9911796707
TMI Blog2023 (6) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent no. 1 under Section 264 of the Income Tax Act, 1961 (the Act) rejecting petitioners' application. 2. The order impugned came to be passed while rejecting an application filed by petitioners impugning an order dated 7th May 2018 passed under Section 179(1) of the Act. 3. Petitioners are two out of the four legal heirs of one late Dinesh Shamji Rita (the deceased), who was a Director of Bhavya Infrastructure India Private Limited (the company) during the Assessment Year 2012- 2013. The other two legal heirs are married daughters of the deceased and petitioner no. 1. 4. The company had filed its return of income for Assessment Year 2012-2013 on 29th September 2012 declaring an income of Rs. 62,47,290/-. The return of income was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th March 2020. In the meanwhile, it is averred in the petition that the deceased took seriously ill and was ailing for almost six months before succumbing to multiple organ failures on 6th May 2018, a day before the order dated 7th May 2018 came to be passed under Section 179 of the Act. The order impugned passed by respondent no. 1 under Section 264 of the Act also is a very brief order in the sense that the only ground on which the application under Section 264 of the Act came to be rejected is contained in paragraph 4.2 of the impugned order. Respondent no. 1, without considering any of the submissions made by petitioners, has simply rejected the application under Section 264 of the Act noting that notice of the death of the deceased was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit in reply of respondents filed through one Liladhar Krishna Gaonkar affirmed on 21st October 2022 it only says that letters were issued through speed post and the same were not returned undelivered and hence, the Assessing Officer had attempted to find out the whereabouts of assessee from 27th April 2018 to 7th May 2018. There is no evidence annexed to show that even such a letter was prepared or the letter was sent by speed post or a query was sent to the Post Master to find out the status of the delivery of the said letter. In the circumstances, we will have to proceed on the basis that no letter or notice was sent to the deceased before the order dated 7th May 2018 came to be passed. There is also nothing to indicate what steps wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of notice, the deceased has not been even given an opportunity to establish that the non recovery cannot be attributable to any of the three factors on his part, i.e., gross neglect or misfeasance or breach of duty. As held in Maganbhai Hansrajbhai Patel V/s. Assistant CIT [2012] 26 taxmann.com 226, the gross negligence etc. is to be viewed in the context of non recovery of tax dues of the company and not with respect to general functioning of the company. Once the Director after being given an opportunity places material on record to establish that non recovery cannot be attributed to gross negligence, misfeasance or breach of duty on his part, the Tax Recovery Officer is required to apply his mind and come to definite findings. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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