TMI Blog2024 (2) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... ry provisions of the Companies Act make whole-time director (as also in capacity of key managerial personnel) responsible for any default/offences, it leads to the conclusion that those directors are employees of the assessee company. Since, the facts and circumstance of the present case are akin to, the above mentioned decision of this Tribunal and therefore same is squarely applicable in the present case also. The impugned order-in-original is without any merit and is set aside - appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MS. SULEKHA BEEVI C.S. And HON'BLE MEMBER ( TECHNICAL ) , MR. C L MAHAR Shri S J Vyas , Advocate for the Appellant Shri G Nair , Assistant Commissioner ( AR ) , for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Tax Rules, 1994. 1.2 On the above premises, the department issued a show cause notice dated 18.09.2015 demanding service tax of Rs. 71,51,390/- under the provisions of Section 73(1) of the chapter 5 of the Finance Act, 1994. The provisions of demanding interest as per the Section 75 and penalty as provided under Section 78(1) of the Finance Act, 1994, has also been invoked. Matter was adjudicated vide impugned order-in-original dated 21.07.2016 where under all the charges as invoked in the above mentioned show cause notice were confirmed by the Learned Adjudicating Authority. The appellant are before us against the above mentioned impugned order-in-original. 2. The Learned Advocate appearing for the appellant submits that the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed that a temporary employee would also be an employee and the relationship with the employer would be that of an employee/ employer. It is therefore submitted that the distinction made by the Learned adjudicating authority is legally not sustainable. 2.4 The Learned Counsel has also drawn our attention to Section 317 of the Companies Act, 1956 wherein it has been provided that appointment of a director would always made for a specific period and it has further been provided under the Act that no company shall appoint any individual as its managing director for a term exceeding five years at a time. 2.5 The Learned Advocate has also drawn our attention to form No. 16 issued by the appellant to its joint managing director where under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time directors, which is a fact on record. Section 2(94) of Companies Act, 2013, duly defines 'whole- time director' to include a director in the whole-time employment of the company. A whole-time Director refers to a Director who has been in employment of the company on a full-time basis and is also entitled to receive remuneration. The certificate issued by the company secretory states that the remuneration is given in various form as allowed under the Companies act, 2013. We further find that the position of a whole-time director is a position of significance under the Companies Act. Moreover, a whole-time director is considered and recognized as a 'key managerial personnel' under Section 2(51) of the Companies Act. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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