2012 (12) TMI 494 - HC - Income Tax

Recovery of dues from director of the company u/s 179 - piercing corporate veil - held that - concept of lifting or piercing the corporate veil as sometimes referred to as cracking the corporate shell, is applied by Courts sparingly and cautiously. It is however, recognised that boundaries of such principle have not yet been defined and areas where such principle may have to be applied may expand. Section 179 of the Act itself is a statutory creation of piercing of corporate veil. Ordinarily, directors of a company even that of a private company would not be answerable for the tax dues of the company. Under sub-section(1) of section 179 of the Act, however, subject to satisfaction of certain conditions, the directors can be held jointly and severally liable to pay the dues of the company. If the factors noted by the Assistant Commissioner are duly established, there is no reason why such double application of lifting the corporate veil one statutorily provided and other due to emergent need of the situation, cannot be applied. As noted above, the factors recounted by the Assistant Commissioner in the impugned order are glaring. With respect to the finding of the Assistant Commissioner however, we have two reservations. Firstly, it is nowhere pointed out from where or on basis of which material such findings have been arrived at. There are some far reaching observations and conclusions which would require thorough investigation and support from materials on record. Second dispute that we have with the Assistant Commissioner s order is that same suffers from gross violation of principles of natural justice. In his notice under section 179(1) of the Act, he only put the petitioner to notice that he proposed to hold him liable for recovery of the tax dues of the company. He neither mentioned nor disclosed any tentative reasons why he may also invoke the principle of lifting of corporate veil. Matter remanded back to Assistant Commissioner for fresh decision in accordance with law.

Issues Involved:
1. Quashing the recovery proceedings against the petitioner for the income tax dues of a company.
2. Applicability of Section 179 of the Income Tax Act, 1961 to a public company.
3. Principle of lifting the corporate veil.
4. Compliance with principles of natural justice.

Issue-wise Detailed Analysis:

1. Quashing the Recovery Proceedings:
The petitioner sought to quash the recovery proceedings initiated by the respondents for the income tax dues of M/s. M. Kantilal & Co. Ltd., Surat. The petitioner, a director of the company, challenged the orders passed by the respondents.

2. Applicability of Section 179 of the Income Tax Act, 1961:
The petitioner contended that Section 179 of the Act, which allows for recovery of tax dues from directors of a private company, should not apply as the company in question was a public limited company. The Assistant Commissioner, however, proceeded under Section 179, arguing that the company was essentially a private entity disguised as a public company to evade tax obligations. The Commissioner upheld this view, emphasizing that the company was controlled by family members and did not offer shares to the public, thus justifying the application of Section 179.

3. Principle of Lifting the Corporate Veil:
The Assistant Commissioner applied the principle of lifting the corporate veil, concluding that the company was used as a conduit for generating unaccounted wealth, which was appropriated by the directors. Factors considered included:
- The company's undisclosed income was not reflected in its balance sheet.
- Directors and shareholders were family members.
- The company was formed to take over the business of a partnership firm where the directors were partners.
- Directors had created substantial assets in their own names.

The court reviewed several precedents where the corporate veil was lifted to prevent fraud or tax evasion, including cases like Delhi Development Authority v. Skipper Construction Co. Pvt. Ltd. and Life Insurance Corporation of India v. Escorts Ltd. The court agreed that if the factors noted were established, lifting the corporate veil was justified.

4. Compliance with Principles of Natural Justice:
The court found that the Assistant Commissioner's order suffered from a gross violation of principles of natural justice. The petitioner was not given sufficient notice or opportunity to respond to the grounds for lifting the corporate veil. The Assistant Commissioner's notice did not disclose the reasons for invoking this principle, and the petitioner's subsequent representation was not considered adequately.

Conclusion:
1. The respondent authorities established that tax dues could not be recovered from the company.
2. The petitioner did not prove that non-recovery was not due to his gross neglect, misfeasance, or breach of duty.
3. Section 179 of the Act generally does not apply to public companies, but lifting the corporate veil could justify its application if the noted factors are proven.
4. The Assistant Commissioner's order was quashed due to a lack of compliance with natural justice. The case was remanded to the Assistant Commissioner to proceed afresh, giving the petitioner a fair opportunity to respond to the grounds for lifting the corporate veil.

The court directed the Assistant Commissioner to issue a new notice, provide a fair hearing, and pass a fresh order based on the material on record, adhering to principles of natural justice.

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