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TMI Blog2013 (5) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... the company, in which the petitioner was a Director. Respondent shall not seek any recovery of the penalty and shall refund the interest and a portion of the penalty, which is already recovered so far. Since the petitioner had approached this Court after a considerable delay after the interest was recovered, we provide that such refund shall not carry interest, if made within a period of three months from today. Failing which, from the end of such period, the amount to be refunded shall carry simple interest @ 9% per annum till actual payment. - SPECIAL CIVIL APPLICATION NO. 808 of 2013 - - - Dated:- 4-3-2013 - AKIL KURESHI AND MS. SONIA GOKANI, JJ. For the Appellant Tej Shah. for the Respondent Manav A. Mehta. ORDER:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax of Rs. 10,25,749/- and interest under Section 234A and 234B of the Income Tax Act, 1961 ('the Act' for the short). Against such order of assessment, company had preferred appeal before the CIT(A). Such appeal was dismissed. It is stated that company's further appeal before the Tribunal is pending. 3.2 Since the company did not pay the tax and the interest due arising out of the said order of assessment dated 30.12.2009, the respondent issued a notice dated 12.10.2011 and the petitioner was asked to prove that such non-recovery was not due to any gross neglect, misfeasance or breach of duty on his part in relation to affairs of the company. 4. It appears that the petitioner did not reply to the show-cause notice. Respondent, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ordered levy of penalty of Rs. 11,25,746/- under the said provision. Company has preferred appeal before the Commissioner (Appeals) against penalty order dated 16.03.2012. It is stated that such appeal is pending before the Appellate Commissioner. 7. At that stage, the respondent issued notice under Section 226(3) of the Act attaching the account of the petitioner for recovery of the said outstanding penalty amount of Rs. 11,25,746/-. The petitioner, thereupon, replied to the respondent and contended that no recovery of the penalty can be made from the petitioner. He stated that the demand of Rs. 29,93,644/- was already satisfied by the petitioner. 8. We may record that in addition to the tax and interest due, the respondents also rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and super-tax chargeable under the provisions of this Act prior to the aforesaid date and in relation to the assessment year commencing on the 1st day of April, 2006, and any subsequent assessment year includes the fringe benefit tax payable under section 115WA." 17. Term 'penalty' has not been defined. Term 'interest' is defined in section 2(28A) of the Act but is in context of interest payable in any manner in respect of any moneys borrowed or debt incurred and has no relation to interest chargeable under various provisions of the Act on tax arrears. We may however, notice that as observed by the Apex Court in case of Harshad Mehta (supra), the Act uses the term 'tax', interest and penalties at various places having different conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 220(2) provides that if the amount so specified is not paid within such time, the assessee shall be liable to pay interest. Such interest thus would be on the entire sum payable which may include the tax, interest and penalty or any other source found payable. It would therefore, not be possible to stretch the language of section 179(1) of the Act to include interest and penalty also in the expression 'tax due'. 19. In case of Ratanlall Murarka and others (supra), as already noted, Kerala High Court did hold that under section 179 of the Act not only the tax dues but also interest can be recovered from the director of a public company. This was on the basis that according to the Court, the company was liable for interest unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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