TaxTMI 
TaxTMI 
2023 (6) TMI 887
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....n) hereinafter referred to as the said company under liquidation was incorporated on 4th July, 1996 as a Public Limited Company under the provisions of the Companies Act, 1956 and engaged in the business of manufacturing of steel and power. 3. As per the master data of the Company as made available in the official website of the Ministry of Corporate Affairs, the registered office of the company under liquidation is at 35, Central Avenue, Kolkata - 700 012 under the Police Station, Bowbazar. 4. The petitioners along with Sri Kailash Chand Jain and Sri Vijay Kumar Jain were the directors of the said company (under liquidation). 5. The petitioner no. 1 herein is the accused person no. 3 in the Criminal Complaint case being no. CS/36744/2019, the petitioner no. 2 herein is the accused person no. 2, the petitioner no. 3 herein is the accused person no. 4 and the petitioner no. 4 herein is the accused person no. 5 in the said Criminal Complaint. 6. The respondent herein represented by an Income Tax Officer is the complainant in the Criminal Complaint case being no. CS/36744/2019. 7. That due to economic slowdown and other reasons the business of the said company (under li....
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....ddition of Rs. 78,92,00,000/-; (vi) The said demand of Rs. 43,25,07,040/- was not paid by the said company (under liquidation) and therefore, the Income Tax department alleged that an offence under Section 276C(2) read with Section 278B of the Income Tax Act has been committed on and from 14th September, 2017; (vii) Since no payment was made by the said Company (under liquidation), the respondent assumed that on and from 14th September, 2017 there is willful attempt on the part of the said company (under liquidation) to evade payment of tax; (viii) Further, the respondent alleged that under Section 179 of the Act since no payment was made by the said company (under liquidation), the Directors are liable to pay the tax of Rs. 43,25,07,040/- as demanded by the respondent on such assessment under Sections 144/147 of the Act; (ix) In view of the above, the respondent initiated criminal proceeding invoking the provisions of Section 276C(2) read with Section 279(1) of the Act against the said company (under liquidation), your petitioners and the said one Sri Kailash Chand Jain and Sri Vijay Kumar Jain; 14. It is stated that pursuant to the order dat....
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....ons for and on behalf of the said company (under liquidation). 20. From the complaint it appears that the Assessing Officer has re-opened and completed the assessment for the assessment year 2010-11 on 14th September, 2017 and thereafter the said alleged demand notice was issued to the said company (under liquidation) but not on the petitioners and/or upon any other ex-directors. Whereas, pursuant to the provisions of Sections 144/147 of the Income Tax, opportunity of being heard shall be given to the assessee before passing of any such order/assessment order. As such, without being any opportunity granted to the assessee/OL, the assessment order itself is bad in law, inter alia, rendering the demand and the demand notice bad. 21. It is further stated that from 8th September, 2015, pursuant to the order of this Hon'ble High Court in C.P. No. 985 of 2014, the Official Liquidator already took possession of the company and petitioners and other ex-directors are neither authorized nor have any documents to enter appearance before the Income Tax Authority. It is the Official Liquidator upon which any such notice of assessment and/or demand notice should have been issued and served....
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....fore the Learned Chief Metropolitan Magistrate at Calcutta being Complaint Case No. CS/36744/19 under Section 276C(2) read with Section 278B of the Income Tax Act, 1961 on or about August 2, 2019, much after the order of winding up has been passed alleging that there has been a visibly willful attempt on the part of the assessee to evade tax and alleged that your petitioners and one Sri Kailash Chand Jain and Sri Vijay Kumar Jain are liable to pay the tax demand raised against the Assessment Company. 24. The Learned Chief Metropolitan Magistrate, Calcutta vide order dated 02.08.2019 was pleased to take cognizance and transfer the case before the Learned 16th Metropolitan Magistrate, Calcutta. 25. Vide order dated 19.11.2019 the Learned Chief Metropolitan Magistrate, 16th Court, Calcutta was pleased to issue process against the petitioners herewith along with one Sri Kailash Chand Jain and Sri Vijay Kumar Jain. 26. From the complaint it is ample clear that the alleged offence under Section 276C(2) read with Section 278B has commenced to have been committed on and after 14th September, 2017. 27. In the above circumstances there is no question of willful default on the par....
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....ssets of the company now in liquidation and take immediate control of its transactions......................" (b) The petition of complaint, filed on 2nd August, 2019 before the learned Chief Metropolitan Magistrate, Calcutta, is against the said company, its Directors and the petitioners herein. (c) In paragraph 4 of the petition of complaint, it has been stated that the assessee company filed its return of income for the AY 2010-11 electronically on 23.09.2010 disclosing a total income of Rs.(-) 44,85,985/- Assessment U/s 144/147 of the IT Act, 1961 was completed on 14.09.2017 raising a demand of Rs. 43,25,07,040/- making an addition of Rs. 78,92,00,000/-. There has not been any payment of the outstanding tax demand till date. Thus there has been a visibly willful attempt on the part of the assessee to evade tax as the Directors Sri Akash Patni of 227/1A, AJC Bose Road, Kolkata-700020, Sri Chattar Singh Dugar of Flat-3C 5, S.R. Das Road, 227/1A, AJC Bose Road, Kolkata-700020, Sri Vimal Kr. Patni of 227/1A, AJC Bose Road Kolkata- 700020, Sri Vikash Patani of 227/1A, AJC Bose Road, Kolkata-700033, and Sri Kailash Chand Jain of Rajhans, 6, Hastings Park Road, Kolka....
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....ive the notice in accordance with sub-section (1) or fails to set aside the amount as required by sub-section (3) or parts with any of the assets of the company or the properties in his hands in contravention of the provisions of that sub-section, he shall be personally liable for the payment of the tax which the company would be liable to pay: Provided that if the amount of any tax payable by the company is notified under sub-section (2), the personal liability of the liquidator under this sub-section shall be to the extent of such amount.] (5) Where there are more liquidators than one, the obligations and liabilities attached to the liquidator under this section shall attach to all the liquidators jointly and severally. (6) The provisions of this section shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force." "When a company goes into liquidation, the liquidator may investigate the company's historical affairs. The liquidator may then take action against the directors if they were involved in insolvent trading, uncommercial transactions, or have loans due and owing to the company. The ....