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TMI Blog2015 (4) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Managing Director (appellant) and the similar preliminary issue involved therein relating to the maintainability of the appeal has already been decided by the Tribunal vide its order dated 13.02.2015 passed in ITA.No.1475/Hyd/2014 holding that the appellant was not entitled to file appeal against the impugned order passed by the Ld. CIT(A) dated 30.11.2007 confirming the penalty imposed by the A.O. under section 271(1)(c) on the company. The reasons given by the Tribunal for coming to the said conclusion as contained in paragraph Nos. 10 to 21 are extracted below : "10. We have heard the arguments of both the sides and also perused the relevant material on record. The order of the learned Commissioner of Incometax( Appeals) IV, Hyderabad dated 30.11.2007 passed in the case of M/s. Suvistas Software Pvt. Ltd., a private limited company, confirming the penalty of Rs. 2,37,039 imposed by the Assessing Officer under S.271(1)(c) is impugned in the present appeal filed by Shri R.Subba Rao, former Managing Director of the said company, in his individual capacity, and the issue that arises for our consideration is whether the said appeal is maintainable or not. As per the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e record, the tax demand of Rs. 2,32,554/- raised under section 143(3) on 20.02.2006 and penalty demand of Rs. 2,37,039/- raised under section 271(1)(c) on 31.08.2006 were not paid fully. In this context. you are requested .to pay the amounts immediately and file the chalans. If the amounts were already paid, please produce the chalans. Yours faithfully, ........" 12. A perusal of the above letter dated 4.8.2011 issued by the Assessing Officer clearly shows that there is nothing in the said letter to show that the amount of penalty in question payable by the company is sought to be recovered by the Assessing Officer from the appellant. The said letter is issued by the Assessing Officer in response to the request made by the appellant to the Chief Commissioner for compounding the offence as per the provisions of S.279(2) of the Act, and since it was necessary for the purposes of considering the said request that the corresponding dues on account of penalty etc. payable by the company should be paid, a request has been made to the appellant to arrange for the said payment. As rightly contended by the Learned Departmental Representative, there is thus nothing in the letter dated 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said case however shows that the concerned private company of which the assessee was director was already in liquidation and the issue involved before the Hon'ble High Court was entirely different, i.e. whether the provisions of S.179 are applicable retrospectively or not. The learned Single Judge had earlier held in this context that the liability of the Director under S.179 is only in respect of tax due from the private company, after 1st October, 1975 and not in respect of earlier period, and on appeal preferred by the revenue against the said decision before the Division Bench, Hon'ble Bombay High Court held that the Directors of a private company are liable for tax due of the company in respect of assessment years commencing from 1st April, 1962. Although it was also held by the Hon'ble High Court that the Directors are also liable for penalty, interest and recovery charges, this proposition is subsequently held to be not a good law by the Hon'ble Bombay High Court in the case of Dinesh T. Tailor V/s.TRO (326 ITR 85), wherein it was held that S.179 imposes joint and several liability upon a Director of a private company, only in respect of tax due from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the appellant cannot be considered as an assessee within the meaning of S.2(7), it follows that the question of treating the appellant as an ' assessee aggrieved', as envisaged under S.253, does not arise. However, since the learned counsel for the appellant has cited certain judicial pronouncements to support his contentions raised relying on the provisions of S.253, and there are also other judicial pronouncements explaining the scope and meaning of the term 'assessee aggrieved', we consider it necessary to discuss and deal with the same. In the case of Kikabhai Abdulali V/s. ITAT & Ors (32 ITR 762), it was no doubt held by the Hon'ble Bombay High Court that the right of appeal to the Tribunal and right to apply for a reference is not confined technically to the party who is a party to the appeal. It was however, clarified that such right can be exercised by any person, who becomes liable to pay tax by any order against which the appeal is preferred. As already discussed by us, the appellant in the present case is not a person who has become liable to pay penalty, the imposition of which is confirmed by the learned CIT(A) by his impugned order and therefore, he cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is provided with the right of appeal under S.253. It was held that though the Employees Association might be an aggrieved party to certain extent, it was not an assessee in terms of definition given in S.2(7) of the Act, which would mean a person from whom any tax or a sum of money is payable. It was held that in terms of the statute only the assessee who is liable to pay tax in terms of the order alone is provided with the right to appeal, though, to a certain extent, association may be an aggrieved party, it is not an assessee. It was held that no appeal, therefore, could have been filed by the association in terms of the Act. 21. The legal position clearly emanating from the judicial pronouncements discussed above thus is that the term 'assessee aggrieved' used in S.253(1), being a person competent to file an appeal before the Tribunal, is only the person who is an aggrieved party liable to pay tax in terms of the order against which the appeal is to be preferred. As already discussed by us, there is no tax payable by the appellant in the present case as a result of the impugned order passed by the learned CIT(A), and consequently, he cannot treated as an 'aggrieved party'. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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