2017 (3) TMI 45 - HC - Income Tax

Liability of directors of private company in liquidation - lifting the corporate veil - Held that - The overall situation if we analyze in its true perspective then only one conclusion which can be arrived at is that the corporate veil to be lifted and rightly so by the authority. - The authority has however considered the manner and method of other directors conduct of not cooperating manner and method of induction and resignation of petitioner as also considered other steps which have failed to recover huge crystallized revenue demand and also analyzed gradual decrease and evaporation of substratum of a company after the petitioner resigned from the company and then has also considered the huge financial crunch upon which the entire substratum is evaporated under the steps of securitization This is not a simple case of petitioner coming and going away from the company for which he is claiming to be non-responsible at all but it requires detailed examination which has rightly been examined by the authority. This Court sitting in a writ jurisdiction substantially in exercise of extraordinary equitable jurisdiction cannot ignore such kind of situation prevailing on record and see it helpless just because a defence is put up that company in question is a public limited company and therefore no resort to Section 179 of the Act can be made. The case of Pravinbhai M. Khemi (2012 (12) TMI 494 - GUJARAT HIGH COURT ) is sufficient answer to hold that there is no illegality and/or irregularity of any nature which is committed by the authority while passing the order impugned in the petition. Now in the light of above position if we look at self-imposed restrictions which are well recognized in exercise of extraordinary jurisdiction of this Court it would become clear that the specific findings which are reflected on record cannot be given a go-bye simply because there appears to be one or the other reasons no so cogently assigned by the authority. - Writ petition dismissed.

Issues Involved:
1. Legality and applicability of Section 179 of the Income-tax Act, 1961.
2. Lifting of the corporate veil.
3. Director's liability and fiduciary duty.
4. Classification of the company as a public or private limited entity.
5. Procedural fairness and natural justice.

Issue-wise Detailed Analysis:

1. Legality and Applicability of Section 179 of the Income-tax Act, 1961:
The petitioner challenged the order dated 31.3.2016 issued under Section 179 of the Income-tax Act, 1961, which held the directors liable for the company's tax dues. The petitioner argued that Section 179 is not applicable to public limited companies, and since the company in question was a public limited company, the invocation of Section 179 was impermissible. The respondent countered that the company acted akin to a private limited company, and thus, the provisions of Section 179 were rightly applied.

2. Lifting of the Corporate Veil:
The petitioner contended that the lifting of the corporate veil was unjustified as there were no extraordinary circumstances warranting such action. The respondent argued that the company was used for providing accommodation entries in the form of bogus share capital and share premium, and the substantial cash flow and share capital increase occurred during the petitioner's tenure as a director. The court noted that the company had not involved the public in any substantive form and had acted as a private limited company, justifying the lifting of the corporate veil to hold the directors accountable.

3. Director's Liability and Fiduciary Duty:
The petitioner claimed he was merely a nominal director and had not participated in the company's affairs. However, the court emphasized that directors have a fiduciary duty to exercise due care, skill, and diligence. The court referenced Section 166 of the Companies Act, which outlines the duties of directors, and noted that the petitioner, holding 98.33% of the shares, could not absolve himself from responsibility by claiming non-participation. The court cited precedents establishing that directors are liable for gross negligence, misfeasance, or breach of duty.

4. Classification of the Company as a Public or Private Limited Entity:
The petitioner argued that the company was a public limited company, and thus, Section 179 did not apply. The respondent and the court highlighted that despite its public limited status, the company operated as a private entity, with no public shareholding or involvement. The court analyzed the company's share capital structure, the lack of public issue, and the substantial control by the petitioner, concluding that the company functioned de facto as a private limited company.

5. Procedural Fairness and Natural Justice:
The petitioner contended that the order under Section 179 was passed without adequate opportunity for him to present his case. The court reviewed the procedural history, noting that the petitioner was given multiple opportunities to respond to notices and show cause. The court found that the principles of natural justice were observed, and the petitioner had failed to demonstrate that the non-recovery of tax dues was not attributable to his gross neglect, misfeasance, or breach of duty.

Conclusion:
The court upheld the order under Section 179 of the Income-tax Act, lifting the corporate veil and holding the petitioner liable for the company's tax dues. The court found that the company operated as a private limited entity, justifying the application of Section 179. The petitioner, as a director with substantial shareholding, had a fiduciary duty to the company and could not evade responsibility by claiming non-participation. The court dismissed the petition, finding no procedural unfairness or violation of natural justice.

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