1. You will be entitled to a basic salary of Rs. 3470/- per month and other benefits as applicable to your category of employees, details are given in Annexure 'A'. 2. It is expected that you will discharge your assigned responsibilities with high standard of performance, quality, integrity, and discipline. 3. You will be initially at Jaipur. However, your services are transferable to any Section/ Department, Location, Office, Associate or Sister Concern or Subsidiary at any place in India or abroad, whether existing today or which may come up in future, at any time at the sole discretion of Management. In such case, you will be governed by the terms and conditions of the services applicable to new placement/location. 4. You will be on probation for a period of six months from the date of your joining. The probation period may be extended for such term as may be considered appropriate by the Management. Upon satisfactory completion of your probation, your services will be confirmed by written order with the Company. 5. During the probationary period and any extension thereof, your services may be terminated on either side by giving one month notice or salary in lieu thereof. However, on confirmation the services can be terminated from either side by giving two-month notice or salary in leu thereof. Upon termination of employment, you will also return all company property, which may, be in your possession. It would be obligatory on your part to get a proper relieving letter from the Management before your services are deemed to be concluded. 6. You shall, while in the services of the company, devote your full time and attention exclusively for the Company's work and responsibilities assigned to you. You shall not engage in any other commercial/business pursuit, either part time or otherwise, for any monetary gains. 7. You shall be obliged to follow the work processes, technical standards, protocols and general instructions issued thereof, and service rules of the Company as in force and/or amended from time to time. 8. You shall automatically retire from the services of the company on attaining the age of 58 years. 9. Your appointment is subject to your being medically sound and remaining medically fit. 10. 8. You shall automatically retire from the services of the company on attaining the age of 58 years. 9. Your appointment is subject to your being medically sound and remaining medically fit. 10. If any information furnished or declaration given by you in regard to your employment to the Company is found to be false or any material information willfully suppressed, your appointment would be liable for termination without any notice or compensation. Please confirm your acceptance of the appointment on the above terms and conditions by signing and returning a duplicate copy of this letter for our records. Yours faithfully, Authorized signatory. Escorts Heart Institute & Research Centre Ltd. July 14, 2007 To Dr. Deepak Yaduvanshi "Park View Vill" 156-A, Ashoka Enclave (Main) Sector-35, Faridabad, Delhi Mathura Highway. Sub:- Appointment Dear Dr. Deepak We have pleasure in a you as Assistant Consultant in our organization effective 14, 2007 on the following terms and conditions: 1. Placement & Compensation You will be placed in the appropriate band/responsibility level of the Company, and will be entitled to compensation (salary and other applicable benefits) as detailed in Annexure 'A'. Compensation will be governed by the rules of the Company on the subject, as applicable and/or amended hereafter. 2. Salary revision Your salary will be reviewed on April 1st of 2008 and then April 1" each year, or at such other time as the Management may decide. Salary revisions are discretionary and will be subject to, and on the basis of effective performance and results. 3. Posting Transfer Your initial posting will be Jaipur. However, your services are liable to be transferred, at the sole discretion of Management, in such other capacity as the company may determine, to any department/section, location, associate, sister concern or subsidiary at any place India or abroad, whether existing today or which may come up in future. In such a case, you will be governed by the terms and conditions of the service applicable at the new placement location. 4. Full time employment Your position is a whole time employment with the Company and you shall devote yourself exclusively to the business and interests of the company. In such a case, you will be governed by the terms and conditions of the service applicable at the new placement location. 4. Full time employment Your position is a whole time employment with the Company and you shall devote yourself exclusively to the business and interests of the company. You will not take up any other work for remuneration (part time or otherwise) or work in an advisory capacity or be interested directly or indirectly (except as shareholder/debenture holder), in any other trade or business during your employment with the company, without permission in writing of the Chief Executive Officer of the Company. You will also not seek membership of any local or public bodies without first obtaining specific permission from Management. 5. Confidentiality You will not, at any time, during the employment or after, without the consent of the Chief Executive Officer disclose or divulge or make public, except on legal obligations, any information regarding the Company's affairs or administration or research carried out, whether the same is confided to you or becomes known to you in the course of your service or otherwise. 6. Intellectual Property If you conceive any new or advanced method of improving designs/processes/formulae/systems, etc. in relation to the business/operations of the Company, such developments will be fully communicated to the company and will be, and remain, the sole right/property of the Company. 7. Responsibilities & Duties Your work in the organization will be subject to the rules and regulations of the organization as laid down in relation to conduct, discipline and other matters. You will always be alive to responsibilities and duties attached to your office and conduct yourself accordingly. You must effectively perform to ensure results. 8. Past Records. If any declaration given, or information furnished by you to the company proves to be false or if you are found to have willfully suppressed any material information, in such cases, you will be liable to removal from services without any notice. 9. Retirement The retirement age is 58 years. You will retire from the employment of the Company at the end of the month in which you attain 58 years of age. 10. Termination of employment Ether side may terminate this contract of employment by giving two months (60 days) notice in writing or salary, in lieu thereof and either party is not bound to give any reason thereof. You will retire from the employment of the Company at the end of the month in which you attain 58 years of age. 10. Termination of employment Ether side may terminate this contract of employment by giving two months (60 days) notice in writing or salary, in lieu thereof and either party is not bound to give any reason thereof. Upon termination of employment you will immediately hand over to the Company all correspondence, specifications, formulae, books, documents, market data, cost data, drawings, affects or records belonging to the Company or relating to its business and shall not retain or make copies of these items. Upon termination of employment you will return all company property, which may be in your possession. 11. Medical Fitness This appointment is subject to your being, and remaining, medically fit. Please confirm your acceptance of the appointment on the above terms and conditions by signing and returning this letter for our records. Yours faithfully Authorized Signatory." 8. Counsel for the appellant has also relied upon the following decisions:- 8.1 In Workmen of Nilgiri Coop. Mkt. Society Ltd. vs. State of Tamil Nadu and Ors. (2004) 3 SCC 514 , the Supreme Court held as under:- 33. Determination of the vexed Questions as to whether a contract is a contract of service or contract for service and whether the concerned employees are employees of the contractors has never been an easy task. No decision of this Court has laid down any hard and fast rule nor it is possible to do so. The question in each case has to be answered having regard to the fact involved therein. No single test - be it control test, be it organisation or any other test - has been held to be the determinative factor for determining the jural relationship of employer and employee. 34. There are cases arising on the borderline between what is clearly an employer-employee relation and what is clearly the independent entrepreneurial dealing. TESTS: 35. This Court beginning from Shivanandan Sharma vs. Punjab National Bank. Ltd. (1955) ILLJ 688 SC and Dharangadhara Chemical Works Ltd. vs. State of Saurashtra and Ors. (1957) ILLJ 477 SC observed that supervision and control test is the prima facie test for determining the relationship of employment. TESTS: 35. This Court beginning from Shivanandan Sharma vs. Punjab National Bank. Ltd. (1955) ILLJ 688 SC and Dharangadhara Chemical Works Ltd. vs. State of Saurashtra and Ors. (1957) ILLJ 477 SC observed that supervision and control test is the prima facie test for determining the relationship of employment. The nature or extent of control required to establish such relationship would vary from business to business and, thus, cannot be given a precise definition. The nature of business for the said purpose is also a relevant factor. Instances are galore there where having regard to conflict in decisions in relation to the similar set of facts, the Parliament has to intervene as, for example, in the case of workers rolling bidis. 36. In a given case it may not be possible to infer that a relationship of employer and employee has come into being only because some persons had been more or less continuously working in a particular premises inasmuch as even in relation thereto the actual nature of work done by them coupled with other circumstances would have a role to play. 37. In V.P. Gopala Rao vs. Public Prosecutor, Andhra Pradesh 1970 Cri LJ 22, this Court said that it is a question of fact in each case whether the relationship of master and servant exists between the management and the workmen and there is no abstract a priori test of the work control required for establishing the control of service. A brief resume of the development of law in this point was necessary only for the purpose of showing that it would not be prudent to search for a formula in the nature of a single test for determining the vexed question. RELEVANT FACTORS: 38. The control test and the organization test, therefore, are not the only factors which can be said to decisive. With a view of elicit the answer, the court is required to consider several factors which would have a bearing on the result : (a) who is appointing authority; (b) who is the pay master; (c) who can dismiss; (d) how long alternative service lasts; e) the extent of control and supervision; (f) the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject. 39. 39. With a view to find out reasonable solution in a problematic case of this nature, what is needed is an integrated approach meaning thereby integration of the relevant tests where for it may be necessary to examine as to whether the workman concerned was fully integrated into the employer's concern meaning thereby independent of the concern although attached therewith to some extent. 40. I.T. Smith and J.C. Wood in 'Industrial Law', third edition, at page 8-10 stated: "In spite of the obvious importance of the distinction between an employee and an independent contractor, the tests to be applied are vague and may, in a borderline case, be difficult to apply. Historically, the solution lay in applying the 'control' test, i.e., could the employer control not just what the person was to do, but also the manner of this doing it if so, that person was his employee. In the context in which it mainly arose in the nineteenth century, of domestic, agricultural and manual workers, this test had much to commend it, but with the increase sophistication of industrial processes and the greater numbers of professional and skilled people being in salaried employment, it soon became obvious that the test was insufficient (for example in the case of a doctor, architect, skilled engineer, pilot, etc.) and so, despite certain attempts to modernise it, it is now accepted that in itself control is no longer the sole test, though it does remain a factor and perhaps, in some cases, a decisive one. In the search for a substitute test, ideas have been put forward of an 'integration' test, i.e. whether the person was fully integrated into the employer's concern, or remained apart from and independent of it. Once again, this is not now viewed as a sufficient test in itself, but rather as a potential factor (which may be useful in allowing a court to take a wider and more realistic view). The modern approach has been to abandon the search for a single test, and instead to take a multiple or 'pragmatic' approach, weighing upon all the factors for and against a contract of employment and determining on which side the scales eventually settle. The modern approach has been to abandon the search for a single test, and instead to take a multiple or 'pragmatic' approach, weighing upon all the factors for and against a contract of employment and determining on which side the scales eventually settle. Factors which are usually of importance are as follows - the power to select and dismiss, the direct payment of some form of remuneration, deduction of PAYE and national insurance contributions, the organisation of the workplace, the supply of tools and materials (though there can still be a labour only sub-contract) and the economic realities (in particular who bears the risk of loss and has the chance of profit and whether the employee could be said to be 'in business on his own account'). A further development in the recent case law (particularly concerning atypical employments) has been the idea of 'mutuality of obligations' as a possible factor, i.e. whether the course of dealings between the parties demonstrates sufficient such 'mutuality for there to be an overall employment relationship. " (See also Ram Singh and Ors. vs. Union Territory, Chandigarh and Ors. (2004) 1 SCC 126 ) 41. In Mersey Docks and Harbour Board vs. Coggins & Griffith Liverpool Ltd. [1947] A.C. 1 Lord Porter pointed out: "Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject-matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. " 42. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract and the person doing the work will not be a servant. (See Ready Mixed Concrete (South East) Ltd. vs. Minister of Pensions and National Insurance, 1 [1968] 2 W.L.R. 775) 43. The decisions of this Court lead to one conclusion that law in this behalf is not static. (See Ready Mixed Concrete (South East) Ltd. vs. Minister of Pensions and National Insurance, 1 [1968] 2 W.L.R. 775) 43. The decisions of this Court lead to one conclusion that law in this behalf is not static. In Punjab National Bank vs. Ghulam Dastagir (1978) ILLJ 312 SC, Krishna Iyer, J. observed "to crystalise criteria conclusively is baffling but broad indications may be available from decisions". 8.2 In Ram Pershad vs. The Commissioner of Income Tax, New Delhi (1972) 86 ITR 122 the Supreme Court held as under:- 7. There is no doubt that for ascertaining whether a person is a servant or an agent, a rough and ready test is, whether, under the terms of his employment, the employer exercises a supervisory control in respect of the work entrusted to him. A servant acts under the direct control and supervision of his master. An agent, on the other hand, in the exercise of his work is not subject to the direct control or supervision of the principal, though he is bound to exercise his authority in accordance with all lawful orders and instructions which may be given to him from time to time by his principal. But this test is not universal in its application and does not determine in every case, having regard to the nature of employment, that he is a servant. A doctor may be employed as a medical officer and though no control is exercised over him in respect of the manner he should do the work nor in respect of the day to day work, he is required to do, he may nonetheless be a servant if his employment creates a relationship of master and servant. Similar is the case of a chauffeur who is employed to drive the car for his employer. If he is to take the employer or any other person at his request from place 'A' to place 'B' the employer does not supervise the manner in which he drives between those places. Such examples can be multiplied. A person who is engaged to manage a business may be a servant or an agent according to the nature of his service and the authority of his employment. Generally it may be possible to say that the greater the amount of direct control over the person employed, the stronger the conclusion in favour of his being a servant. A person who is engaged to manage a business may be a servant or an agent according to the nature of his service and the authority of his employment. Generally it may be possible to say that the greater the amount of direct control over the person employed, the stronger the conclusion in favour of his being a servant. Similarly the greater the degree of independence the greater the possibility of the services rendered being in the nature of principal and agent. It is not possible to lay down any precise rule of law to distinguish one kind of employment from the other. The nature of the particular business and the nature of the duties of the employee will require to be considered in each case in order to arrive at a conclusion as to whether the person employed is servant or an agent. In each case the principle for ascertainment remains the same. 8. Though an agent as such is not a servant, a servant is generally for some purposes his master's implied agent, the extent of the agency depending upon the duties or position of the servant, it is again true that a director of a company is not a servant but an agent inasmuch as the company cannot act in its own person but has only to act through directors who qua the company have the relationship of an agent to its capacity. Managing Director may have a dual capacity. He may both be a Director as well a employee. It is therefore evident that in the capacity of a managing director he may be regarded as having not only the capacity as persona of a director but also has the persona of an employee or an agent depending upon the nature of his work and the terms of his employment. Where he is so employed, the relationship between him as the Managing Director and the Company may be similar to a person who is employed as a servant or an agent for the term 'employed' is facile enough to cover any of these relationships. Where he is so employed, the relationship between him as the Managing Director and the Company may be similar to a person who is employed as a servant or an agent for the term 'employed' is facile enough to cover any of these relationships. The nature of his employment may be determined by the articles of association of a company and/or the agreement if any, under which a contractual relationship between the Director and' the company has been brought about, whereunder the Director is constituted an employee of the company, if such be the case, his remuneration will be assessable as salary Under Section 7. In other words, whether or not a Managing Director is a servant of the company apart from his being a Director can only be determined by the articles of association and the terms of his employment. A similar view has been expressed by the Scottish Court of Session in Anderson vs. James Sutherland (Peter head) Limited [1941] S.C. 203 where Lord Normand at p.218 said : ... the managing director has two functions and capacities. Qua managing director he is a party to a contract with the company, and this contract is a contract of employment'; more specifically I am of opinion that it is a contract of service and not a contract for service. 8.3 In E.S.I.C. Medical Officer's Association vs. E.S.I.C. and Anr. (2014) 16 SCC182 , it has been held as under:- 8. We notice, the medical officers appointed in the various dispensaries/hospitals are entrusted with the task of examining and diagnosing patients and prescribing medicines to them and they are basically and mainly engaged in professional and intellectual activities to treat patients. This Court in Heavy Engineering Corporation Ltd. vs. Presiding Officer, Labour Court and Ors. (1996) 11 SCC 236 examined the question as to whether General Duty Medical Officers Grade II were performing supervisory functions. In that case, the medical officer was appointed as General Duty Medical Officer Grade II by the Corporation and was posted in the First-Aid post for providing emergency medical services in case of accidents, etc. during the shifts. On termination of the services, an industrial dispute was raised by the medical officer that his services have been terminated in breach of Section 25F of the Act. during the shifts. On termination of the services, an industrial dispute was raised by the medical officer that his services have been terminated in breach of Section 25F of the Act. The Court observed that the duties of a doctor required that he performs supervisory functions in addition to treating the patients would mean that he had been employed in a supervisory capacity. Paragraph 12 of the judgment has some relevance and is extracted hereinbelow: 12. The aforesaid facts, in our opinion, clearly go to show that Respondent 2 could not be regarded as a workman under Section 2(s) of the Act as he was working in a supervisory capacity. While it is no doubt true that Respondent 2, along with the other doctors, used to work in shifts nevertheless during the time when he was in the shift he was the sole person in-charge of the first-aid post. He had, under him male nurse, nursing attendant, sweeper and ambulance driver who would naturally be taking directions and orders from the in-charge of the first-aid post. These persons obviously could not act on their own and had to function in the manner as directed by Respondent 2, whenever he was on duty. They were, in other words, under the control and supervision of the Respondent. When a doctor, like the Respondent, discharges his duties of attending to the patients and, in addition thereto supervises the work of the persons subordinate to him, the only possible conclusion which can be arrived at is that the Respondent cannot be held to be regarded as a workman under Section 2(s) of the Act. Later, this Court in Muir Mills (supra) had occasion to consider whether a legal Assistant falls within the definition of "workman" under the U.P. Industrial Disputes Act, 1947. In that judgment in paras 38 to 40, this Court held as follows: 38. Furthermore, if we draw a distinction between occupation and profession we can see that an occupation is a principal activity (job, work or calling) that earns money (regular wage or salary) for a person and a profession is an occupation that requires extensive training and the study and mastery of specialised knowledge and usually has a professional association, ethical code and process of certification or licensing. Classically, there were only three professions: ministry, medicine and law. Classically, there were only three professions: ministry, medicine and law. These three professions each hold to a specific code of ethics and members are almost universally required to swear to some form of oath to uphold those ethics, therefore "professing" to a higher standard of accountability. Each of these professions also provides and requires extensive training in the meaning, value and importance of its particular oath in the practise of that profession. 39. A member of a profession is termed a professional However, professional is also used for the acceptance of payment for an activity. Also a profession can also refer to any activity from which one earns one's living, so in that sense sport is a profession. 40. Therefore, it is clear that Respondent 1 herein is a professional and never can a professional be termed as a workman under any law. 10. We may, in this respect, also refer to an earlier judgment of this Court in A. Sundarambal vs. Govt. of Goa, Daman and Diu (1988) 4 SCC 42 , wherein this Court held that a teacher employed by an educational institution, who imparts education (whether at primary, secondary, graduate or post-graduate level) cannot be called as a "workman" since imparting education which is the main function of a teacher, is in the nature of a noble mission or a noble vocation, which cannot be considered as skilled or unskilled manual work or supervisory, technical or clerical work. 11. We are of the view that a medical professional treating patients and diagnosing diseases cannot be held to be a "workmen" within the meaning of Section 2(s) of the ID Act. Doctors' profession is a noble profession and is mainly dedicated to serve the society, which demands professionalism and accountability. Distinction between occupation and profession is of paramount importance. An occupation is a principal activity related to job, work or calling that earns regular wages for a person and a profession, on the other hand, requires extensive training, study and mastery of the subject, whether it is teaching students, providing legal advice or treating patients or diagnosing diseases. Persons performing such functions cannot be seen as a workman within the meaning of Section 2(s) of the ID Act. We are of the view that the principle laid down by this Court in A. Sundarambal's case (supra) and in Muir Mills's case (supra) squarely applies to such professionals. Persons performing such functions cannot be seen as a workman within the meaning of Section 2(s) of the ID Act. We are of the view that the principle laid down by this Court in A. Sundarambal's case (supra) and in Muir Mills's case (supra) squarely applies to such professionals. That being the factual and legal position, we find no reasons to interfere with the judgment of the High Court. The SLP lacks merit and is dismissed accordingly. 8.4 In Indian Medical Association vs. V.P. Shantha and Ors. (1995) 6 SCC 651 , the Supreme Court held as under:- 40. Shri Salve has urged that the relationship between a medical practitioner and the patient is of trust and confidence and, therefore, it is in the nature of a contract of personal service and the service rendered by the medical practitioner to the patient is not 'service' under Section 2(1)(o) of the Act. This contention of Shri Salve ignores the well recognised distinction between a 'contract of service' and a 'contract for services'. (See: Halsbury's Law of England, 4th Edn., Vol. 16, para 501 and Dharangadhara Chemical Works Ltd. vs. State of Saurashtra (1957) ILLJ 477 SC. A 'contract for services' implies a contract whereby one party undertakes to render services e.g. professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion. (See : Oxford Companion to Law, p. 1134). A 'contract of service' implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. (See : Stroud's Judicial Dictionary, 5th Edn., p. 540; Simmons vs. Heath Laundry Co. (1910) 1 K.B. 543 and Dharangadhara Chemical Works (supra) at p. 159). We entertain no doubt that Parliamentary draftsman was aware of this well accepted distinction between "contract of service" and "contract for services" and has deliberately chosen the expression 'contract of service' instead of the expression 'contract for services', in the exclusionary part of the definition of 'service' in Section 2(1)(o). The reason being that an employer cannot be regarded as a consumer in respect of the services rendered by his employee in pursuance of a contract of employment. The reason being that an employer cannot be regarded as a consumer in respect of the services rendered by his employee in pursuance of a contract of employment. By affixing the adjective 'personal' to the word "service" the nature of the contracts which are excluded is not altered. The said adjective only emphasizes that what is sought to be excluded is personal service only. The expression "contract of personal service" in the exclusionary part of Section 2(1)(o) must, therefore, be construed as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression "service". 41. It is no doubt true that the relationship between a medical practitioner and a patient carries within its certain degree of mutual confidence and trust and, therefore, the services rendered by the medical practitioner can be regarded as services of personal nature but since there is no relationship of master and servant between the doctor and the patient the contract between the medical practitioner and his patient cannot be treated as a contract of personal service but is a contract for services and the service rendered by the medical practitioner to his patient under such a contract is not covered by the exclusionary part of the definition of 'service' contained in Section 2(1)(o) of the Act. 8.5 In Commissioner of Income Tax vs. Apollo Hospitals International Ltd. (2013) 359 ITR 78 (Guj.) wherein Gujarat High Court held as under:- 5. From the facts on record it emerged that the assessee hospital had engaged 53 full time resident doctors who were the employees and in respect of payment to them the tax was being deducted at source under section 192 of the Act and was regularly paid. The professional tax and provident fund amounts were also deducted from their salaries. The 15 doctors in question against whom the AO concluded that there was a shortfall of TDS by virtue of noncompliance of section 192 were another set of doctors giving their services at the hospital. The facts on record before the Tribunal further indicated that the employee-doctors were eligible for gratuity and were covered under the provident fund scheme, they were eligible for casual leaves and sick leaves and were governed by General Service Rules. The facts on record before the Tribunal further indicated that the employee-doctors were eligible for gratuity and were covered under the provident fund scheme, they were eligible for casual leaves and sick leaves and were governed by General Service Rules. As against that, the 15 consultant doctors in question were not entitled to such service benefits and further they were required to take professional indemnity insurance on their own. It was on the basis of such relevant factual aspects the CIT(A) took the view that payments made to them were professional fees for which the assessee had rightly deducted tax under section 194J of the Act. 6.1. As discussed above, the Tribunal took into account all the relevant aspects from the material on record to arrive at a conclusion that the consultant doctors were not getting salary, but the payment to them was in nature of professional fees. The contract with them by the assessee was one of contract 'for service' and 'not of service'. Therefore, tax was being rightly deducted at source under section 194J and section 192 of the Act had no application. The findings and conclusions of the Tribunal are proper. There is no error, of appreciation. We are in agreement with the same. No substantial question of law arises for consideration. 8.6 In The Commissioner of Income Tax (TDS) vs. Grant Medical Foundation (2015) 375 ITR 49 (Bom), it has been held as under :- 36. However, we are in agreement with Mr. Bajpai that the foundation or basis on which the Revenue and the Assessing Officer proceeded was whether the categories of doctors and which were before the Assessing Officer could be seen and termed as an employee or servant of the assessee. About the category of doctors and who draw fixed pay without any other benefit but like an ordinary employee entitled to medical and provident fund or retiremental benefits, there is no dispute. 37. In relation to other category of doctors there was a dispute. The Assessing Officer and the Commissioner concluded that though these categories of doctors had a fixed remuneration and variable pay but their terms and conditions of employment or service would be crucial and material. In relation to two doctors, namely, Dr. Zirpe and Dr Phadke, the contracts were taken as sample and scrutinized minutely. The Assessing Officer and the Commissioner concluded that though these categories of doctors had a fixed remuneration and variable pay but their terms and conditions of employment or service would be crucial and material. In relation to two doctors, namely, Dr. Zirpe and Dr Phadke, the contracts were taken as sample and scrutinized minutely. Upon such a scrutiny the Tribunal noted that it cannot be said that these doctors were employees. If the first part of the Commissioner's order indicates as to how these persons or doctors were not treated by the assessee as regular employees for want of benefits like provident fund, retiremental benefit, etc., then, merely because they are required to spend certain fixed time at the hospital, treating fixed number of patients at the hospital, attend them as out patients and Indoor patients does not mean that a employer-employee relationship can be culled out or inferred. We do not see how Mr. Gupta can fault such conclusions by relying upon decisions which have been rendered in cases of doctors having a fixed pay and tenure. In that case, before us, there is no dispute. Even the assessee accepts the position that they are the employees of the assessee trust. 38. However, in cases of other doctors the contract would have to be read as a whole. It would have to be read in the backdrop of the relationship and which was of engagement for certain purpose and time. The skill of the doctors and their expertise were the foundation on which an invitation was extended to them to become part of the assessee which is a public charitable trust and rendering medical service. If well known doctors and in specified fields are invited to join such hospitals for a fee or honorarium and there are certain terms drawn so as to understand the relationship, then, in every case such terms and the attendant circumstances would have to be seen and in their entirety before arriving at a conclusion that there exists a employer employee relationship. The Tribunal found that the Commissioner was in error. We also agree with the Tribunal because in the Commissioner's order in relation to these two doctors the findings are little curious. The Tribunal found that the Commissioner was in error. We also agree with the Tribunal because in the Commissioner's order in relation to these two doctors the findings are little curious. The commissioner referred to the tests in paragraph 9 of the order at running page 62 and at internal page 14 in paragraph 10 the Commissioner concluded that doctors drawing fixed remuneration are full time employees. However, in relation to the second category of doctors drawing fixed plus variable pay with written contracts the terms and conditions of Dr Zirpe and Dr Phadke have been referred and the Tribunal concluded that neither of the doctors was entitled to provident fund or any terminal benefits. Both were free to carry on their private practice at their own clinic or outside Hospitals but beyond the Hospital timings. Both doctors treated their private patients from the hospital premises. All of which could be seen as indicators that they were not employees but independent professionals (see paragraph 14). However, they were found to be sharing a overwhelming number of attributes of employees. In relation to that the contract seems to have been bifurcated or split up or read in bits and pieces by the Commissioner. The Leave Rules were held to be applicable in case of Dr Phadke and there were fixed timing and fixed remuneration. Now, it is inconceivable that merely because for a certain period of time or required number of hours the doctors have to be at Ruby Hall Clinic means they will not be entitled to visit any other hospital or attend patients at it necessarily. The anxiety appears is not to inconvenience the patients visiting and seeking treatment at the Ruby Hall Clinic. If specialized team of Doctors, Experts and Experienced in the field are part of the Assessee's Clinic, then, their availability at the clinic has to be ensured. Now, the trend is to provide all facilities under one roof so that patients are not compelled to go to several clinics or Hospitals. Hence, a diagnostic center with laboratories and clinics, consultation rooms, rooms with beds for indoor treatment, critical care, treatment for kidney, lever, heart, brain, stomach ailments are facilities available at clinics and hospitals. The management, therefore, insists that such facilities, which are very costly and expensive are utilized to the optimum and the investment of time, money and infrastructure is not wasted. The management, therefore, insists that such facilities, which are very costly and expensive are utilized to the optimum and the investment of time, money and infrastructure is not wasted. Hence, fixed timings and required number of hours and such stipulations are incorporated in contracts so that they are of binding nature. The Doctor or Expert Medical Practitioner is then obliged to denote his time and energy to the clinic whole heartedly. If handsome remuneration, fee is prescribed in return of ready-made facilities even for professionals, then, such insistence is not necessarily to treat highly qualified professionals as servants. It is a relationship of mutual trust and confidence for the larger interest of the patient being served efficiently. From this contract or any clause therein no such conclusion could have been arrived at. We do not see how there was any express bar from working at any other hospital and if the contracts would have been properly and carefully scrutinized. Merely because their income from the hospital is substantial does not mean that ten out of the fourteen criteria evolved by the Commissioner have been satisfied. The Assessing Officer and the Commissioner, therefore, were in complete error. We have also perused these contracts and copies of which are annexed to the paper book being part of the order of the Assessing Officer. We find that the communications which have been relied upon, namely, 25th November, 2008 and 14th May, 2009 do not contain any admission by the assessee. All that the assessee admitted is the existence of a written contract and with the above terms. Those terms have also been perused by us minutely and carefully. We do not find that any stipulations regarding working hours, academic leave or attachments would reveal that these doctors are employees of the assessee. In fact, Dr Zirpe was appointed as a Junior Consultant on three years of contract. He was paid emoluments at fixed rates for the patients seen by him in the OPD. That he would not be permitted to engage himself in any hospital or nursing home on pay or emoluments cannot be seen as an isolated term or stipulation. In case of Dr Uday Phadke, we do not find any such stipulation. He was paid emoluments at fixed rates for the patients seen by him in the OPD. That he would not be permitted to engage himself in any hospital or nursing home on pay or emoluments cannot be seen as an isolated term or stipulation. In case of Dr Uday Phadke, we do not find any such stipulation. In these circumstances, the only agreement between the parties being that certain private patients or fixed or specified number seen by the consultant could be admitted to the assessee hospital. That would not denote a binding relationship or a master servant arrangement. A attractive or better term to attract talented young professionals and too in a competitive world would not mean tying down the person or restricting his potential to one set up only. The arrangement must be looked in its entirety and on the touch stone of settled principles. The Tribunal was right in reversing the findings of the Assessing Officer and the Commissioner. There was a clear perversity and contradiction in the findings, particularly pointed out by us hereinabove. 39. In relation to other doctors where the remuneration was variable and there was a written contract or no written contract the Commissioner and the Tribunal did not commit any error at all. Both have referred extensively to the materials on record. We are not in agreement with Mr. Gupta that the Tribunal's order is in any way incomplete or sketchy or cryptic. The settled principles and rendered in coordinate Bench decisions have been referred only to emphasize the tests which have been evolved from time to time. It is only in the light of such tests and their applicability to individual cases that matters of this nature must be decided. This approach of the Tribunal did not require it to render elaborate or lengthy findings and when it agreed with the Commissioner. We do not find even in the case of Dr Sumit Basu the Commissioner or the Tribunal committed any error. Merely because of his stature he was ensured and guaranteed a fixed monthly payment. That would not make him an employee of the hospital. This cannot be seen as a stand alone term. There are other terms and conditions based on which the entire relationship of a consultant or professional and visiting the assessee's hospital had been determined. Once again, no general rule can be laid down. That would not make him an employee of the hospital. This cannot be seen as a stand alone term. There are other terms and conditions based on which the entire relationship of a consultant or professional and visiting the assessee's hospital had been determined. Once again, no general rule can be laid down. Nowadays, Private Medical Care has become imperative. Public Hospitals cannot cater to the increasing population. Hence, Private Hospitals are established and continue to be formed and set up day by day. The quality of care, service, attention, on account of the financial capacity, therein has forced people of ordinary means also to visit them. Since specialists are in demand because of the life style diseases that consultants and doctors prefer these hospitals. Sometimes they hop from one medical centre or clinic to another throughout the day. Retaining them for fixed days and specified hours requires offering them friendly terms and conditions. In such circumstances, we do not think that the Tribunal committed any error of law apparent on the face of the record in confirming the findings rendered by the first Appellate Authority. The findings of fact from paragraph 16 onwards in the Commissioner's order on ground no. 2 and from paragraph 20 onwards on ground no. 3 do not suffer from any serious legal infirmity. The appreciation and appraisal of the factual materials is not such as would enable us to interfere in our limited jurisdiction. Our further appellate jurisdiction is limited. 40. As a result of the above discussion, we need not advert to the entire case law in the field. Suffice it to note that the Revenue relied on the judgments which were rendered in cases where the terms and conditions denoting employee and employer relationship included a fixed pay or monthly remuneration only. For all these reasons we are of the opinion that the questions of law termed as substantial and framed as above would have to be answered against the Revenue and in favour of the Assessee. 41. Consequently, the appeal fails and is dismissed with no order as to costs. 42. The only argument that is seriously canvassed by Mr. Gupta is that confirmation of the findings rendered by the Tribunal would mean concurrence with its conclusion that professionals can never be appointed as employees or there can never be master servant relationship. 41. Consequently, the appeal fails and is dismissed with no order as to costs. 42. The only argument that is seriously canvassed by Mr. Gupta is that confirmation of the findings rendered by the Tribunal would mean concurrence with its conclusion that professionals can never be appointed as employees or there can never be master servant relationship. This is apprehended by the Revenue because several eminent professionals are rendering full time services as medical officers, medical practitioners and teachers at Civil and Government hospitals. They are also part of hospitals, privately managed or managed in public private partnership (PPP). Our findings or the Tribunal's order being upheld does not mean that we have laid down any absolute rule or principle of general application. In such cases, depending upon the attending facts and circumstances, the terms and conditions of the engagement, a finding can be arrived at that there is a master servant or an employer-employee relationship. It can be arrived at in cases where it is found by the Income-Tax Authorities that though there is not a regular process of recruitment and appointment but the contract would indicate that the doctor/professional was appointed as an employee and on regular basis. All such and other courses in law are always open. With this additional clarification, we dismiss this appeal. 8.7 In Commissioner of Income Tax (TDS) vs. IVY Health Life Sciences Pvt. Ltd.(2016) 380 ITR 242 (P & H), Punjab & Haryana High Court held as under:- 15. In the present case, it has been categorically recorded by the Commissioner of Income-tax (Appeals) that the contract for service implies a contract whereby one party undertakes to render services, i.e., professional or technical services whereas the contract of service implies relationship of master and servant and involves an obligation to obey the orders in the work to be performed and also as to its mode and manner of performance. The professional doctors are not entitled for leave travel concession, concession in medical treatment of relatives, provident fund, leave encashment and retirement benefits like gratuity. They are required to follow some defined procedure to maintain uniformity in action and some administrative discipline but this does not mean that they have become employees of the hospital. Further, the Department had not taxed the payments received by any of the doctors from the assessee under the head "Income from salary". They are required to follow some defined procedure to maintain uniformity in action and some administrative discipline but this does not mean that they have become employees of the hospital. Further, the Department had not taxed the payments received by any of the doctors from the assessee under the head "Income from salary". Concurring with the findings recorded by the Commissioner of Income-tax (Appeals), it has been held by the Tribunal that there does not exist the employer-employee relationship between the assessee and the persons providing professional services. It has been further recorded that on consideration of the agreement in its entirety vis-a-vis the case law relied upon by the assessee, it is evident that it is not a case of employer employee relationship between the assessee and the doctors. It was noticed thus (page 192 of 20 ITR (Trib): "We have heard the rival submissions, facts of the case and the relevant records. The brief facts of the case are that the appellant-company is running a hospital, known as Ivy Hospital at Mohali. The Department conducted a TDS inspection under section 133A of the Act at the business premises of the assesseeappellant on September 28, 2011. During the course of such inspection and assessment proceedings under section 201(1)/201(1A) of the Act, it was noticed by the Assistant Commissioner of Incometax (TDS) that the hospital is running different OPDs, apart from the indoor patients' treatment. The procedure of treating the patients in the OPD is that when a patient comes for the treatment in the hospital's OPD, he deposits a consultation fee for the particular medical department in which he wants to consult, at the cash counter of the hospital and he is given a receipt for it and then he consults the doctor to whom he wants to consult. The concerned doctor prescribes the treatment on the hospital's letter pad. If the patient is to be admitted in the hospital for the indoor treatment, then he is admitted under his treatment. The working days and hours of the doctors working in the OPD of the hospital are fixed and as per the contract between these doctors and the hospital they are not allowed to do their own practice or work with another hospital during the period for which they are engaged attended the hospital on call. The working days and hours of the doctors working in the OPD of the hospital are fixed and as per the contract between these doctors and the hospital they are not allowed to do their own practice or work with another hospital during the period for which they are engaged attended the hospital on call. However, during the course of TDS inspection, it was noticed that the assessee-deductor was deducting the tax at source of the both types doctors under section 194J as professional charges, whereas the payments made to the doctors who are regularly attached with the hospital, are required to be treated as salary and tax is also required to be deducted under section 192 of the Act. The Assessing Officer was of the view that the payments made to the doctors who were regularly attached with the hospital, were required to be treated as salary and taxes are required to be deducted under section 192 of the Act. Consequently, the Assessing Officer issued a show-cause notice to treat the person responsible (hereinafter referred to as 'the PR') as the assessee in default under section 201(1) of the Act for short deduction of tax at source from the payments made to the consultant doctors and charged interest under section 201(1A) of the Act. On appreciation of the written submissions filed by the appellant before the Assessing Officer, it was concluded by him that there existed employer-employee relationship in the hospital. Consequently, the Assessing Officer concluded the issue as 'during the financial year 2008-09, the assessee had deducted tax of Rs. 11,67,399.40 under section 194J of the Act, whereas the tax of Rs. 27,98,169.69 under section 192 of the Act was required to be conducted. Therefore, the assessee is liable to pay a difference of Rs. 16,30,770 as tax of Rs. 7,40,121 under section 201(1A) of the Act as per the calculation enclosed as annexure 1 to this order. Accordingly, the total payable tax demand comes to Rs. 23,70,891 for the assessment year 2009- 10'. 6. Similarly, for the assessment 2010-11, the Assessing Officer worked out the total payable tax demand at Rs. 75,60,672 (difference net tax deducted at Rs. 62,50,560 and interest of Rs. 12,50,112 under section 201(1A) of the Act. 7. Accordingly, the total payable tax demand comes to Rs. 23,70,891 for the assessment year 2009- 10'. 6. Similarly, for the assessment 2010-11, the Assessing Officer worked out the total payable tax demand at Rs. 75,60,672 (difference net tax deducted at Rs. 62,50,560 and interest of Rs. 12,50,112 under section 201(1A) of the Act. 7. Learned Commissioner of Income-tax (Appeals), on appreciation of the factual matrix of the Act and case law, cited by the appellant, adjudicated the issue in favour of the assessee-appellant, as per the following finding: '5. I have considered the submission field by the learned counsel. I have also gone through the memorandum of understandings between the appellant company and the professional doctors. The various clauses of the memorandum of understandings need to be examined in the light of the criteria laid down by the courts to determine whether the doctors attached to the appellant-hospital are employees of the hospital. The test which is uniformly applied in order to determine whether a particular relationship amounts to employer-employee relationship is the existence of a right of control in respect of the manner in which work is to be done by the person employed. The nature and the extent of control which is requisite to establish the relationship of the employee and employer varies from business to business. 8. A bare perusal of the case law relied upon by the appellant and submissions made in the synopsis reveals that there does not exist employer-employee relationship between the assessee-appellant and the persons providing professional services. On consideration of the agreement in its entirety vis-a-vis the case law relied upon by the assessee-appellant, it is evident that it is not a case of employer employee relationship between the assessee-appellant and the doctors. Therefore, having regard to the detailed analysis and findings of the Commissioner of Income-tax (Appeals) on the issue in question, it cannot be said that the findings of the learned Commissioner of Income-tax (Appeals) suffer from any infirmity. In view of this, findings of the Commissioner of Income tax (Appeals) are upheld." 16. Additionally, we may notice the terms of the agreement on the basis of which the Assessing Officer had issued a show cause notice to the assessee which read thus: "(i) The second party shall be associated exclusively with M/s. Ivy Hospital as full time consultant and shall not associate himself with any other hospital. Additionally, we may notice the terms of the agreement on the basis of which the Assessing Officer had issued a show cause notice to the assessee which read thus: "(i) The second party shall be associated exclusively with M/s. Ivy Hospital as full time consultant and shall not associate himself with any other hospital. (ii) the second party shall be paid professional charges for services rendered by him in Ivy Hospital as under with a minimum guarantee of per month subject to TDS deductions as per the Act, the minimum guarantee amount shall be paid to the second party for a period of 12 months from the date of joining. The same shall be revised at the end of 12 months. (a) 70 per cent, of the OPD charges (b) Visiting charges in ward/private room as mutually settled between the two parties. (c) 15 per cent, of the investigation done of Ivy Hospital. (iii) the second party shall not do practice at any other place and would be associated exclusively with Ivy Hospital. The second party shall not operate or admit patient in any other hospital except at Ivy Hospital." In our opinion, the Assessing Officer was not right in concluding on the combined reading of the above stipulations that the income of the doctors was salary. It nowhere suggests that there exists relationship of employer-employee between the assessee and the said doctors, rather it is a pointer to the contrary. 8.8 In The Commissioner of Income Tax and Ors. vs. Manipal Health Systems Pvt. Ltd. (2015) 375ITR 509 (Karn), it has been held as under:- 11. The main points considered by the Revenue on the relationship of employer and employee are: (a) payment of remuneration (b) employer's control and supervision (c) service rules of the company binding on the doctors (d)relationship of master and servant (e) bar from private practice 12. We have examined the terms of the contract entered into between the assessee-Company and the Doctors and the reasons given by the assessee to treat the arrangement between the Doctors and the assessee-Company in the nature of consultancy. 1. The earnings available to the doctor are dependent on patients coming to hospitals to get the consultancy service. 2. If in a month the number of patients is zero they do not get any income. 1. The earnings available to the doctor are dependent on patients coming to hospitals to get the consultancy service. 2. If in a month the number of patients is zero they do not get any income. In this regard month on month earnings statement of all doctors for the financial years 2005-06 and 2006-07 were furnished. 3. All the doctors are not available in the hospital throughout the day. Their timings are fixed, based on patients coming to hospital. 4. The idea of putting conditions that "doctor cannot have private practice or attend to another hospital" is to discourage them from transferring patients to another hospital. 13. To decide the relationship of employer and employee we have to examine whether the contract entered into between the parties is a 'contract for service' or a 'contract of service'. There are multi-factor tests to decide this question. Independence test, control test, intention test are some of the tests normally adopted to distinguish between 'contract for service' and 'contract of service'. Finally, it depends on the provisions of the contract. Intention also plays a role in deciding the factor of contract. The intention of the parties can also determine or alter a contract from its original shape and status if both parties have mutual agreement. In the instant case, the terms of contract ipso facto proves that the contract between the assessee-Company and the doctors is of 'contract for service' not a 'contract of service'. The remuneration paid to the doctors depends on the treatment to the patients. If the number of patients is more, remuneration would be on a higher side or if no patients, no remuneration. The income of the doctors varies, depending on the patients and their treatment. All these factors establish that there is no relationship of employer and employee between the assessee-Company and the doctors. 14. One such agreement referred to by the Tribunal i.e., para-7 of the agreement dated 12.09.2007 entered into between the Assessee Company and Dr. Isaac Mathew speaks in unequivocal terms that "This agreement is executed on a principal to principal basis notwithstanding the fact that the company may extend to the consultant certain benefits that are available to the employees. The consultant shall not be deemed to be an employee of the company". 15. 'Consultancy charges' in the ordinary sense means providing of expert knowledge to a third party for a fee. The consultant shall not be deemed to be an employee of the company". 15. 'Consultancy charges' in the ordinary sense means providing of expert knowledge to a third party for a fee. It is a service provided by a professional advisor. These consultant Doctors are rendering professional services as and when they are called upon to attend the patients. Profession implies any vocation carried by an individual or a group of individuals requiring predominantly intellectual skill, depending on individual characteristic of person(s) pursuing with the vocation, requiring specialized and advance education or expertise. Consultancy charges are paid to the Doctors towards rendering their professional skill and expertise which are purely in the nature of professional charges. Assessee Company has no control over the Doctors engaged by them with regard to treatment of patients. 16. Mere providing of non-competition clause in the agreement shall not invalidate the nature of profession. It is common that the doctors are rendering their professional services as visiting doctors in different hospitals. Imposing a condition of bar to private practice is to make use of the expertise, skill of a doctor exclusively to the assessee-company i.e., to get the attention and focus of the professional skill and expertise only to the patients of the assessee-company and to discourage doctors from transferring patients to their own clinics or any other hospital. This condition imposed by the assessee-company would not alter the nature of professional service rendered by the doctors. Tribunal also held that none of the doctors are entitled to gratuity, PF, LTA and other terminal benefits. Considering all these aspects at length a detailed, well reasoned order is passed by the Tribunal on this issue which we may not find fault with. 17. It is also pertinent to note that the doctors have filed their return of income for the relevant assessment years showing the income received from the assessee-Company as professional income and the same is said to have been accepted by the department. 18. High Court of Gujarat, in the case of CIT (TDS) vs. Apollo Hospitals International Ltd. reported in (2013 (359) ITR 78) (Gujarat) has taken a similar view that the consultant doctors were not getting salary, but the payment to them was in the nature of professional fees liable to deduction under Section 194G and Section 192 of the Act had no application. 19. 19. We are in agreement with the findings of the Tribunal on this issue. Accordingly, we answer the first substantial question of law in favour of the assessee and against the revenue. 8.9 In The Commissioner of Income Tax, TDS and Ors. vs. Teleradiology Solutions Pvt. Ltd. (2016) 67 taxmanncom 346 (Karnataka), it has been held as under:- 3. It appears after the order of Assessment Officer when the matter was carried before the Commissioner of Income-Tax (Appeals) at paragraph-5, after considering the earlier decision of the Tribunal in case of Income Tax Officer vs. Elbit Diagnostics Ltd. [IT Appeal Nos. 500 to 504 (Bang.) of 2008, dated 26-11-2008] the following comparative chart in tabular form is reflected on para- 5.1 which reads as under: Sl. No. Facts of the present case Facts in the case of M/s Elbit Medical Diagnostics Ltd Other aspects such as fixed amount of payment every month, performance based incentive, leave facility, working hours, selection of doctors through interviews, availability of doctors through a predetermined time schedule etc are only measures to ensure that there would be no interruption in provision of medical services to patients, hospitals etc. The method of sanctioning leave, giving certain incentives to doctors etc was not considered by the Hon'ble Bangalore Bench to be relevant factors in determining the current issue. 4. Thereafter Commissioner of Income Tax (Appeals) found that the said matter is covered by the decision of the Tribunal in case of M/s. Elbit Medical Diagnostics Ltd., and further confirmed by this Court, the appeal was allowed. 8.10 In Commissioner of Income Tax (TDS) vs. Yashoda Super Speciality Hospital (2014) 270 CTR 457, it has been held as under:- 2. The learned Tribunal as well as the Commissioner of Income-tax (Appeals), on facts and on examining the document agreement of engagement of the consultant doctors by the assessee, found that there is no relationship of employer and employee. After examining the agreement and various terms and conditions, it was found that the doctors are not administratively controlled or managed by the assessee and they are free to come at any point of time as far as their attendance is concerned and treat the patients. In the agreement, there is no provision for payment of any provident fund and gratuity. The only clause in the agreement is that the doctors cannot take up any other assignment. In the agreement, there is no provision for payment of any provident fund and gratuity. The only clause in the agreement is that the doctors cannot take up any other assignment. Reading the agreement as a whole, both the authorities below observed that the existence of one prohibitory clause, as stated above, does not change the basic character of the relationship between the assessee and the doctors concerned. On facts, the Tribunal found that there is no employer and employee relationship and their payment cannot be treated to be salaries and, as such, deduction cannot be made under section 192 of the Income-tax Act. We are of the view that the application of law depends upon the appreciation of facts. This court in exercise of the jurisdiction under section 260A of the Income-tax Act, cannot re-appreciate the facts or substitute its own appreciation when appreciation of facts of both the authorities below was found to be rational and possible on given fact. The appreciation reached by both the authorities below has to be accepted by this court. On the given facts, this court can only examine whether the law has been applied properly or not. On a careful reading of the impugned judgment and order, we are of the view that the law has been correctly applied. Therefore, we do not find any question of law involved in this matter. 9. Counsel for the respondent Mr. Mathur has taken us to the view taken view by the tribunal in majority and contended that the said view is required to be accepted considering that 'Salary and 'Wages' are defined under section 17 of the Income Tax Act and Section 2 (vi) of Payment of Wages Act provides as under:- Section 17 of the IT Act "Salary", "perquisite" and "profits in lieu of salary" defined. 17. 17. For the purposes of sections 15 and 16 and of this section,- (1) "salary" includes- (i) wages; (ii) any annuity or pension; (iii) any gratuity ; (iv) any fees, commissions, perquisites or profits in lieu of or in addition to any salary or wages; (v) any advance of salary ; (vi) any payment received by an employee in respect of any period of leave not availed of by him; (vi) the annual accretion to the balance at the credit of an employee participating in a recognised provident fund, to the extent to which it is chargeable to tax under rule 6 of Part A of the Fourth Schedule; (vii) the aggregate of all sums that are comprised in the transferred balance as referred to in sub-rule (2) of rule 11 of Part A of the Fourth Schedule of an employee participating in a recognised provident fund, to the extent to which it is chargeable to tax under sub-rule (4) thereof; (viii) the contribution made by the Central Government 10 or any other employer] in the previous year, to the account of an employee under a pension scheme referred to in section 80CCD;" Payment of Wages Act, 1936 Wage means all remuneration (whether by way of salary, allowance or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or work done in such employment, and includes:- any remuneration payable under any award or settlement between the parties or orders of a court any remuneration in respect of overtime work or holidays or any leave period any additional remuneration payable under the terms of employment (whether called a bonus or by any other name) any sum which by the reason of the termination of employment of the person employed is payable under any law, contract or instrument which is provide for the payment of such sum, whether with or without deduction, but does not provide for the time within which the payment is to be made. any sum to which the person employed is entitled any under shceme framed under any law for the time being in forced. any sum to which the person employed is entitled any under shceme framed under any law for the time being in forced. does not include:- any bonus (whether under a scheme of profit sharing of otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a court; value of any house accommodation, or of the supply of water, light, medical assistance or other amenity or any service excluded from the computation of wages by a general or special order or (the appropriate Government); any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon; any traveling allowance or the value of any traveling concession; any some paid to the employed person to defray special expenses entailed on him by the nature of his employment; or any gratuity payable on the termination of employment in cases other than those specified in sub clause (d). 9.1 He relied upon the decision of Supreme Court in Justice Deoki Nandan Agarwala vs. Union of India (UOI) & Anr. 237ITR 872 wherein it has been held as under:- There can be no doubt that prior to the said amendment Parliament could not have legislated on Judges salaries, but it is a far cry to conclude therefrom that the salary of a Judge is not taxable under the Income Tax Act. The subject of the salary of a High Court and Supreme Court Judge and the subject of tax on income are altogether different and the conclusion that is sought to be drawn is quite unacceptable. The salary of a Judge of a High Court and the Supreme Court is income and is taxable by Act of Parliament in just the same manner as is the income of any other citizen. It is contended qua the fourth question that, in any event, a Judge of a High Court and the Supreme Court has no employer and, therefore, what he receives is not salary; accordingly, what he receives as remuneration is not taxable under the head of salary under the Income Tax Act. To our mind, there is a misconception here. It is true that High Court and Supreme Court Judges have no employer, but that, ipso facto, does not mean that they do not receive salaries. To our mind, there is a misconception here. It is true that High Court and Supreme Court Judges have no employer, but that, ipso facto, does not mean that they do not receive salaries. They are constitutional functionaries. Articles 125 and 221 of the Constitution deal with the salaries of Supreme Court and High Court Judges respectively and expressly state that what the Judges receive are salaries. It is not possible to hold, therefore, that what Judges receive are not salaries or that such salaries are not taxable as income under the head of salary. 9.2 He also relied upon the decision of Supreme Court in Central Board of Direct Taxes and ors. vs. Aditya V. Birla (1988) 170 ITR 137 (SC) wherein Supreme Court held as under:- "The respondent applied to the Central Government in India for its approval of his employment with the That Company under the agreement for the purpose of securing the benefit conferred by section 80RRA of the Income Tax Act, 1961 (hereinafter called 'the Act'). On June 8, 1979 the Government informed the respondent that it was unable to approve the employment with the That Rayon Company Limited, Bangkok, as per the terms and conditions contained in the agreement dated 5th May, 1978 for the purpose of Section 80RRA of the Act as the section, according to Government contemplated rendering of service outside India in the status of an 'employee'. It was further stated that it was seen that the status of the respondent under the foreign employer was that of a 'consultant' and not of an 'employee'. Therefore, the remuneration contemplated under Section 80RRA was from an employer and would not be applicable to the instant case of the respondent, according to the Government. Thereafter it appears, after hearing the respondent, the Government by its letter dated 17th February, 1981 observed that the benefit of Section 80RRA of the Act could not be given to the respondent for the reason stated in that letter. Was the Government right in the view it took, is the question here? The learned Single Judge of the High Court quashed the communication refusing to accord approval and directed the Government to reconsider the application of the respondent. There was a Letters Patent Appeal before the Division Bench of the High Court. Was the Government right in the view it took, is the question here? The learned Single Judge of the High Court quashed the communication refusing to accord approval and directed the Government to reconsider the application of the respondent. There was a Letters Patent Appeal before the Division Bench of the High Court. The Division Bench found no reason to interfere with the view expressed by the learned Single Judge and accordingly the appeal was dismissed. Aggrieved thereby the appellant who was the respondent before the trial court has come up to this Court. We are concerned in this appeal with the construction of Section 80RRA of the Act. 80 RRA. (1) Where the gross total income of an individual who is a citizen of India includes any remuneration received by him in foreign currency from any employer (being a foreign employer or an Indian concern) for any service rendered by him outside India, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the individual, a deduction from such remuneration of an amount equal to fifty per cent thereof: Provided that where the individual renders continuous service outside India under or for such employer for a period exceeding thirty six months, no deduction under this section shall be allowed in respect of the remuneration for such service relating to any period after the expiry of the thirty-six months aforesaid. (2) The deduction under this section shall be allowed (i) in the case of an individual who is or was, immediately before undertaking such service, in the employment of the Central Government or any State Government, only if such service is sponsored by the Central Government; (ii) in the case of any other individual, only if he is a technician and the terms and conditions of his service outside India are approved in this behalf by the Central Government or the prescribed authority. Explanation: For the purposes of this section - (a) "foreign currency" shall have the meaning assigned to it in the Foreign Exchange Regulation Act, 1973 (46 of 1973): (b) foreign employer" means, (i) the Government of a foreign State; or (ii) a foreign enterprise or (iii) any association or body established outside India; (c) "technician" means a person having specialised knowledge and experience in (i) constructional or manufacturing operations or mining or the generation or distribution of electricity or any other form of power;. or (ii) agriculture, animal husbandry, dairy farming, deep sea fishing or ship building; or (iii) public administration or industrial or business management; or (iv) accountancy; or (v) any field of natural or applied science including medical science or social science; or (vi) any other field which the Board may prescribe in this behalf, who is employed in a capacity in which such specialised knowledge and experience are actually utilised. We are unable to accept this contention. It has been specifically made clear that remuneration due should be chargeable under the head "Salaries" for the services rendered as a technician in Section 10(6)(vii). Indisputably, the sum concerned in this appeal, being fee, was remuneration in the sense being 'amount paid in lieu of services rendered'. The sum in question was received in foreign currency. There is no dispute as to that. The only question is whether the sum was received from 'any employer'. The other requirement is that the sum should be received for the services rendered outside India. There is no dispute as to that. The only question that requires consideration in the background of indisputable facts in this case is whether the sum received by the respondent was from 'an employer'. In other words, whether That Company was the employer of the respondent. On behalf of the revenue it was submitted by Mr. Ahuja that it was only as a counter part of Section 10(6) (via) and that the section should be so considered properly. Mr. Palkhiwala appearing for the respondent pointed out the object of Section 80RRA of the Act was manifest to encourage, firstly earning of foreign exchange by India, secondly, bringing that currency by Indian nationals from abroad to India and thirdly, to improve the status of the Indians abroad and increasing the market of Indian technician. It appears to us to be plausible object in the present socio-economic context. It appears to us to be plausible object in the present socio-economic context. We find that the amplitude of the expressions "employee" and "employer" covers the cases of consultant or technician. We find in the scheme of the section nothing to warrant any exception as contended for by the revenue. If we read the section with the object of the section in view as suggested by Mr. Palkhiwala then there is no warrant to restrict the meaning in the manner canvassed by the revenue before us. Mr. Ahuja, however, drew our attention to the objects appearing in clause 31 of the Finance Bill 1975 which later on became the Act. We find nothing in clause 31 to suggest a restricted meaning as canvassed by Shri Ahuja. The relevant portion of clause 31 reads as follows: 31. Tax relief in respect of remuneration received from foreign employees by Indian technicians, etc.-At present, Indian technicians, etc., who work for a short period during a financial year with a foreign Government or a foreign enterprise are liable to Indian tax if they remain "resident in India" for tax purposes in that year, on the whole of the remuneration received by them from the foreign employer, without any allowance in respect of expenditure incurred by them out of such remuneration for meeting higher living costs and other essential expenditure in foreign countries. To relieve this hardship, the Bill seeks to make a provision in the Income tax Act for allowing a deduction in the computation of the taxable income, of 50 per cent of the remuneration received by them from a foreign Government or a foreign enterprise or any association or body established outside India". 11. We find nothing to warrant a restricted construction as canvassed by Mr. Ahuja. We were also referred to the speech of the Hon'ble Minister introducing the Bill before the Parliament, where the Hon'ble Minister, inter alia stated as follows: There are at present certain income-tax exemption limits applying to salaried assessees relating to house rent allowance and leave travel concessions. These are being liberalised. Indian technicians employed abroad are also proposed to be given some tax relief. 12. These are being liberalised. Indian technicians employed abroad are also proposed to be given some tax relief. 12. Shri Ahuja contended that it was only to encourage salaried employees who were going abroad and the cost of living was so high abroad to encourage them to get an exemption from tax on the salary earned abroad working as a technician that this provision was introduced. But this does not indicate that any limitation was intended to be confined only to the salaried employee and not extended to any technician or consultant employed abroad for the period stipulated in the section. We find that there is no warrant in the section to restrain the expression "remuneration" received from a foreign employee only to the salary received by an employee. In our opinion, employment as a technician for the purpose indicated by Shri Palkhiwala could also be an object of the Act and in such a case the fee received by consultant or technician would also come within the purview of the In Aiyar 'The Lexicon. 1940 Ed. at page 387 it has been stated that an employer is one who employs, one who engages or keeps men in service, one who uses or enjoys the service of other persons for pay or salary. The words 'employer' or 'employee' are used not in any technical sense. 13. In Shri Chintaman Rao and Anr. vs. The State of Madhya Pradesh 1958 Cri LJ 803 of the report, it was observed that the concept of employment involved three ingredients: (1) employer (2) employee and (3) the contract of employment. The employee is one who works for other for hire. The employer is one who employs the services of other persons. In the context of this act, therefore, the expression 'employee' will include a consultant or a technician employed by the foreign Company because he would be working for other for hire. It is true that the respondent may serve more than one master. A man may in certain circumstances serve two masters; very often he does serve many. The expression "to employ" has been considered in Ellis vs. Ellis & Co. It is true that the respondent may serve more than one master. A man may in certain circumstances serve two masters; very often he does serve many. The expression "to employ" has been considered in Ellis vs. Ellis & Co. [1905] 1 K.B. 324 and does not mean generally to find actual employment; it rather means to retain and pay a person whether employed or not but if employed then to be employed in the work only in respect of which contract is made. "Medical advisers may be employed at a salary to be ready in case of illness; members of theatrical establishments in case their labour should be needed; household servants in performance of their duty when their masters wish; in these and other similar cases the requirement of actual service is distinct from the employment by the party employing". In an agreement to "retain and employ", "employ" means only to 'retain' in the service 'and is mere tautology'. See in this connection, Stroud's Judicial Dictionary, 4th Edition, Vol. 2 at page 893. The expression, however, must depend upon the context of the particular provision in which the expression appears. It was held in England that an engineer appointed by a local authority to supervise the execution of works, but not subject to the local authority's supervision, is nevertheless an 'employee' within the meaning of Section 40(1) of the Local Government Superannuation Act 1937, in Morren vs. Swinton and Pendlebury B.C. [1965] 1 W.L.R. 576. In Chambers 20th Century Dictionary "employ" has been indicated to mean to occupy the time or attention of "employment" means an act of employing. In the Concise Oxford Dictionary "employee" means a person employed for wages. "Employ" means use of services of person. It follows, therefore, that it comprehends whole time servant or part time engaged. It is significant that Section 80RRA of the Act uses the expression "remuneration" and not salary to be entitled to deduction. In the aforesaid view of the matter we see no warrant to restrict the meaning of the expression "remuneration" to only salary received by an employee abroad. The literal meaning is clear, we need not bother any more for the intention or the purpose. The intention, in our opinion, is writ large. In the aforesaid view of the matter we see no warrant to restrict the meaning of the expression "remuneration" to only salary received by an employee abroad. The literal meaning is clear, we need not bother any more for the intention or the purpose. The intention, in our opinion, is writ large. In principle also we are unable to find any rationale or the reason for the distinction sought to be made on behalf of the revenue." 9.3 He has also relied upon the decision of the authority for Advance Rulings reported in In Re: Max Mueller Bhavan (2004) 190 CTR (AAR) 450 wherein it has been held as under :- "9. In Chandi Prasad Singh vs. State of U, P., AIR 1956 SC 149 , the hon'ble Supreme Court pointed out (page 153): "The distinction between the two (servant and agent) is thus stated in Halsbury's Laws of England, Volume 22, page 113, para 192 : 'A servant acts under the direct control and supervision of the master, and is bound to conform to all reasonable orders given to him in the course of his work.... An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal'." 10. The test to ascertain whether relationship of employer and employee exists between the parties is laid down by the hon'ble Supreme Court in Dharangadhara Chemical Works Ltd. vs. State of Saurashtra, AIR 1957 SC 264 ; [1956-57] 11 FJR 439.The court was considering the question, who could be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Speaking for the Bench of four learned judges, Bhagwati J., observed (headnote of AIR 1957 SC 264 ) : "The prima facie test for the determination of relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work. The nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition. The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer. A person can be a workman even though he is paid not per day but by the job. The fact that rules regarding hours of work, etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal, is no deterrent against holding the persons to be workmen within the meaning of the definition if they fulfil its requirement." 12. From the above discussion, it is clear that in the case of a contract of service, the employer not only orders/requires what is to be done but also directs as to how it shall be done, whereas in a contract for service, the master can only require as to what is to be done. 14. Chapter XVII of the Act embodies provisions for collection and recovery of tax by various methods like deduction at source, collection at source, advance payment of tax, collection and recovery. Section 192 which is contained in the said Chapter enjoins deduction of tax at source (referred to in this ruling as IDS) in the case of income of the payee being chargeable under the head "Salaries". Sub-section (1) of Section 192 enjoins that any person responsible for paying any income chargeable under the head "Salaries" shall, at the time of payment, deduct income-tax on the amount payable at the average rate of income-tax computed on the basis of the rates in force in the financial year in which the payment is made, on the estimated income of the assessee under this head for that financial year. Where a person is employed simultaneously under more than one employer, Sub-section (2) of Section 192 is attracted. Where a person is employed simultaneously under more than one employer, Sub-section (2) of Section 192 is attracted. It provides that where, during the financial year, an assessee is employed simultaneously under more than one employer, or where he has held successively employments under more than one employer, he has to furnish particulars to the person responsible for making the payment being one of the said employers at the choice of the employee, such details of income under the head "Salaries" due or received by him from other employer/employers ; and the tax deducted at source therefrom in the prescribed form and thereupon the employer to whom the aforesaid particulars are furnished shall take into account the details so furnished for the purposes of making deduction as postulated in Subsection (1) thereof." 9.4 He contended that the view taken by the tribunal is just and proper and the same isnot required to be interfered with. 10. We have heard counsel for the parties. 11. Before proceeding with the matter, it will not be out of place to mention that the assessee is running a hospital within State of Rajasthan and they have entered agreement with three different doctors. The question which came up for our consideration is whether benefit of 194J and 192 is to be given where TDS is required to deducted. 12. Counsel for the appellant rightly contended that in the agreement which was entered between the parties, there is no restriction of private practice whereas in case of service/ appointment order, there is prohibition for grant of benefit which are required to be given under the law and are granted to the employees whereas in the case of retainership it is only an honorary or professional agreement is entered between the parties which may be analogous to the major service conditions but both the contract are different. One is contract as an employee and the other contract is service for honorary or expert service not as a employee which was entered between the parties. Therefore, question which came for our consideration is whether payment which was made to the professional is salary or professional fees. 13. One is contract as an employee and the other contract is service for honorary or expert service not as a employee which was entered between the parties. Therefore, question which came for our consideration is whether payment which was made to the professional is salary or professional fees. 13. Taking into consideration the case law which has been cited by both the sides, the judgment of Karnataka High Court (supra) which has been relied upon by the counsel for the appellant and after taking into consideration that all the judgments and the rulings cited by both the sides were considered in the said judgment and the issue was decided as under:- "The contention of the learned counsel appearing for the assessee that CIT had issued an order under Section 10(23- C)(via) of the Act, by virtue of which the assessee is not liable to deduct TDS under Section 194-I as the recipient itself is exempted from levy of tax, is not acceptable for the reasons that the said order was issued by the CIT, Panaji for the assessments year 2005-06 to 2007-08 subject to the compliance of conditions (i) to (vi) specified therein. The said conditional order shall not absolve the assessee from the deduction of TDS liability. The compliance/non-compliance of the exemption conditions by the recipient in advance cannot be foreseen in advance by the assessee-Company. Moreover, TDS liability under Section 194-I is not dependent on the tax liability/entitlement to exemption of the recipient. Irrespective of the tax exemption/tax liability of the recipient the assessee has to discharge the TDS liability under Section 194(1). No certificate under Section 197 of the Act is furnished by the assessee to establish that the recipient is exempted from the tax liability." 14. Again same question came up for consideration in other decision of Karnataka High Court where after considering the judgment in Elbit Medical Diagnostics Ltd., the court has come to the conclusion that retainer in service are professional service and issue was answered in favour of the assessee. 15. Taking into consideration the evidence on record, only one view can be taken and since the view taken by the tribunal is also contrary, if two views are possible, the view which in favour of assessee is to be taken and in view thereof in the present case, the issues are answered in favour of the assessee and against the department. 16. 16. The appeals stand allowed.