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Smt. Uma Singhania & Another v. Assistant Collector Trade Tax, Kanpur & Another - WRIT TAX No. 819 of 1999  RD-AH 2383 (13 February 2007)
Civil Misc. Writ Petition No. 819 of 1999
Hon'ble Sushil Harkauli J.
Hon'ble Pankaj Mithal, J.
We have heard learned counsel for the petitioners and the learned standing counsel appearing for the respondents. Counter and rejoinder affidavits have been exchanged. From the respondents' side, a counter affidavit and two supplementary counter affidavits have been filed.
The petitioners are aggrieved by the act of the respondents trying to recover trade tax dues against the company known as Idol Commerce Private Limited, Kanpur, of which at one time the petitioners were admittedly directors.
The petitioners came to have resigned from the directorship and in any case, they contend that even if the petitioners continued to be directors, the trade tax dues could not be recovered from the personal assets of the directors as the liability of the petitioners as directors is also limited.
The defence of the trade tax department in the counter affidavit appears to be that the resignation from directorship was not intimated by the petitioners to the trade tax department till quite late. The second defence of the department is based upon the judgment of a Division Bench of this Court dated 4th March 1998 in Writ Petition No. 138 of 1984, Raghunath Rai Talwar and another Versus State of U.P. and others, which according to the trade tax department lays down the law that recovery of trade tax dues is permissible from the personal assets of the directors of the company.
After hearing the parties, we are of the opinion that it is not necessary to go into the issue whether the petitioners in fact resigned from directorship of the company as alleged by them and also into the question whether if the petitioners had resigned and not intimated their resignation to the trade tax department, what would be the consequences. For the purposes of deciding this writ petition, we assume for the sake of arguments that both the petitioners continued as directors of the said company.
Under the Companies Act, the liability of share holders and as well as the directors is limited by shares. The decision of this Court in the case of Raghunath Rai Talwar and another Versus State of U.P. and others, lays down that if there are dues, the trade tax department or the Government comes into the position of a secured creditor and it can lodge its claim as secured creditor in the liquidation proceedings.
The decision does not lay down that the recovery of trade tax dues is permissible from the personal assets of the directors.
It is not a case of the Government or department that funds of the company have been fraudulently transferred or siphoned off by the petitioners in their capacity as directors.
It is also not the case of the respondent department that the petitioners were personal guarantors for the dues of the company.
In the circumstances, we are of the opinion that whether the petitioners had resigned or whether they continued as directors and whether the fact of the alleged resignation was or was not communicated to the trade tax department, no recovery of the trade tax dues of the company of which the petitioners were directors can be made from personal assets of the petitioners. The respondents are, therefore, restrained from making any recovery from out of the personal assets of the directors.
With these observations, the writ petition is allowed as above.
Dated : February 13, 2007
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