Wp(C)/22062/2009 Of V.m.thomas v. Income Tax Officer

PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940WP(C).No. 22062 of 2009 PETITIONERS: 1V.M.THOMASAGED 78 YEARSVASANTHA AVENUE, MRC NAGAR, CHENNAI 600 028.AGED 78 YEARSVASANTHA AVENUE, MRC NAGAR, CHENNAI 600 028. 2DAVIS THOMAS, 27 OLD NO.14VASANTHA AVENUE, MRC NAGAR, CHENNAI 600 028.VASANTHA AVENUE, MRC NAGAR, CHENNAI 600 028. 3MANUEL THOMAS, 27 OLD NO.14VASANTHA AVENUE, MRC NAGAR, CHENNAI 600 028.VASANTHA AVENUE, MRC NAGAR, CHENNAI 600 028. BY ADVS.SRI.E.K.NANDAKUMARSRI.ANIL D. NAIRSRI.K.JOHN MATHAISRI.P.BENNY THOMAS RESPONDENTS: 1INCOME TAX OFFICER,WARD1(1)ERNAKULAM 18. 2COMMISSIONER OF INCOME TAX, KOCHI-18. OTHER PRESENT: SC-SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T The petitioners, who claim to be the Directors of aPrivate Limited Company, has filed this writ petitionimpugning steps taken by the Income Tax Departmentagainst them under Section 179(1) of the Income Tax Act,to recover certain amounts that are allegedly due fromthe company under assessments for the years 1992-93 and1993-94. 2.The crux of the petitioners' case is that theyare not liable to be proceeded under Section 179(1) andalso that the assessments have not yet become final,since one of them is under challenge before the IncomeTax Appellate Tribunal and the other is still pendingbefore the Assessing Authority consequent to remand. 3.I asked Sri.Jose Joseph, the Learned standing counsel for the Income Tax Department that if theassessments are still not final, how the Departmentwould be justified in ordering recovery of amounts fromthe Directors. The Learned standing counsel very fairlyconceded that if, as alleged by the petitioners, one of the assessments is still not final, then no further stepsunder Section 179(1) will be pursued and he says that thepresent action has been only to hold the Directorsresponsible under the provisions of that Section andnot to recover it. However, as regards the year 1992-1993, the Learned standing counsel says that there is nostay obtained by the petitioners from the Tribunal andtherefore there is nothing that stops the Department fromproceeding against them. 4.Going by the afore submissions, I am certain ofthe view that until and unless the assessments arecomplete and the amounts under it becomes recoverable,any further action under Section 179(1) against the petitioners cannot be permitted. 5.In such view of the matter, I close this writpetition recording the submissions made on behalf of theIncome Tax Department that no further action will betaken against the petitioners, as far as the pendingassessment for the year 1992-1993 is concerned, untilsuch time as the assessment is concluded in terms of law. As regards the year 1992-1993 is concerned, even thoughthe learned Standing Counsel says that no stay has beenobtained by the petitioner from the Tribunal, I am of theview that since the Tribunal is seized of the matter, itwould only be fairness that further action against thepetitioners be defered. 6.Needless to say that the petitioners would be atliberty to invoke all remedies as may be available tothem under the Act, if steps are taken under Section179(1) against them after conclusion of the assessmentand appeal. This writ petition is thus ordered. rp-26.9 Sd/- DEVAN RAMACHANDRAN JUDGE WP(C).No. 22062 of 2009 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER DATED 26/12/2006 FOR THE YEAR 1992-93 & 1993-94RESPONDENT TO THE 1ST PETITIONER DATED 26/12/2006 FOR THE YEAR 1992-93 & 1993-94 6.Needless to say that the petitioners would be atliberty to invoke all remedies as may be available tothem under the Act, if steps are taken under Section179(1) against them after conclusion of the assessmentand appeal. This writ petition is thus ordered. rp-26.9 Sd/- DEVAN RAMACHANDRAN JUDGE WP(C).No. 22062 of 2009 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER DATED 26/12/2006 FOR THE YEAR 1992-93 & 1993-94RESPONDENT TO THE 1ST PETITIONER DATED 26/12/2006 FOR THE YEAR 1992-93 & 1993-94 EXHIBIT P2TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER DATED 26/12/2006 FOR THE YEAR 1992-93 & 1993-94RESPONDENT TO THE 2ND PETITIONER DATED 26/12/2006 FOR THE YEAR 1992-93 & 1993-94EXHIBIT P3TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT TO THE 3RD PETITIONER DATED 26/12/2006 FOR THE YEAR 1992-93 & 1993-94RESPONDENT TO THE 3RD PETITIONER DATED 26/12/2006 FOR THE YEAR 1992-93 & 1993-94 EXHIBIT P4TRUE COPY OF THE ORDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL FOR THE ASSESSMENT YEAR 1993-94 DATED 11/1/2008 ISSUED TO M/S METRO STOCKS AND SHARES PVT. LTD.TAX APPELLATE TRIBUNAL FOR THE ASSESSMENT YEAR 1993-94 DATED 11/1/2008 ISSUED TO M/S METRO STOCKS AND SHARES PVT. LTD. EXHIBIT P5TRUE COPY OF THE APPEAL FILED BY THE PETITIONER'S BEFORE THE TRIBUNAL FOR THE YEAR 1992-93 DATED 5/6/2008PETITIONER'S BEFORE THE TRIBUNAL FOR THE YEAR 1992-93 DATED 5/6/2008EXHIBIT P6TRUE COPY OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX FOR THE YEAR 1992-93 & 1993-94 TO THE 1ST PETITIONER DATED 4/2/2008COMMISSIONER OF INCOME TAX FOR THE YEAR 1992-93 & 1993-94 TO THE 1ST PETITIONER DATED 4/2/2008EXHIBIT P7TRUE COPY OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX FOR THE YEAR 1992-93 AND 1993-94 TO THE 2ND PETITIONER DATED 4/2/2008COMMISSIONER OF INCOME TAX FOR THE YEAR 1992-93 AND 1993-94 TO THE 2ND PETITIONER DATED 4/2/2008 EXHIBIT P8TRUE COPY OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX FOR THE YEAR 1992-93 & 1993-94 TO THE 3RD PETITIONER DATED 4/2/2008COMMISSIONER OF INCOME TAX FOR THE YEAR 1992-93 & 1993-94 TO THE 3RD PETITIONER DATED 4/2/2008