Case Law Details
Chukk Apalli Ramakrishna Prasad Vs Deputy Commercial Tax Officer (Andhra Pradesh High Court)
The Andhra Pradesh High Court disposed of three writ petitions by a common order as they arose from the same issue and related to the same private limited company in liquidation. The petitioners were directors of M/s. Kusalava Batteries Private Limited, which was liquidated under the Insolvency and Bankruptcy Code, 2016 pursuant to orders of the National Company Law Tribunal, Amaravati Bench. During liquidation, commercial tax authorities sought recovery of ₹24,14,944/- from the liquidation proceeds, but the liquidator rejected the claim on the ground that it was not filed in the prescribed format and within the prescribed limitation. The liquidator placed these facts before the NCLT, which ultimately permitted dissolution of the company.
Subsequently, the Deputy Assistant Commissioner issued a notice dated 27.01.2021 under Section 24(5) of the Andhra Pradesh Value Added Tax Act, 2005, calling upon the petitioners, as directors, to pay the alleged tax dues. The petitioners responded on 05.02.2021, contending that recovery under Section 24(5) could be initiated only after exhausting all avenues of recovery against the company and only upon establishing that non-recovery was attributable to gross negligence, misfeasance, or breach of duty on the part of the directors. No further action was taken until 18.09.2025, when the authorities attached the petitioners’ bank accounts under Section 29 of the AP VAT Act. Aggrieved, the petitioners approached the High Court.
The petitioners argued that the tax authorities, having failed to properly pursue their claim during liquidation, could not seek recovery from the directors. They also contended that invocation of Section 24(5) required a prima facie case demonstrating gross negligence, misfeasance, or breach of duty, which had not been alleged or established. The respondents maintained that no adjudication was required and that the burden lay on the directors to prove that non-recovery was not attributable to their conduct.
The Court examined Section 24(5) of the AP VAT Act, which permits recovery of unpaid taxes of a private company in liquidation from its directors, subject to two conditions: first, that the tax dues cannot be recovered from the company; and second, that non-recovery is attributable to gross negligence, misfeasance, or breach of duty on the part of the directors. The Court held that the first condition is satisfied once recovery from the company is not possible, whether due to lack of assets or statutory bars, including limitation under the insolvency framework. Negligence on the part of the authorities in pursuing recovery does not take the case outside the scope of “cannot be recovered.”
On the second condition, the Court held that while the statute places the burden on directors to prove absence of gross negligence, misfeasance, or breach of duty, there is an initial obligation on the tax authorities to indicate the nature of such conduct alleged against the directors. Only after such indication is provided does the burden shift to the directors to rebut the allegation. The Court relied on the reasoning of the Gujarat High Court, which held that the revenue must lay a factual foundation before invoking similar provisions against directors.
Applying these principles, the Court noted that although a notice had been issued under Section 24(5), it failed to specify any acts of gross negligence, misfeasance, or breach of duty on the part of the petitioners. Consequently, the attachment of the petitioners’ bank accounts was found to be contrary to the statutory requirements. The Court set aside the bank attachments but clarified that the authorities were not precluded from initiating recovery proceedings afresh, provided the requirements of Section 24(5) were complied with and the petitioners were given an opportunity to file objections. The writ petitions were allowed, with no order as to costs.
FULL TEXT OF THE JUDGMENT/ORDER OF ANDHRA PRADESH HIGH COURT
As the three Writ Petitions arise out of the same issue and relate to the same company in liquidation, they are being disposed of, by way of this Common Order.
2. Heard Sri Karan Talwar, learned counsel for the petitioners and the Learned Government Pleader for Commercial Tax, appearing for the respondents.
3. The petitioners, in these Writ Petitions, are directors of a private limited company called M/s. Kusalava Batteries Private Limited. This company has been liquidated under the provisions of the Insolvency & Bankruptcy Code, 2016, by virtue of the Orders of the National Company Law Tribunal, Amaravati Bench, in C.P(IB) No.546/9/HDB/2018. During the course of liquidation, the commercial tax authorities had approached the Liquidator, by way of an E-mail, dated 30.10.2019, seeking recovery of Rs.24,14,944/- out of the amounts received on account of the liquidation of the company. The liquidator is said to have rejected the said claim on the ground that the claim has not been filed in the prescribed format and within the prescribed limitation. The liquidator, in the course of liquidation, had also filed IA(IBC) No.62 of 2021, setting out all the facts, including the fact that the claim of the sales tax authorities had been rejected by the liquidator. The liquidator had also stated that certain show-cause notices had also been received for recovery of money and the same had not been accepted. In any event, the National Company Law Tribunal, Amaravati Bench, disposed of this application, with permission being granted to the liquidator to dissolve the company.
4. The Deputy Assistant Commissioner (ST)-I, Krishnalanka Circle, Vijayawada, had issued a notice, dated 27.01.2021, under Section 24(5) of the Andhra Pradesh Value Added Tax Act, 2005 [for short “the AP VAT”], contending that a sum of Rs.24,14,944/- was due on account of the tax demands and called upon the petitioners herein, to clear the same within seven days from the date of receipt of the notice, failing which, action would be initiated for recovery. The petitioners had replied to the same by a letter, dated 05.02.2021. In this reply, the petitioners contended that the question of recovery under Section 24(5) of the AP VAT would arise only if the authorities could not recover the tax and a notice under Section 24(5) of the AP VAT Act, without exhausting all the avenues of recovery, was not permissible. Apart from this, the petitioners also contended that the directors of a private limited company cannot be required to make good the tax dues of the company unless the requirements of Section 24(5) of the AP VAT Act, namely inability to collect on account of gross negligence, misfeasance or breach of duty, are made out. No further action appears to have been taken by the authorities, after these objections were filed, till 18.09.2025. The 1st respondent, on 18.09.2025, attached the back accounts of the petitioners, by issuing a notice under Section 29 of the AP VAT Act, to the 2nd respondent, in which the petitioners are maintaining their bank account.
5. The petitioners being aggrieved by the said orders of attachment, have approached this Court, by way of the present set of Writ Petitions.
6. Sri Karan Talwar, learned counsel for the petitioners, essentially reiterated the aforesaid objections set out in their objection, dated 05.02.2021. He would contend that the tax authorities, having delayed filing the necessary claim applications, had shut themselves out of the liquidation process and the authorities cannot turn around and seek recovery from the petitioners. He would submit that the State cannot take advantage of its own mistakes and negligence and seek recovery from the petitioners. Apart from the above, the learned counsel for the petitioners would also contend that no steps can be initiated under Section 24(5) of the AP VAT Act unless and until a prima facie case, setting out the reasons which the authorities believe, makes out a case for invocation of Section 24(5) of the AP VAT.
7. The learned Government Pleader for Commercial Tax, appearing for the respondents, would contend that there is no need for any adjudication of any nature and it would be open to the authorities to recover money under Section 24(5) of the AP VAT Act, from any director of a private limited company, in liquidation, which has defaulted on payment of tax and the burden of demonstrating that such money cannot be recovered falls on the director of the company. He further submits that the language of the provision itself makes that clear.
8. Section 24 of the AP VAT Act reads as follows:-Section-24. Liability of partnership firms:
(1) Where any firm is liable to pay any tax or other amount under the Act, the firm and each of the partners of the firm shall be jointly and severally liable for such payment.
(2) Where any business carried on by a firm or a Hindu Undivided Family or an Association has been discontinued or dissolved, the authority prescribed shall make an assessment on the taxable turnover and determine the tax payable as if no such discontinuance or dissolution had taken place and all the provisions of the Act including provisions relating to levy of penalty or any other amount payable under any of the provisions of the Act shall apply, to such assessment.
(3) Every person who was at the time of such discontinuance or dissolution, a partner of the firm, or a member of such Hindu Undivided Family or Association and the legal representative of any such person who is deceased, shall be jointly and severally liable for the amount of tax, penalty or any other amount payable, and all the provisions of the Act shall apply to any such assessment or levy of penalty or any other amount.
(4) Where such discontinuance or dissolution takes place after any proceedings in respect of any year have commenced, the proceedings may be continued against the VAT dealer or TOT dealer referred to in sub-section (2) from the stage at which such proceedings stood at the time of such discontinuance or dissolution and all the provisions of the Act shall apply accordingly.
(5) When any private company is wound up and any tax assessed on the company under the Act for any period, whether before or in the course of or after its liquidation, cannot be recovered, then every person who was a director of the private company at any time during the period for which the tax is due, shall be jointly and severally liable for the payment of such tax, 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 company.
9. The relevant provision, for the purposes, of this Writ Petition, is Section 24(5) of the AP VAT Act. Under this provision, unpaid taxes and other amounts, due under the AP VAT Act or the Central Sales Tax Act, 1956, can be recovered from any director of a private limited company, which goes into liquidation and has not paid its tax dues. However, this right to recover is subject to two conditions. Firstly, the authorities must be in a position where they cannot recover any tax dues from the company. Secondly, the nonpayment of tax by the company should be on account of gross negligence, misfeasance, or breach of duty on the part of the directors, in question, in relation to the affairs of the company under liquidation.
10. The first condition, is that the taxes due from the company cannot be recovered by the authorities, and all avenues of such recovery are closed. This condition does not have any qualification. This would mean that Section 24(5) of the AP VAT Act can be invoked by the authorities, as and when all ways of recovery of tax is shut out, either on account of non-availability of funds or assets against which such taxes can be recovered, or on account of any statutory bar, such as the bar under the Insolvency & Bankruptcy Code, 2016, which prohibits any claim to be made after the period of limitation is over. To the mind of this Court, the negligence or otherwise of the authorities, in recovering the taxes cannot fall outside the term “cannot be recovered”. In the circumstances, this said condition would be complied with when the authorities have made their efforts, negligently or otherwise, to recover taxes and such taxes cannot be recovered at all.
11. On the question of the second condition, the requirement appears to be that the directors would have to be called upon to pay the dues of the company in liquidation, by calling upon to demonstrate that non-payment of taxes was not on account of gross negligence, misfeasance, or breach of duty. However, this condition would have to be understood to mean that there is an initial responsibility on the tax authorities to indicate the nature of such gross negligence, misfeasance, or breach of duty. It is only upon such an indication being given that the duty of demonstrating that there was no such gross negligence, misfeasance, or breach of duty on the part of the directors, would fall upon the directors of such a private limited company in liquidation.
12. We are fortified in this view by the Judgment of the High Court of Gujarat at Ahmedabad, in R/Special Civil Application Nos.5354 & 5355 of 2018, dated 27.08.2018. The view of the High Court of Gujarat at Ahmedabad, can be extracted from the following:-
“7. At the outset, we may notice that section 179 of the Act would enable the Revenue to recover the unpaid tax dues of a private company from its director, unless he proves that the non-recovery cannot be attributed to any gross negligent, misfeasance or breach of duty on his part in relation to the affairs of the company. Of course this requirement is cast in the negative and the burden is on the person who was a director of the company at the relevant time to establish the relevant facts. Nevertheless, it would be the onus of the Assessing Officer to draw the primary facts to the notice of the assessee on the basis of which, he proposes to invoke powers under section 179 of the Act. Essentially, this statutory provision provides for lifting of corporate vell and enable the Revenue to recover the unpaid tax dues of a private company from its directors, provided the requirements referred to in sub-section (1) of section 179 of the Act are satisfied. In case of Pravinbhai M. Kheni vs. Assistant Commissioner of Income Tax and ors reported in 353 ITR 585 2012-TIOL-1048-HC-AHM-IT in the context of the said provision, the Division Bench had observed as under:-
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8. Reverting back to the facts of the case, we notice that in show-cause notice the Assessing Officer has not laid down sufficient foundation for Invoking section 179 of the Act leave alone broadly pointing out he has not even alleged that non-recovery was on account of gross negligent, misfeasance or breach of duty on part of the petitioner in relation to the affairs of the company. His final conclusions in the impugned order are therefore based on the material at his command which was never shared with the petitioner.”
13. The contention of the learned Government Pleader for Commercial Tax that no further notice is necessary under this provision is also belied by the fact that the Deputy Assistant Commissioner (ST)-I, Krishnalanka Circle, Vijayawada, had in fact issued such a notice on 27.01.2021 itself. This notice was in line with the requirements of Section 24(5) of the AP VAT Act. However, this notice was not in full compliance of the said requirement as no indication has been given, in this notice, as to the nature of gross negligence, misfeasance, or breach of duty of the directors, that had resulted in non-recovery of the taxes.
14. For all the aforesaid reasons, the attachment of the bank accounts of the petitioners is clearly not in accordance with the requirements of Section 24(5) of the AP VAT Act and the said bank attachments are set aside. However, it shall not preclude the authorities from seeking recovery of the dues of the company, in liquidation, provided the requirements of Section 24(5) of the AP VAT Act are complied with and opportunity for filing their objections is given to the petitioners.
15. Accordingly, these Writ Petitions are allowed. There shall be no order as to costs.
As a sequel, interlocutory applications pending, if any shall stand closed.
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