Employer-employee determination

visu (Querist) 02 April 2013 This query is : Resolved
Pl. support me with legal reference, to determine employer-employee relationship.
particularly in case of expat employee working in India.

This is required to determine the SERVICE TAX liability of the assessee whose 80% of his employees are EXPAT under a contract of 3 years.

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Vidhi Joshi (Expert) 02 April 2013
Dear Visu, your query is vague. kindly consult a CA for proper reply.

Guest (Expert) 02 April 2013
Please be specific by describing your real problem with reference to the connection of service tax with the employees being expatriates?

visu (Querist) 02 April 2013
repeat my question..
a)Service tax is not applicable for the employer employee relations..
but
department contention is..
salary paid to expat employee is construed as professional service and service tax applicable being the import of service.

As an assessee,
convinced the proof of evidence of an employee working for a fixed term on a decided remuneration; to whom the salary is paid in US dollar.(for an employee working in India)

I need to establish the employer employee relation with a legal reference to defend my argument, as
the amount paid to expat in US dollar is not the import of service; but it is the actual amount of salary paid.

Experts, pl. support me..!! with legal reference.

Guest (Expert) 02 April 2013
Dear Visu,

It is hard to work out any firm opinion in the absence of the terms of contract. Otherwise, 3 years contact and regular employment of a person has a lot of difference, where a contract for merely 3 years would fall within the purview of a contract under the Indian Contract Act and regular employment is governed by the service laws.