2012 (7) TMI 592 - HC - Income Tax

Liability u/s 179 to pay the tax dues - a Revision Application under Section 264 filed by assessee - Held that - As in the first round of the proceedings u/s 179 CIT set aside the order of ITO directing him that before any order u/s 179 is passed against the petitioner, AO must give a specific finding to the effect that efforts made to recover the tax dues from the said company had failed and that the petitioner should be heard before any order is passed u/s 179 - the petitioner was never informed of the efforts made by the department to recover the amounts from the said company - the reliance placed upon a report of the Tax Recovery Officer for conforming the liability, however, no copy of the said communication of the Tax Recovery Officer was ever made known to the petitioner and in spite of the petitioner seeking inspection of all the documents on record, no such inspection was ever given to the petitioner. In this circumstances, the order passed is not only on the basis of the material viz. Tax Recovery Officer s letter/report that was not disclosed to the petitioner, but also passed without a personal hearing, as directed by the order of the CIT as a breach of the principles of natural justice has occurred the order of ITO is liable to the quashed and set aside and the matter ought to be remanded to the Tax Officer for de novo adjudication - in favour of assessee by way of remand.

Issues Involved:
1. Liability of the petitioner under Section 179 of the Income Tax Act, 1961.
2. Breach of principles of natural justice.
3. Applicability of Section 179 to a non-executive director.
4. Adequacy of reasons in the order passed by the Commissioner of Income Tax under Section 264.

Detailed Analysis:

1. Liability of the Petitioner under Section 179 of the Income Tax Act, 1961:
The petitioner, a non-executive director of a private limited company, was held liable under Section 179 to pay the tax dues of the company. The Income Tax Officer issued a show cause notice and subsequently passed an order on 6th January 2010, holding the petitioner responsible for the tax arrears. The Commissioner of Income Tax upheld this order in a revision application on 30th March 2011.

2. Breach of Principles of Natural Justice:
The petitioner contended that the orders were passed in breach of natural justice. The key points of contention were:
- The order dated 6th January 2010 was passed without giving the petitioner a personal hearing.
- The petitioner was not given inspection of the records or the Tax Recovery Officer's report dated 9th November 2009, which was relied upon in the order.
- The Commissioner's order dated 30th March 2011 lacked detailed reasons.

The court emphasized the importance of the Rule of Audi Alteram Partem, which includes the right to be heard, a fair procedure, and a reasoned order. The court noted that the petitioner was not informed of the efforts made to recover the tax dues from the company, and the material evidence was not disclosed to him, which was a breach of natural justice.

3. Applicability of Section 179 to a Non-Executive Director:
The petitioner argued that Section 179 should not apply to a non-executive director, especially when the tax non-payment was not brought before the Board of Directors. The respondent countered that Section 179 does not distinguish between executive and non-executive directors. The court did not delve deeply into this issue, focusing instead on the procedural lapses.

4. Adequacy of Reasons in the Order Passed by the Commissioner of Income Tax under Section 264:
The court found that the Commissioner's order dated 30th March 2011 was without reasons, merely affirming the Income Tax Officer's order without indicating any application of mind. The court cited precedents emphasizing that even an order of affirmation should contain brief reasons to show that the authority has applied its mind.

Conclusion:
The court set aside the orders dated 6th January 2010 and 30th March 2011 due to breaches of natural justice and lack of reasons. The matter was remanded to the Income Tax Officer for fresh consideration, directing that the petitioner be given a copy of the Tax Recovery Officer's report and an opportunity to inspect the records. The Income Tax Officer was instructed to follow the principles of natural justice, including granting a personal hearing before passing any new order. The petition was disposed of with no order as to costs.

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