Court No. - 32 AFR
Reserved on 21.11.2013
Delivered on 13.12.2013
Case :- WRIT TAX No. - 966 of 2008
Petitioner :- Smt. Pratibha Garg
Respondent :- Commissioner Of Income Tax, Muzaffar Nagar, U.P. & Others
Counsel for Petitioner :- Shakeel Ahmad
Counsel for Respondent :- B. Agrawal,A.N. Mahajan
Hon'ble Sunil Ambwani,J.
Hon'ble Surya Prakash Kesarwani,J.
(Delivered by Hon'ble Surya Prakash Kesarwani,J.)
1. In this writ petition, the petitioner has prayed for the following relief :
"(i) issue a writ, order or direction in the nature of prohibition against respondent no.1 prohibiting it from continuing further with the proceedings;
(ii) issue a writ, order or direction in the nature of certiorari calling for bringing up of the records of the said case and quashing the order dated 29.3.2007 (Annexure-10 to the writ petition);
(iii) issue a writ, order or direction in the nature of mandamus directing the respondent -1 to desist from acting further as its order dated 29.3.2007 (Annexure-10 to the writ petition) and to treat it as non-est.
(iv) issue a writ, order or direction in the nature of certiorari to quashing the order of attachment dated 22.9.2006 of the only residential flat of the petitioner situate at B-10/4 IInd Floor, Ramesh Nagar, New Delhi (Annexure-9-A to this writ petition).
(v) issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case ;
(vi) award the cost to the petitioner."
9. We have considered the submissions of learned counsel for the parties. We find that the following questions arise for adjudication in this case :
(1) Whether the word "tax due" used in Section 179 of the Act would include penalty and interest ?
(2) Whether the petitioner has established that the recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on the part of the petitioner in relation to the affairs of the company?
(3) Whether the CIT has correctly held that tax dues of the company are liable to be recovered from the petitioner as Director for the AY 1984-85?
(4) Whether the orders passed under Section 179 of the Act against the petitioner is liable to be set aside on the ground of violation of principles of natural justice ?
10. Question No.1 :- (i)Whether the word "tax due" used in Section 179 of the Act would include penalty and interest ?
(1) Whether the word "tax due" used in Section 179 of the Act would include penalty and interest ?
(2) Whether the petitioner has established that the recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on the part of the petitioner in relation to the affairs of the company?
(3) Whether the CIT has correctly held that tax dues of the company are liable to be recovered from the petitioner as Director for the AY 1984-85?
(4) Whether the orders passed under Section 179 of the Act against the petitioner is liable to be set aside on the ground of violation of principles of natural justice ?
10. Question No.1 :- (i)Whether the word "tax due" used in Section 179 of the Act would include penalty and interest ?
17. Question No. 2 and 3 :-
(2) Whether the petitioner has established that the recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on the part of the petitioner in relation to the affairs of the company?
(3) Whether the CIT has correctly held that the tax dues of the company are liable to be recovered from the petitioner as Director for the AY 1984-85 ?
(2) Whether the petitioner has established that the recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on the part of the petitioner in relation to the affairs of the company?
(3) Whether the CIT has correctly held that the tax dues of the company are liable to be recovered from the petitioner as Director for the AY 1984-85 ?
22. There cannot be any quarrel to the proposition that tax dues of a private company can be recovered from its Directors in the circumstances specified in Section 179 of the Act. Section 179 of the Act however cannot be invoked if such a Director proves that non recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on the part of the petitioner in relation to the affairs of the company. In the present set of facts the stand of the petitioner in the reply dated 16.9.2002 in pursuance to the notice under Section 179 of the Act has not been disputed by the department rather the CIT has admitted that the petitioner was an inactive Director. He however found that the fact that she was an inactive Director has no relevance for the purposes of Section 179 of the Act. In our view the admission of the fact that the petitioner was an inactive Director and she has not caused any loss to the company. She resigned from directorship of the company on 27.10.1983 i.e. in the middle of the AY 1984-85. The petitioner has thus proved that non recovery of the tax due against the company cannot be attributed to any gross neglect, misfeasance or breach of duty on her part in relation to the affairs of the company. Neither the ACIT nor the CIT have referred to any material nor they have referred to any evidence to indicate any gross neglect, misfeasance or breach of duty on the part of the petitioner in relation to the affairs of the company. In view of this factual position, we are of the view that Section 179 of the Act could not be invoked against the petitioner.
24. Sri Dhananjay Awasthi has heavily relied the judgment of this Court in the case of Roop Chandra Sharma (supra) (1998) 229 ITR 570 (Alld),and the judgment of Kerala High Court in the case of Alex Cherian (supra) (2010) 320 ITR 49 (Ker) To contend that the tax dues of the company are recoverable from the petitioner. In the case of Roop Chandra Sharma (supra) this Court has held that the Directors of a private company though not under liquidation may be liable for the dues which is pending against the company. In the present case, the controversy is different. The stand of the petitioner is different inasmuch as the petitioner has firstly denies her liability and alternatively her stand is that "tax dues" for the purposes of Section 179 of the Act for the AY 1984-85 shall not include penalty and interest. The judgment in the case of Alex Cherian (supra) also has no application on the facts of the present case as in that case it was found that the concerned authority has recorded satisfaction that there exists basic ingredients of section 179 i.e. whether the amount can be recovered from the company or not and whether the non recovery was because of gross neglect, misfeasance or breach of duty attributable to the Director concerned.
25. In view of the above discussions we set aside the order dated 9.3.2007 (Annexure No.10) as well as the order of attachment dated 22.9.2006 (Annexure No. 9A) and restrain the respondent no.1 from recovering the tax dues of the company from the petitioner.
26. The writ petition succeeds and is hereby allowed with costs.
Order Date :13.12.2013
Ashish Pd.
25. In view of the above discussions we set aside the order dated 9.3.2007 (Annexure No.10) as well as the order of attachment dated 22.9.2006 (Annexure No. 9A) and restrain the respondent no.1 from recovering the tax dues of the company from the petitioner.
26. The writ petition succeeds and is hereby allowed with costs.
Order Date :13.12.2013
Ashish Pd.
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