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TMI Blog2018 (6) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... t an order under Section 179 of the Act cannot be passed without affording the parties concerned an opportunity of hearing. - In so far as the petitioner was in jail when notice was ordered in the proceedings initiated against him under Section 179 of the Act, the said notice should have been served on him through the Superintendent of the jail wherein he was detained. The said course admittedly has not been adopted by the respondents. - Order is liable to be set aside and the matter has to be considered afresh. - W.P. (C). No. 10675 of 2018-H - - - Dated:- 11-6-2018 - MR. P. B. SURESH KUMAR, J. For The Petitioner : Smt. Preetha S. Nair For The Respondent : Sri.Jose Joseph, SC And Sri.N. Nagaresh, Assistant Solicitor General of India JUDGMENT Exts.P8 and P13 orders issued under Sections 230 and 179, respectively of the Income Tax Act ( the Act ), are under challenge in the writ petition. 2. The facts relevant for adjudication of the issues raised are the following: The petitioner is the third accused in C.C.No.1/2017 on the files of the Additional Special Sessions Judge (SPE/CBI)-III, Ernakulam. The said case is one registered on a final report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Ext.P8 order. As far as the personal liability of the petitioner mentioned in Ext.P8 order is concerned, it is pointed out by the petitioner that the orders, on the basis of which demand is raised against him, have been challenged by the petitioner in appeals and realisation of the amounts in terms of the demand has been stayed. As far as the liability of the company mentioned in Ext.P8 order is concerned, it is stated by the petitioner that it is only from Ext.P8 order that he came to know of Ext.P13 order making him also liable for the tax dues of the company under Section 179 of the Act. According to the petitioner, Ext.P13 order is illegal in as much as the same was one issued without notice to him. On the merits of the matter covered by Ext.P13 order, the case of the petitioner is that he was the director of the company only till 01.10.2009 and liability has been fastened on him on the premise that he was the director of the company till 2016. The petitioner, therefore challenges Exts.P8 and P13 orders in the writ petition on that basis. 4. A statement has been filed on behalf of the respondents. It is stated, among others, in the statement that a notice was issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould have been served on the petitioner through the Superintendent of the Jail. According to the learned Senior Counsel, in so far as the said course was not adopted by the second respondent in the matter of passing Ext.P13 order, the same can be reckoned only as an order passed without notice to the petitioner and hence liable to be struck down. It is also contended by the learned Senior Counsel that since Ext.P8 order is issued based on Ext.P13 order, the same is also liable to be struck down. 7. The learned Standing Counsel for the respondents submitted that if persons like the petitioner are permitted to go abroad, without making adequate provision for settlement of their tax liability, the Revenue may not be able to realise their tax dues running to crores. 8. I have given my thoughtful consideration to the contentions raised by the parties. 9. The first proviso to sub-section (1A) of Section 230 of the Act makes it clear that no person who is domiciled in India and in respect of whom circumstances exist, which in the opinion of the income-tax authority rendering it necessary for such person to obtain a certificate under the said Section, shall leave the country unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order against him for the liability of the company for the subsequent period. It is also the case of the petitioner that even if it is assumed that he was the director of the company all throughout, an order under Section 179 of the Act should not have been passed without compliance of the provisions contained in the said section. According to the petitioner, he is entitled to show that the non-recovery of the dues of the company cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company and in that event, he cannot be made jointly and severally liable for the dues of the company. According to the petitioner, in so far as Ext.P13 order was passed without notice to the petitioner, he lost the opportunity to establish the said fact. 12. There cannot be any dispute to the fact that an order under Section 179 of the Act cannot be passed without affording the parties concerned an opportunity of hearing. The statement filed on behalf of the respondents indicates that a notice was issued to the petitioner prior to Ext.P13 order on 31/07/2017 directing him to appear for hearing on 11/08/2017. The specific case of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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