2020 (12) TMI 784

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.... Tax Officer, C-124, Nodal Division, Mumbai-12 under section 38(1) of the Maharashtra Value Added Tax Act, 2002 as well as the demand notice dated 18.12.2018 issued to the petitioner by the said respondent under sections 178/267 of the Maharashtra Land Revenue Code, 1966. Petitioner has also challenged the legality and validity of the order of attachment dated 10.06.2019. 2.1. By the prohibitory order petitioner was informed that M/s. Twilight Mercantiles Limited has total outstanding dues under the Maharashtra Value Added Tax Act, 2002 (briefly "the MVAT Act" hereinafter) of Rs. 14,90,32,359.00 for the period 2011-12. Petitioner was directed not to create any charge of any asset owned by the dealer M/s. Twilight Mercantiles Limited whic....

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....emand notice and attachment order cannot be issued against a non-executive director of a public limited company. Section 44(6) of the MVAT Act, which is the relevant provision, is applicable to private companies which are registered as dealers under the MVAT Act ; it cannot be applied against public limited companies like M/s. Twilight Mercantiles Limited. 7. In this case, notice was issued on 27.10.2020. On 10.12.2020 the following order was passed :- "2. In this writ petition, petitioner has assailed the legality and validity of the prohibitory order dated 12.02.2018 passed under section 38(1) of the Maharashtra Value Added Tax Act, 2002. 3. Learned counsel for the petitioner submits that M/s. Twilight Mercantiles Lim....

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....idation, for any period, cannot be recovered, for any reason whatsoever, then, every person who was a director of the private company during such period shall be jointly and severally liable for the payment of such tax or other amount 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 said company." 13] A careful perusal of the said Section as extracted above, would go to show that first of all the said section is subject to the provisions of the Companies Act, 2013. Secondly, the provision says that if any tax or other amount recoverable under MVAT Act from a private company, whether existing or wound up or under liquidation....

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....ression. Section 2 of the Companies Act, 2013 is the definition clause. Sub Section (20) defines a "company" to mean a company incorporated under the Companies Act, 2013 or under any previous company law. "Private Company" is defined under Sub Section (68) to mean a company having a minimum paid up share capital as may be prescribed, and which by its articles, restricts the right to transfer its shares; except in case of One Person Company, limits the number of its members to two hundred; and prohibits any invitation to the public to subscribe for any securities of the company. On the other hand, "public company" has been defined under Sub Section (71) to mean a company which is not a private company and has a minimum paid up share capital ....