Page 99 - GSTL_30th April 2020_Vol 35_Part 5

2020 ] IN RE : CLAY CRAFT INDIA PVT. LTD. 585
employee of a company also appointed as a director of the company is in the po-
sition of director. Therefore conversely any director working as whole time direc-
tor would be legally at par with an employee;
1.28 Applicant further submits that Section 2(24) (sic) of the Companies
Act, 1956 makes it clear and reads as under :
Section 2(24) ”manager” means an individual (not being the managing
agent) who, subject to the superintendence, control and direction of the
Board of Directors, has the management of the whole, or substantially the
whole, of the affairs of a company and includes a director or any other per-
son occupying the position of a manger, by whatever name called, and
whether under a contract of service or not;
1.29 Also, Section 2(26) of the Companies Act, 1956 (sic) states as under;
Section 2(26) ”managing director” means a director who, by virtue of an
agreement with the company or of a resolution passed by the company in
general meeting or by its Board of directors, or by virtue of its memoran-
dum or articles of association, is entrusted with any powers of management
which would not otherwise be exercisable by him, and includes a director
occupying the position of managing director, by whatever name called;
1.30 Further applicant would like to cite the definition of an employee
under Employee’s Provident Fund and Miscellaneous Provisions Act, 1952
which reads as under
2F. Any person who is employed for wages in any kind of work, manual
or otherwise, in or in connection with the work of an establishment, and
who gets his wages directly or indirectly from the employer, and includes
any person - (i) employed by or through a contractor in or in connection
with the work of the establishment; (ii) engaged as an apprentice, not being
an apprentice engaged under the Apprentices Act, 1961, or under the stand-
ing orders of the establishment.
1.31 The applicant submits that the whole time Directors of our com-
pany are appointed by the Board of Director in the company and are given vari-
ous responsibilities thereby bringing them under the definition of an employee;
1.32 Further the Employees Provident Fund Scheme, 1952 also defines
the employee as the one :
Clause 2(e) ”Employee” means a person appointed to or borne on the ca-
dre of the staff of the Corporation, other than persons on deputation;
1.33 that this definition of an employee also completely brings the
whole time Director under the definition of an employee as none of them are on
deputation from any other organization;
1.34 that these definitions mentioned supra makes it clear that a direc-
tor of the company is in the employment of the company and his services would
be excluded from the provisions of CGST Act, 2017 by way of exclusion provided
in the Serial No. 1 of the Schedule III ibid;
1.35 Further in applicants case our memorandum and Article of Asso-
ciation (sic) at point No. 43 clearly mentions appointment of Director. This article
reads as under :
43. The Directors may from time to time subject to section 197A of the
Companies Act appoint one or more of their body to the office of Managing

GST LAW TIMES  30th April 2020  99