JUDGMENT

1. At the request of the Counsel, this petition is being finally disposed of at the stage of admission.

2. This petition under Article 226 of the Constitution of India challenges the order dated 26th December, 2017 passed by the Deputy Commissioner of Income Tax under Section 179(1) of the Income-Tax Act, 1961 (the Act). The Assessment Year involved is Assessment Year 2011-12.

3. The petitioner is a former Director of M/s. Shravan Developers Pvt. Ltd. (Private Limited Company), having resigned in the year 2013. The Private Limited Company has failed to honour its tax obligation for Assessment Year 2011-12. Thus becoming a delinquent Private Limited Company. In the above view, the petitioner received a show cause notice dated 6th February, 2017 under Section 179(1) of the Act seeking to recover the tax dues of Rs.4.69 crores of the delinquent Private Limited Company from the petitioner as its Director. The petitioner responded to the same and sought details of the notices issued to the delinquent Private Limited Company. However, without responding to the particulars sought, the impugned order dated 26th December, 2017 was passed under Section 179(1) of the Act making a demand of Rs.4.69 crores upon the petitioner.

4. The grievance of the petitioner is that the impugned order dated 26th December, 2017 passed by the Deputy Commissioner of Income-Tax is without jurisdiction for the reason that the jurisdiction to invoke Section 179(1) of the Act can only arise when the tax dues of the delinquent Private Limited Company cannot be recovered from it. It is submitted that the issue as raised herein stands concluded in favour of the petitioner by the decision of this Court in Madhavi Kerkar V/s. Assistant Commissioner of Income-Tax (Writ Petition No. 567 of 2016) rendered on 5th January, 2018.

5. However, Mr. Sharma, the Learned Counsel appearing for the Revenue in support of the impugned order submits that the above decision in Madhavi Kerkar will not apply to the present facts. In support, he submits :-

(a)the petitioner is not a professional/paid Director of the delinquent Company but is a Director who holds 76% of the shareholding therein;

(b)though the show cause notice does not indicate the steps taken by the respondent to recover the amounts from the delinquent Private Limited Company, it is indicated in the impugned order; and

(c) in any case the Affidavit-in-reply dated 14th February, 2018 filed by the Assessing Officer sets out the steps taken to recover the dues from the delinquent Private Limited Company and the failure to so recover.

For all the aforesaid reasons, it is submitted that the petition should be dismissed.

4. In so far as the first submission on behalf of the Revenue is concerned, the Act itself makes no distinction/classification between professional/paid Directors and Directors holding a large shareholding stake in the delinquent Private Limited Company. Section 179(1) of the Act only gives jurisdiction to the Assessing Officer to proceed against a Director of a delinquent company when the Assessing Officer is unable to recover the dues of the delinquent Company from it. It is not, therefore, open for the Assessing Officer to read conditions into Section 179(1) of the Act and jettison the strict rule of interpretation of fiscal statute which interalia prevents implying and/or reading anything in the statute not expressed therein. Thus, we find no merit in the above distinction.

5. So far as the second and third submission on behalf of the Revenue that in the facts of this case, the efforts which were made to recover the tax dues from the delinquent company though not stated in the show cause notice are found in the impugned order or in any event in the affidavit-in-reply dated 14th February, 2018. Thus, is sufficient compliance with Section 179 of the Act. It is the petitioner''s case in the petition that, an amount of Rs.49.81 crores are loans advanced to companies/associates of its Director, Mr. Pr