JUDGMENT

Akil Kureshi, J. - This Appeal has filed by Revenue to challenge the judgment of the Income Tax Appellate Tribunal raising following questions of law for our consideration :

"(i) Whether, on the facts and in the circumstances of the case and in law, the Hon''ble ITAT was justified in holding that provisions of Section 194C are applicable, and not the provisions of section 194J as held by the Assessing Officer, for deduction of tax at source from payment towards Annual Maintenance Contracts in respect of various hospital equipments, without appreciating that the maintenance of specialized machines in hospitals calls for skilled professional/technical engineers, and hence such maintenance charges are in the nature of fees for technical services within the meaning of section 194J of the Act?

(ii) Whether, on the facts and in the circumstances of the case and in law, the Hon''ble ITAT was justified in holding that the payments made by the assessee to Full Time Consultant Doctors fall within the purview of section 194J, and not under section 192 of the Act as held by the Assessing Officer, for the purpose of deduction of tax at source, without appreciating that there exists employer-employee relationship between the assessee company and these consultant doctors and the payment is in the nature of salary and the tax is deductible under section 192 of the Act?"

2. We notice that the revenue has presented additional questions, however, these questions are limbs of the above noted two questions and therefore not separately considered.

3. Question No.(i) pertains to the revenue''s objection to the assessee deducting tax at source under section 194C of the Income Tax Act, 1961 (for short "the Act") while making payment to the pest control agency instead of Section 194J of the Act. The CIT (Appeals) and the Tribunal have concurrently held that such a payment was not for any technical services provided by the agency. We do not find any error . This question therefore not considered.

4. Question No.(ii) arises out of the revenue''s contention that the Respondent Trust, running a hospital, while availing the services of doctors, had entered into employer-employee relationship, and therefore, deduction of tax at source while making payments to the doctors had to be on the basis that the same was the salary paid by the employer to the employee. The Tribunal held that there was no employer-employee relationship between the hospital and the doctors.

5. An identical issue came up for consideration before us in the case of revenue''s appeal against this very assessee. While dismissing the Revenue''s Appeal No.1294 of 20l6, in this respect, we had made the following observations :

6. The Assessing Officer did not accept such a contention, upon which the Assesseee filed an Appeal. The Commissioner (Appeals) who also rejected the Appeal, upon which the issue reached the Tribunal in an Appeal filed by the Assessee. The Tribunal examined the terms of engagement of the doctors by the Asseseee Trust and came to a conclusion that the issues were squarely covered in favour of the Assessee by virtue of the judgment of the Division Bench of this court in the case of Commissioner of Income Tax vs. Grant Medical Foundation reported in, 375 ITR 049 . Thereupon the Revenue has filed this Appeal.

7. In Grant Medical Foundation''s case (Supra) this Court examined at length the issue as to when the engagement of the services of the doctors can be seen to be in the nature of employment. In this context, after referring to the terms of engagement of the doctors, this Court held and observed as under :-

(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