PRAVEEN SURI Vs. COMMISSIONER OF INCOME TAX SAHARANPUR

JUDGEMENT

(1.) By means of the present writ petition the petitioner is challenging the order dated 20.2.2002, passed by the Assistant Commissioner of Income Tax, Saharanpur, under Section 179 of the Income Tax Act (called the 'Act' for short) by which the petitioner has been held liable to pay income tax dues of the company, M/s. P.S. Paper & Board Mills (P) Ltd., Saharanpur, for the assessment year 1990-91 being the Director of the said company.

(2.) Heard learned counsel for the petitioner and Sri Ashok Kumar, learned Standing Counsel.

(3.) Learned counsel for the petitioner submitted that the company has substantial assets and dues can be recovered from such assets, but without recording any finding that the amount cannot be recovered from the assets of the company the order under Section 179 of the Act has been passed. He further submitted that the respondent can only proceed to pass such order under Section 179 of the Act when the respondent fails to recover the amount from the assets of the company and to make out a case that the recovery is attributed to the gross neglect, misfeasance or breach of duty on the part of the petitioner in relation to the affairs of the company. In the impugned order neither any finding has been recorded that the amount cannot be recovered from the assets of the company nor any finding has been recorded that the recovery is attributed to any gross neglect, misfeasance or breach of duty on the part of the petitioner in relation to the affairs of the company and, therefore, the order is liable to be set aside. In support of the contention he relied upon the Division Bench decision of the Gujarat High Court in the case of Amit Surest) Bhatnagar v. Income Tax Officer, (2009) 221 CTR (Guj) 70 and another decision of the Gujarat High Court in the case of Bhagwandas J. Patel v. Deputy Commissioner of Income- Tax, 138 ITR 127.