2009 (7) TMI 673 - HC - Income Tax

Recovery of Tax- The petitioner who was the director of a private limited company has been proceeded against in respect of the amount due from the company invoking the provisions under section 179 of the Act. The primary contention of the petitioner is that the invocation of power under section 179 of the Income-tax Act is not correct or sustainable for the reason that absolutely no finding has been arrived at by the Departmental authorities holding that the due amount is not recoverable from the company and its assets. Held that- dismissing the petition, as it was after referring to the available facts and figures that the authority arrived at a finding in this regard as borne out by the order passed and as such the statutory requirement was complied with, therefore the order passed was not in contravention of the specific stipulation under section 179.

Summary

Issues:
Challenge against orders under Income-tax Act invoking section 179, rejection by Settlement Commission, filing of appeals, review petitions, invocation of power under section 179, liability of director, statutory requirements, comparative rights of creditors, rights of secured creditors.

Analysis:
The petitioner, a director of a private limited company, challenged orders under the Income-tax Act invoking section 179 for amounts due from the company. Assessment orders for 1993-94, 1994-95, and 1995-96 were challenged before the Income-tax Appellate Tribunal and subsequently before the High Court. The petitioner sought settlement through the Settlement Commission, but the applications were rejected. Review petitions were filed but were pending. The petitioner contended that the orders were incorrect as no finding was made on the recoverability from the company and no personal liability existed due to lack of gross neglect. The Department argued that statutory requirements were met, and the director's actions led to non-recovery from the company. The court analyzed the facts and found compliance with section 179.

The petitioner argued that the Department had no better claim under the Income-tax Act, citing a Supreme Court decision. The Department contended that the rights of secured creditors took precedence, referencing another Supreme Court decision. The Department justified invoking section 179 due to insufficient company assets to cover the liability, especially with other preferential claims by secured creditors. The court held that the Department's actions were justified considering the circumstances and the rights of secured creditors.

The court concluded that there was no violation of the statutory requirement of section 179 in the orders challenged by the petitioner. The reasoning behind the orders was found to be in conformity with the evidence on record, and proper application of mind was observed. The writ petitions were dismissed, allowing the petitioner to pursue pending review petitions or other remedies available in accordance with the law.