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TMI Blog2024 (4) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... 3; and (ii) Notice given by the Respondent No. 3 to IndusInd Bank, Chakala Branch, Andheri (E), Mumbai, for attaching the Current Account No. 201000639140 of M/s. India Hair of which the Petitioner is Proprietor; (b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing the Respondent No. 3 by himself, his subordinates, servants and agents to forthwith: (i) withdraw/cancel the Order of Attachment No. STO/MUM-BCP-C-005(Kurla-701)/Recovery/Attachment/2018-19/2023-24/B-323 dated 11.01.2024 [Exhibit "A"] issued by the Respondent No. 3; (ii) Lift the attachment from Flat No. 18, 6th Floor, Trimurti Residency, Plot No. 16, J.B. Nagar, Andheri (E), Mumbai 400 059, owned by and in possession of the Petitioner; (iii) Revoke the Notice give to IndusInd Bank, Chakala Branch, Andheri (E), Mumbai, for attaching the Current Account No. 201000639140 of M/s. India Hair of which the Petitioner is proprietor; (c) that pending the hearing and final disposal of this Petition, this Hon'ble Court be pleased to, by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be taken forward. It is on such backdrop the petitioner sometime in November 2022, received a summons from the Andheri Police Station that a First Information Report (FIR) had been lodged against the petitioner by the Maharashtra State GST Department. On 14th December 2022, the petitioner applied for an Anticipatory Bail and was granted such bail by the Sessions Court, Greater Mumbai in connection with the said FIR. 10. After almost 8 months, the petitioner, on 7th July 2023, received a communication from the Asst. Commissioner of State Tax in regard to the recovery proceedings initiated against the Company, pursuant to the order dated 27th November 2020. On 18th December 2023, almost after a year of the petitioner being granted Anticipatory Bail, the petitioner received an email from his Bank that the Current Account of M/s. India Hair, of which the petitioner was a proprietor, had been attached as per the instructions of respondent no. 3. Thereafter, on 11th January 2024, the impugned attachment of the petitioner's flat, being Flat No. 18, 6th Floor, Trimurti Residency, Plot No. 16, J.B. Nagar, Andheri (E), Mumbai 400 059, owned by and in possession of the petitioner, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w director was appointed on 1st June 2018 which is also the date falling under the relevant period. It is thus the petitioner's case that, for the period in question, the petitioner never acted as a director of the company. 16. We find much substance in the contention of the petitioner. All these factual issues were required to be verified before the impugned attachment orders were passed by the designated officer, by issuing a show cause notice to the petitioner calling upon him to show cause on tangible materials that the amount due and payable by the company was liable to be recovered from the petitioner under section 79, read with section 89, of the MGST Act. No such exercise was undertaken. Petitioner was neither issued a show cause notice nor was he heard, before such orders were passed. 17. We find much substance in the contention of the petitioner that such orders directly affect the petitioner's right to property guaranteed under Article 14 and 300A of the Constitution. 18. Certainly, the petitioner is an individual. His case is that for the relevant period he has not acted as a director of the company. The same ought to have basic consideration when Section 79 of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or revoke such notice or extend the time for making any payment in pursuance of the notice; (v) any person making any payment in compliance with a notice issued under sub-clause (i) shall be deemed to have made the payment under the authority of the person in default and such payment being credited to the Government shall be deemed to constitute a good and sufficient discharge of the liability of such person to the person in default to the extent of the amount specified in the receipt; (vi) any person discharging any liability to the person in default after service on him of the notice issued under sub-clause (i) shall be personally liable to the Government to the extent of the liability discharged or to the extent of the liability of the person in default for tax, interest and penalty, whichever is less; (vii) where a person on whom a notice is served under sub-clause (i) proves to the satisfaction of the officer issuing the notice that the money demanded or any part thereof was not due to the person in default or that he did not hold any money for or on account of the person in default, at the time the notice was served on him, nor is the money demanded or any part ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rritory tax and credit the amount so recovered to the account of the Government. (4) Where the amount recovered under sub-section (3) is less than the amount due to the Central Government and State Government, the amount to be credited to the account of the respective Governments shall be in proportion to the amount due to each such Government. "Explanation.-- For the purposes of this section, the word person shall include "distinct persons" as referred to in sub-section (4) or, as the case may be, sub-section (5) of section 25". Section 89 - Liability of Directors of Private Company (1) Notwithstanding anything contained in the Companies Act, 2013, where any tax, interest or penalty due from a private company in respect of any supply of goods or services or both for any period cannot be recovered, then, every person who was a director of the private company during such period shall, jointly and severally, be liable for the payment of such tax, interest or penalty unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company. (2) Where a private company is converte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very/ Attachment/2018-19/2023-24/B-323 dated 11.01.2024 [Exhibit "A"] issued by the Respondent No. 3; and (ii) Notice given by the Respondent No. 3 to IndusInd Bank, Chakala Branch, Andheri (E), Mumbai, for attaching the Current Account No. 201000639140 of M/s. India Hair of which the Petitioner is Proprietor; (b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing the Respondent No. 3 by himself, his subordinates, servants and agents to forthwith: (i) withdraw/cancel the Order of Attachment No. STO/MUM-BCP-C-005(Kurla-701)/Recovery/Attachment/2018-19/2023-24/B-323 dated 11.01.2024 [Exhibit "A"] issued by the Respondent No. 3; (ii) Lift the attachment from Flat No. 18, 6th Floor, Trimurti Residency, Plot No. 16, J.B. Nagar, Andheri (E), Mumbai 400 059, owned by and in possession of the Petitioner; (iii) Revoke the Notice give to IndusInd Bank, Chakala Branch, Andheri (E), Mumbai, for attaching the Current Account No. 201000639140 of M/s. India Hair of which the Petitioner is proprietor; 22. Rule is m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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