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. 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:-