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Under company law, a director of a company is not personally liable for the company’s debts unless a court of competent jurisdiction finds him guilty of misfeasance. Company law proceeds on the basic principle of jurisprudence that a director is presumed to be innocent unless he is proved to be otherwise.

These salient principles of company law and jurisprudence are given the go-by under the income-tax law. Section 179 of the Income-Tax Act, 1961 imposes a vicarious liability on a director and such liability can be imposed by the assessing officer (AO) without adjudication by a court.

It will be for the director to prove his innocence. The section lays down that where any tax due from a private company cannot be recovered, then every person who was a director at any time during the relevant previous year 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.

This provision is not applicable to a company which is treated as public company under Section 43A of the Companies Act, 1956 in relation to tax pertaining to the period subsequent to its becoming a public company. This position was settled by Supreme Court itself.

The section underwent major amendment in October 1975. Prior to this date, it applied only to a private company in liquidation. The 1975 amendment extended the operation of the section to companies converted into public companies in respect of the period during which they were private companies.

It applies to all companies whether in liquidation or not. The marginal note to Section 179 wrongly refers to ‘company in liquidation’. After the 1975 amendment, it applies even to a company which is dissolved or struck off the registrar without being wound up.

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June 2024