Definition of directors in the notification 45/2012 of service tax

[Jyoti Sahoo]

Dear All,

As per Notn No 45/2012-ST dated on 07/08/2012, services  provided or agreed to be provided  by a director of a company to the said company, the company is liable to pay service tax of 100% as service receiver on reverse charge mechanism basis.

But I would like to know the definition of directors under this rule. Whether all directors are coming under this clause or some exclusion are there? Please suggest me on this and if possible provide me the base of it.

[Sandeep Soni]

The directors (generally whole time / managing / executive directors) who are under contractual employment with the company and receive salary or remuneration from the company will not be covered as they shall be considered as employees of the company. All such directors who are not in employment with the company shall be considered as providing services to the company which shall attract Service Tax. In case of whole-time directors, it is a contractual employment and is governed by the provisions of the Companies Act, 1956 which also require Government’s approval in certain cases.

Section 65B(44)  of Finance Act, 1994 as introduced w.e.f. 1-7-2012 reads as follows – “Service” means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include— (a) – - (b) a provision of service by an employee to the employer in the course of or in relation to his employment (c) – - .

Thus, services provided by employee to employer have been excluded from the definition of ‘service’ itself.

[YAGAY andSUN]

Kindly check the definition of the directors in the Companies Act.

AI Summary

Reverse charge on director services: companies liable to pay tax for non-employee directors, while whole time directors as employees are excluded. Notification 45/2012 subjects services provided by a director to the company to reverse charge, with the company liable as service receiver. Directors who are whole time/executive and under contractual employment receiving salary are treated as employees and excluded from the definition of taxable 'service'; non employee directors supplying services to the company attract service tax. The Companies Act definition of director should be consulted to determine status.