2022 (12) TMI 888 - HC - Income Tax

Recovery of the outstanding dues of the private limited company - Liability of directors of private company u/s 179 - HELD THAT - On perusal of the above provisions, it is clear that the Assessing Officer is required to make efforts for recovery of the outstanding dues from the assessee private limited company which has committed default in payment of the outstanding demand. The petitioners have prima facie shown that non recovery cannot be attributed to any gross negligence, misfeasance or breach of duty as Directors of the assessee company. AO has failed to consider the fact that the petitioners have tendered their explanation and contended that the petitioners have challenged the order of assessment before the appellate authority and the petitioners have not remained negligent nor there is any misfeasance or beach of trust on part of the petitioners and only because the petitioners have been unable to deposit 20% of the demand raised in the assessment order to get stay from the appellate authority, the petitioners cannot be said to be negligent and respondent no.1 cannot therefore, invoke jurisdiction under section 179.

Summary

Issues Involved:
1. Validity of the order under section 179 of the Income Tax Act, 1961.
2. Validity of the order attaching the residential property under Rule 48 of the Second Schedule to the Act.
3. Validity of the notice of demand under section 222 of the Act.

Issue-wise Detailed Analysis:

1. Validity of the order under section 179 of the Income Tax Act, 1961:
The petitioners challenged the order dated 26.10.2017 passed under section 179 of the Income Tax Act, 1961, which held the petitioners liable for the outstanding dues of M/s. Nakoda Syn-tex Private Limited for the assessment year 2014-2015. The petitioners argued that the basic conditions for invoking section 179 were not satisfied, specifically that there was no evidence of gross neglect, misfeasance, or breach of duty on their part. They contended that the authorities failed to demonstrate that they had taken all necessary steps to recover the dues from the company before holding the directors liable. The court noted that the authorities had only issued a recovery notice and attached the company's bank account without further assertive steps. The court also referenced previous judgments, including Sadhna Ramchandra Jeswani v. Income Tax Officer, which emphasized that the authorities must establish a clear foundation for invoking section 179, including proving gross neglect or misfeasance by the directors. The court found that the petitioners had shown that non-recovery could not be attributed to their gross negligence or breach of duty.

2. Validity of the order attaching the residential property under Rule 48 of the Second Schedule to the Act:
The petitioners also challenged the order dated 29.01.2018, which attached their residential property under Rule 48 of the Second Schedule to the Act. This attachment was a consequence of the order under section 179. Since the court found the order under section 179 to be invalid, the consequential attachment order was also deemed invalid. The court emphasized that the attachment of property was contingent upon the validity of the underlying order, which in this case, was found to be without proper jurisdictional basis.

3. Validity of the notice of demand under section 222 of the Act:
The notice of demand dated 11.01.2018, issued under section 222 of the Act, was also challenged by the petitioners. This notice was a direct consequence of the order under section 179. Given that the court invalidated the section 179 order, the subsequent notice of demand under section 222 was also quashed. The court reiterated that any actions based on an invalid order cannot stand, thus rendering the notice of demand void.

Conclusion:
The court concluded that the respondent authorities failed to meet the requirements of section 179 of the Income Tax Act, 1961. The authorities did not provide sufficient evidence of gross neglect, misfeasance, or breach of duty by the petitioners. Consequently, the impugned order dated 26.10.2017, the attachment order dated 29.01.2018, and the notice of demand dated 11.01.2018 were all quashed and set aside. The court ruled in favor of the petitioners, making the rule absolute to the extent of quashing the aforementioned orders and notices, with no order as to costs.