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Recovery proceedings cannot be initiated against the former director of the Company who was not the director during the concerned period.

29 May, 2024
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Whether recovery proceedings can be initiated against the former director of the Company who was not the director during the concerned period?

 

No, the Honorable Bombay High Court in the case of Prasanna Karunakar Shetty v. State of Maharashtra and Others [2024 TAXONATION 756 (BOMBAY)] allowed the writ petition and set aside the attachment order in case where recovery proceedings were initiated against the former director of the Company who was not the director of the Company during the concerned period.The Honorable Bombay High Court observed that as per Section 79 of the Central Goods and Services Tax Act, 2017the principal liability is not on the Petitioner who is not a registered person as per sub-section (1) of Section 79 of the CGST Act. Further observed that Section 89 of the CGST Act provides that before taking any action of recovery against the Directors of the Company, the Concerned Officer should be satisfied that the person concerned against whom recovery is to be made is the Director of the Company for the concerned period. Further, it is after the aforesaid satisfaction of the Officer that such person was the director of the Company; the liability could be fastened against the Director. The Honorable Court noted that the factual issues needed to be verified before the passing of the Impugned Attachment Order by the concerned officer, by issuing the SCN to the Petitioner calling upon him to show cause that the amount due and payable by the Company is liable to be recovered from the Petitioner under Section 79, read with Section 89 of the CGST Act. The Honorable Court opined that neither any SCN was issued nor any opportunity for personal hearing was granted to the Petitioner before the passing of the Impugned Attachment Order and held that the writ petition is allowed and the Impugned Attachment Order is set aside.

 

Author’s Comments

Allegation of deliberate actions attracting imposition of penalty under section 122(1) or (2) against the legal entity is entirely compatible with imposition of penalty under section 122(3) against natural persons (directors or partners). And omission to impose penalty under section 122(3) would be good ground to assail the allegation against legal entities independent of natural persons who ought to be the real perpetrators of the alleged offence.

 

Topic-Prasanna Karunakar Shetty Versus State of Maharashtra, Commissioner of State Tax, Mumbai, State Tax Officer,

Citation-2024 TAXONATION 756 (BOMBAY)

CA Ritesh Arora

 

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