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Assistant Commissioner of Income-tax (TDS), Chandigarh v/s Fortis Healthcare Ltd.


Company & Directors' Information:- FORTIS HEALTHCARE LIMITED [Active] CIN = L85110PB1996PLC045933

Company & Directors' Information:- FORTIS HEALTHCARE LIMITED [Active] CIN = L85110DL1996PLC076704

Company & Directors' Information:- CHANDIGARH HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2011PTC033072

Company & Directors' Information:- R G S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110PB2004PTC047381

Company & Directors' Information:- R G S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2004PTC027689

Company & Directors' Information:- P. H. HEALTHCARE PRIVATE LIMITED [Active] CIN = U33110MH2010PTC208651

Company & Directors' Information:- B G P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232GJ2007PTC050417

Company & Directors' Information:- D R HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110GJ2006PTC048008

Company & Directors' Information:- FORTIS CORPORATION PRIVATE LIMITED [Strike Off] CIN = U65900MH2012PTC237043

Company & Directors' Information:- M J HEALTHCARE PRIVATE LIMITED [Active] CIN = U93090PN2008PTC132455

Company & Directors' Information:- S J HEALTHCARE PRIVATE LIMITED [Active] CIN = U85190MH2005PTC153435

Company & Directors' Information:- G J HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110PB1998PTC021049

Company & Directors' Information:- I M HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232CH2010PTC032454

Company & Directors' Information:- C S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110GJ2012PTC070018

Company & Directors' Information:- M M HEALTHCARE LIMITED [Active] CIN = U74899DL1988PLC034339

Company & Directors' Information:- A L B HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85110UP2002PTC026786

Company & Directors' Information:- S B M HEALTHCARE (INDIA) PRIVATE LIMITED [Active] CIN = U33112DL2005PTC140703

Company & Directors' Information:- S A HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85100OR2014PTC018365

Company & Directors' Information:- AND HEALTHCARE LIMITED [Active] CIN = U51909PB2017PLC046446

Company & Directors' Information:- D. S. HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232WB2007PTC115617

Company & Directors' Information:- B N HEALTHCARE PRIVATE LIMITED [Active] CIN = U15412AS2000PTC006258

Company & Directors' Information:- P AND B HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U24230GJ2013PTC075056

Company & Directors' Information:- A AND R HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239DL1999PTC102404

Company & Directors' Information:- K. N. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85320RJ2018PTC061003

Company & Directors' Information:- G A S HEALTHCARE PRIVATE LIMITED [Active] CIN = U74999BR2018PTC038700

Company & Directors' Information:- J. R. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85191UP2013PTC054982

Company & Directors' Information:- M A P H HEALTHCARE PRIVATE LIMITED [Under Process of Striking Off] CIN = U85100WB2010PTC144870

Company & Directors' Information:- N. C. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85191DL2007PTC164437

Company & Directors' Information:- N Y HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230GJ2010PTC063348

Company & Directors' Information:- H 4 HEALTHCARE PRIVATE LIMITED [Active] CIN = U15100MH2021PTC353283

Company & Directors' Information:- D. B. HEALTHCARE PRIVATE LIMITED [Active] CIN = U33205MH2014PTC253439

Company & Directors' Information:- K S V HEALTHCARE PRIVATE LIMITED [Active] CIN = U85195HR2011PTC043767

Company & Directors' Information:- N M HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110MH2000PTC125392

Company & Directors' Information:- T K HEALTHCARE (INDIA ) PRIVATE LIMITED [Strike Off] CIN = U85190MH2003PTC139346

Company & Directors' Information:- A R HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2013PTC034820

Company & Directors' Information:- I P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239DL2003PTC121211

Company & Directors' Information:- A 2 Z HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100DL2010PTC208860

Company & Directors' Information:- A P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230MH1999PTC122520

Company & Directors' Information:- K Y O S HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U51397HP2010PTC031280

Company & Directors' Information:- Z F HEALTHCARE PVT. LTD. [Active] CIN = U29295MH2006PTC164255

Company & Directors' Information:- K. B. B. K. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110RJ2013PTC041465

Company & Directors' Information:- T.H.E. HEALTHCARE COMPANY PRIVATE LIMITED [Strike Off] CIN = U33111MH2012PTC229451

Company & Directors' Information:- J S B HEALTHCARE PRIVATE LIMITED [Active] CIN = U74120MH2013PTC248848

Company & Directors' Information:- J S D HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC046578

Company & Directors' Information:- S V T HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85100TZ2009PTC015287

Company & Directors' Information:- A N S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100HP2011PTC031745

Company & Directors' Information:- J M HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230CH2007PTC030943

Company & Directors' Information:- P R HEALTHCARE PRIVATE LIMITED. [Strike Off] CIN = U24231DL2003PTC120123

Company & Directors' Information:- R S M HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U24232DL2005PTC136255

Company & Directors' Information:- N T HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100DL2012PTC241304

Company & Directors' Information:- R A HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85190DL2009PTC188221

Company & Directors' Information:- G & G HEALTHCARE PRIVATE LIMITED [Active] CIN = U51397HR2015PTC057293

Company & Directors' Information:- P D HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230GJ2004PTC045131

Company & Directors' Information:- L. V. G. HEALTHCARE PRIVATE LIMITED [Active] CIN = U24233GJ2006PTC047749

Company & Directors' Information:- S H G HEALTHCARE PVT LTD [Strike Off] CIN = U85110WB1989PTC047231

    IT Appeal Nos. 296, 297, 649 & 650 (Chd.) of 2015

    Decided On, 14 January 2016

    At, Income Tax Appellate Tribunal Chandigarh

    By, THE HONOURABLE MR. BHAVNESH SAINI
    By, JUDICIAL MEMBER & THE HONOURABLE MR. MS. RANO JAIN
    By, ACCOUNTANT MEMBER

    For the Appellant: R.M. Mehta, Advocate. For the Respondent: Manjit Singh, DR.



Judgment Text

Rano Jain, Accountant Member

1. These four appeals appeal filed by the Revenue are directed against the separate orders of learned Commissioner of Income Tax (Appeals)-2, Chandigarh dated 20.1.2015, 20.1.2015, 27.4.2015 and 27.4.2015 for assessment years 2010-11, 2011-12, 2012-13 and 2013-14 respectively. The appeals before the CIT (Appeals) were against the order of the Assessing Officer made under section 201(1) & 201(1A) of the Income Tax Act, 1961 (in short 'the Act').

2. Since the facts and circumstances are identical in all the appeals, the same were heard together and are being disposed off by this consolidated order for the sake of convenience. The decision given in ITA No.296/Chd/2015 for assessment year 2010-11 shall apply mutatis mutandis to all the appeals.

ITA No.296/Chd/2015 :

3. Briefly, the facts of the case are that the assessee is running a hospital under the name and style of Fortis Healthcare Ltd. at Mohali. The TDS inspection under section 133A of the Income Tax Act, 1961 (in short 'the Act') was carried out at the business premises of the assessee as on 20.4.2012. The assessee had deducted tax at source in respect of payments to doctors appointed on retainership basis under section 194J of the Act by treating the payments as professional charges. The Assessing Officer was of the view that the payments made to these doctors were required to be treated as salary and taxes were required to be deducted under section 192 of the Act. The assessee submitted before the Assessing Officer that there does not exist employer and employees relationship between the assessee and these doctors, therefore, TDS has to be deducted under section 194J of the Act. Reliance was placed on the order of the Hyderabad Bench of I.T.A.T. in the case of Dy. CIT v. Yashoda Super Speciality Hospital[2011] 44 SOT 87 (Hyd.)(URO), in the case of ITO v. Apollo Hospitals International Ltd. [2014] 64 SOT 302/[2011] 9 taxmann.com 95 (Ahd. Trib) and that of I.T.A.T., Chandigarh Bench in the case of Dy. CITv. Ivy Health Life Sciences (P.) Ltd. [2014] 146 ITD 486/[2013] 31 taxmann.com 236. The Assessing Officer rejected all the contentions of the assessee and also stating that the case of Ivy Health Life Sciences (P.) Ltd. (supra) was not acceptable to the Revenue and the appeal against the same is pending before the Hon'ble Punjab & Haryana High Court, worked out the tax and interest liability under section 201(1) and 201(1A) of the Act and created the demand against the assessee.

4. Before the learned CIT (Appeals), detailed submissions were made by the assessee, again referring to various clauses of the agreements between the doctors and the assessee and reliance was also placed on the judgments which were earlier placed before the Assessing Officer. After considering the submissions of the assessee, the learned CIT (Appeals) held that to determine whether particular relationship amounts to employer and employee relationship, the existence of a right of control in respect of the manner in which work is to be done by the person employed is very important. He also distinguish between 'contract for service' and 'contract of service'. He analyzed the various clauses of the agreement with the doctors and held that there does not exist any employer and employee relationship. The learned CIT (Appeals) also mentioned that the Assessing Officer ought to have considered the issues of case of the I.T.A.T., Chandigarh Bench in the case of Ivy Health Life Sciences (P.) Ltd. (supra) on merits rather than summarily rejecting the reliance placed by the assessee. In this way, the learned CIT (Appeals) allowed the appeal of the assessee.

5. Aggrieved by this order of the learned CIT (Appeals), the Revenue has come up in appeal before us, raising following grounds of appeal :

"1. That the Ld, CIT(A), Chandigarh has erred in law in deleting the addition made by the AO on the ground that the AO was not right in concluding that there existed an employer-employee relationship between the Hospital and the professional doctors and in treating the PR as assessee in default u/s 201(1) of the Act for short deduction of tax at source by taking the amounts to be u/s 192 and not u/s 194J and in charging interest u/s 201(1A) of the Act, on the following grounds:-

(i) The Ld, CIT(A), Chandigarh has relied upon the following cases laws given by the Counsel of the assessee:-

(a) DCIT v. Yashoda Super Speciality Hospital [2010] 33 TTJ 17 (HYD), ITAT Hyderabad Bench, 'B'

(b) ITO v. Apollo Hospitals International Ltd., ITA No.3363/Ahd/2008 A.Y.2007-08.

(c) DCIT v. Ivy Health Life Sciences Pvt. Ltd., in ITA No.731 & 732/Chd/2012.

The facts of the case laws cited by the assessee are different from the present case, as the doctors engaged in the above Hospitals were part-time consultants whereas the doctors in the present ease were full time consultants engaged by the Hospital and as per the agreements signed between the Hospital and the doctors were exclusively meant to work for the assessee hospital and were not permitted to do their own private practice or with any other organization.

(2) The Ld. CIT(A), Chandigarh has also not appreciated the facts established by the AO that the facts of the cases (case laws) quoted by the assessee were totally different from the case in hand, and from the (terms and conditions of the written agreements between the Hospital and the (doctors it stands proved that the Hospital Authorities had full control over the doctors as their working hours & working days were fixed by the employer and they were also supposed to do the other works related to the hospital activities as and when required. From this it is clear that there existed an employer-employee relationship between the hospital and doctors.

(3) That the appellant craves for permission to add, delete or amend the grounds of appeal before or at the time of hearing of appeal."

6. The learned D.R. relied on the order of the Assessing Officer, specifically mentioning the grounds of appeal raised before us, he tried to distinguish the facts of the present case with that of the cases relied on by the assessee. Further, he placed reliance on the judgment of the Hon'ble Supreme Court in the case ofPadmasundara Rao (Decd.) v. State of Tamil Nadu [2002] 255 ITR 147 for the proposition that while interpreting the provisions, the Court only can interpret the law and cannot legislate it. The Legislative intent is of prime matter and in the present case, one has to go behind what is apparent and to find out that whether there exists a relationship of master and servants between the assessee and these doctors on retainership basis.

7. The learned counsel for the assessee relied on the order of the learned CIT (Appeals). He stated that the learned CIT (Appeals) has taken pains to state at length why there does not exist any employer and employees relationship between the assessee and these doctors. The reliance was placed on the judgments which were placed before the lower authorities. It was stated at Bar that the order of the I.T.A.T., Chandigarh Bench in the case of Ivy Health Life Sciences (P.) Ltd. (supra), which was relied on by the Assessing Officer as well as by the learned CIT (Appeals) has hence been confirmed by the Hon'ble Punjab & Haryana High Court in CIT (TDS) v. Ivy Health Life Sciences (P.) Ltd. [2015] 236 Taxman 292/63 taxmann.com 362. A copy of the judgment was also placed on record. Relying on these judgments, it was pleaded that the order of the learned CIT (Appeals) be confirmed.

8. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. The undisputed facts of the case are that the assessee has engaged three types of doctors i.e. (i) employed doctors (on pay rolls), (ii) empanelled doctors and, (iii) retainers. The only dispute is with regard to retainers, in which case the Assessing Officer found that the payment made to these retainers should be treated as salary and consequently, tax has to be deducted under section 192 of the Income Tax Act, 1961 (in short 'the Act') instead of section 194J of the Act, which the assessee has deducted. On perusal of the order of the Assessing Officer made under section 201 of the Act, we find that the Assessing Officer has raised at page 5, para 6 of his order seven objections based on which he has held that these doctors are being made payment of salary. The first objection raised by the Assessing Officer is with regard to the clause of agreement that the retainer doctors shall be associated exclusively with the assessee as full time consultant and shall not associate himself with any other hospital. The point No.(v) is also related to this point No.(i) only, whereby it has been objected by the Assessing Officer that the retainers are barred from engagement with any other organization engaged in a similar business. On perusal of the agreement with these retainer doctors filed before us in the Paper Book, we see that there is a clause at point No.8 in this agreement which reads as under :

"8. You shall not act in a similar, or any capacity, for any other company engaged in a business similar to that of the company."

9. The explanation of the assessee in this regard has all along been that there is no bar on retainer consultants undertaking any professional assignment or to have independent practice and the only bar is to join any other similar company. Even the learned CIT (Appeals) has considered this argument of the assessee in a very positive perspective in the sense that these doctors are not barred from having their own practice and barring them to join any other similar organization is just to avoid shifting of patients to other places, also this bar itself does not create employer and employee relationship between the assessee and the retainer doctors.

10. At point No.(ii), the Assessing Officer stated that the retainer doctors are bound to work from time to time in accordance with the requirements of the hospital and patients and in the best interest of the management. From the perusal of this condition, we do not understand as to how the Assessing Officer infers that by imposing such a condition the relationship between the doctors and the assessee becomes that of employer and employee. This is a common clause, provided in such agreements in order to protect the interest of the assessee hospital and to provide service to the patients as per the work culture in the hospital.

11. The point raised by the Assessing Officer at No.(iii) is with regard to the fact that the retainers are duty bound to participate in all academic activities, such as CMEs, conferences, seminars, publications of articles undertaken by the hospital and as advised by the hospital management from time to time. From this contention also, it cannot be inferred that the relationship is that of the employer and employee.

12. At point No.(iv), the Assessing Officer referred to the submission of the assessee that the retainers are engaged only for short duration, whereas it is seen that the retainership is offered for a period ranging from 4 years to 2 years. In this regard, we see that the retainership agreements are renewable agreements and can be renewed on agreement by both the parties. There is nothing wrong in this kind of arrangement since if the assessee hospital finds the services of the doctors to be appropriate, the agreement can be renewed. Just because the association between the assessee and the doctors is a long term association, it cannot be said that the relationship between the assessee and the doctors is that of employer and employees.

13. The point No.(vi) raised by the Assessing Officer is with regard to the condition that the retainers may develop or create either individually or jointly with company any original concepts, ideas, plans, designs, presentations, data base, floppies, products etc. but as per the clauses of the agreement these creations shall be treated as sole and exclusive property of the company and the retainers shall not claim to have any legal title or interest in any such creations at any point of time. Even on perusal of this clause we do not see how the Assessing Officer can infer that the payments made by the assessee to these doctors are in the nature of salary. Once the person is hired for some specific purpose in order to provide quality services to the patients and to protect the interest of the assessee hospital, this kind of condition imposed is very common.

14. We see that some of the objections taken by the Assessing Officer are on basic and general conditions laid down in the retainership agreement which do not in any way infer that the payment is salary in nature. The learned CIT (Appeals) has very appropriately dealt with these objections of the Assessing Officer in his order and given a finding that by these types of conditions, it does not make the retainer doctors employees of the assessee.

15. We are also in agreement with the findings given by the learned CIT (Appeals) that since all these recipient doctors' receipts have been taxed as professional receipts in the hands of doctors and not as income from salary, in a way, the Department has accepted the position that these doctors are not employees of the hospital.

16. The Assessing Officer while framing the order has also distinguished the cases relied on by the assessee. Even in the grounds of appeal raised by the Revenue before us, it has been very specifically stated that the cases relied on by the assessee are distinguishable on facts. We now advert to analyze whether the facts of these cases are applicable to the assessee or not. The first case is that of Yashoda Super Speciality Hospital case (supra). This case is relied on by the assessee as in this case, the doctors were required to work only for the assessee and cannot do any practice elsewhere. It has been held by the Hyderabad Bench of the Tribunal that there is no prohibition in law to engage services of a professional exclusively for a particular hospital and thus by not allowing the doctors to work elsewhere, it does not infer that the relationship is that of the master and servant. In the present case also, the retainer doctors are not allowed to join any similar company, which fact does not make the payment made to them as salary in nature.

17. The second case relied on by the assessee is that of Apollo Hospitals International Ltd. (supra) for the proposition that the consultant doctors engaged by the assessee hospital were receiving fixed salary and guarantee money and are not entitled to any allowance or benefit. In such a circumstance, payments were held to be subject to deduction under section 194J and not under section 192 of the Act. In the present case also, the retainer doctors are not provided with any allowance or benefit in the form of retirement benefit, gratuity, PF or any other allowances etc. Therefore, the facts of these cases are also applicable to the present case.

18. A very heavy reliance was placed on the order of the Chandigarh Bench of the Tribunal in the case ofIvy Health Life Sciences (P.) Ltd. (supra). The Assessing Officer himself had stated in his order that this case was under the same Assessing Officer as that of the current assessee. However, since the decision of the I.T.A.T., Chandigarh Bench is not acceptable to the Revenue and an appeal has been filed before the Hon'ble Punjab & Haryana High Court, he did not apply the facts of the said case to the present case. We also observe that the said case has not been discussed on facts by the Assessing Officer in his order. The learned CIT (Appeals) is correct in holding that the Assessing Officer ought to have considered the issue on merits rather than summarily rejecting the reliance placed by the assessee. During the course of hearing before us, it was stated that this order of the I.T.A.T., Chandigarh Bench was later on affirmed by the Hon'ble Punjab & Haryana High Court in Ivy Health Life Sciences (P.) Ltd.'s case (supra). We have perused the order of the I.T.A.T., Chandigarh Bench as well as that of the Hon'ble Punjab & Haryana High Court in the case of Ivy Health Life Sciences (P.) Ltd.'s case (supra) and we see that the facts of present case are similar to that in the case of Ivy Health Life Sciences (P.) Ltd. (supra) and the order being that of jurisdiction High Court, it is binding on all the lower authorities.

19. Apart from these findings given in the order of the Assessing Officer, we have also gone independently to the terms and conditions in the sample of agreements with the doctors engaged by the assessee, filed by it in the Paper Book. Different types of agreements are made both for doctors engaged on retainership and those who are regular employees. After perusing both types of agreements, we see that there are a number of differences between various clauses in both types of agreement. To the employed doctors, there are conditions as with regard to salary revision of salary in the form of increment and also there is a condition as to the retirement age being 58 years. However, in case of retainer doctors, there is no clause as to the increment or retirement. Probation period of six months has also been laid down for salaried doctors, while there is no such condition in case of retainer doctors. No retirement benefits in the form of gratuity, PF, etc. were given to the retainer doctors, while said clauses are there in the agreement with the salaried doctors. Another interesting clause with regard to posting and transfer also appears in the case of salaried doctors, whereby the assessee company may determine to transfer the doctors at the sole discretion of the management to any department, section, location, associate, sister concern or subsidiary at any place in India or abroad, whether existing today or which may come up in future. While in the case of retainer doctors, it has been very specifically mentioned as to in which department the services of these doctors are required. From the analysis of these facts, it is quite clear that there is a lot of difference between clauses of agreement with the retainer doctors and that of the salaried doctors.

20. To decide the issue whether TDS has to be deducted as per section 192 or 194J of the Act, the basic requirement is to interpret the relationship between the assessee and the doctors. Further, a distinction is also to be drawn between the 'contract for service' and 'contract of service'. This issue has been very aptly dealt with by the learned CIT (Appeals) in his order at para 5.1. The contract 'for service' implies a contract, whereby one party undertakes to render the service, for example professional or technical services, to or for another in the performance of which he is not subject to detailed directions and control but exercises professional or technical skill and uses his own knowledge and discretion. A 'contract of service' implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and also as to its mode and manner of performance. As we have also stated that from the perusal of the agreements with the doctors, we do not see any relationship that of master and servant between the assessee and the doctors on retainership basis. It is also seen from these agreements that the doctors who are on the pay roll of the assessee are debarred from taking up any other work for

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remuneration part time or otherwise or work in advisory capacity or on interest directly or indirectly in any other trade or business during the employment with the assessee without permission of the assessee, while the doctors on retainership basis are only debarred from not getting in similar or any capacity for any other company engaged in a business similar to that of the assessee. The difference between this clause in two types of agreements itself goes to prove that doctors who are engaged on retainership basis are not the servants of the assessee since they are allowed to do whatever they want except joining the similar business while other doctors who are on the pay roll of the assessee are debarred from doing any other activity apart from that of the assessee. 21. From the perusal of all the material placed before us as well as the judicial pronouncements cited, we see that no relationship of master and servant exists between the assessee and the retainer doctors. 22. The learned D.R. relied on the judgment of the Hon'ble Supreme Court in the case of Padmasundara Rao (supra). The proposition of the said judgment is that while interpreting the Statutes Legislative intention must be found in the words used by the Legislature itself and the Legislative Casus omissus cannot be supplied by judicial interpretative process. We do not see any such act being done by the learned CIT (Appeals) while granting relief to the assessee. The intention of the Legislature to frame different provisions in the form of sections 192 and 194J of the Act is that the persons to receive salary are liable to be deducted tax at source under section 192 of the Act while those to receive payment for professional services, the TDS has to be deduction under section 194J of the Act. The learned CIT (Appeals) while discussing in detail the agreements between different types of doctors engaged by the assessee and placing reliance on the other material on record only has given his finding. In view of the above, we uphold the order of the learned CIT (Appeals) and dismiss the appeal of the Department. 23. In the result, all the appeals filed by the Department are dismissed.
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