Assistant Commissioner Income Tax, Circle-21(2) vs Registrar Of Companies And Ors.

This appeal is filed by Income Tax Department, through its Income Tax Officer, Circle-21(2), CR. Building, I.P. Estate, New Delhi, under Section

252(1) of the Companies Act, 2013 (for brevity ‘the Act’) against the order of striking off the name of the Respondent No. 2 company (for

brevity ‘the Company’) passed by the respondent under section 248 (1) of the Act read with Rule 7 of Companies (Removal of Names of

Companies from the Register of Companies) Rules, 2016 published on 30.06.2017 vide notification no. ROC-DEL/248(5)/STK-7/2879 by Registrar of

Companies, the respondent herein.

The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of

Delhi and Haryana on 28.01.2010 having CIN U62100DL2010PTC198405.

The company is having registered office at A-340, Defence Colony, New Delhi-110024.

Authorized share capital of the Company is Rs.1,00,000/-divided into 10,000 equity shares of Rs.10/- each and issued, subscribed and paid up share

capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements since

incorporation in the year 2009, the name of the company was struck off in terms of provision of Section 248(1) of the Companies Act, 2013 read with

Rule 7 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016.

The appellant has submitted that service was duly effected on the respondents and service affidavit was filled accordingly. Other than the Registrar

of companies, none appeared on behalf of the company or ex-directors or other respondents. While Respondent No. 2 to 4 were proceeded ex-parte,

Respondent No.1, Registrar of companies submits that they have no objections to the prayer of the applicant being granted by this bench.

The Appellant prays for the restoration of Respondent No. 2 company in order to take forward proceedings initiated against the company. As per

averments by the appellant, on the basis of the Non-Management System information received by the Income Tax department, the Respondent

Company has made various cash transactions aggregating to Rs. 2,00,000/- or more and has also made payments of Rs. 2,20,00,000/- as reflecting in

the details of TDS transactions form 26AS under section 194J (Fees for Professional or Technical Services) of the IT Act during the A.Y. 2011-12

and 2012-13. Further, TDS transaction amounting to Rs. 20,00,000/- in the A.Y. 2011-12 has not been disclosed in the ITR.

The Appellant states that the respondent company had filed return of income for A.Y. 2011-12 on 30.09.2011 and declared income of Rs.

30,74,981/-. The income tax return of the company was processed by the CPC, Bangalore and intimation under section 143(1) of the Income Tax Act,

1961 dated 23.1.2012 was sent to the company creating a demand of Rs. 8,63,060/- excluding interest for the A.Y. 2011-12, which is still pending and

further as per the information, the company has also not filed its return of income for A.Y. 2012-13.

The appellant has further submitted that it appears that there is tax evasion which has escaped assessment within the meaning of Section 147 &

148 of the Income Tax Act and action in accordance with law is required to be initiated against the company. It is submitted that assessment of

income of the Company for the Assessment Year 2011-12 is pending. Notice dated 29.03.2018 under section 148 of the Income Tax Act, 1961 was

issued to the respondent at its registered address and email id as well as through affixation, to which there is no response from the Respondent No. 2

to 4 being the company and its ex-directors.

The Ld. Counsel for the Income Tax submits that in order to take the pending proceedings to logical conclusion and to recover the taxes on the

undisclosed income of the company and to recover the revenue from the transactions of the company during the year 2011-12, it necessitates

restoration of the Respondent No. 2 Company in the Register of Companies as maintained by ROC to proceed further in accordance with law. As on

date the proceedings cannot continue against the company, for it being struck off and the said revenue cannot be recovered.

It is the case of appellant that the Income Tax Department is an aggrieved party within the meaning of section 252(1) read with 252(3) of the

Companies Act, 2013 as it has to recover taxes payables by company and great prejudice will be caused to revenue if the name of the company is not

restored back.

In above circumstances, this appeal deserves to be allowed as the appellant is qualifying as ‘creditor’ under section 252(3) of the Companies

Act, 2013. Hence this appeal is allowed and the Registrar of companies is directed to restore the name of the Company in their Register and also

proceed to take such other and further penal action against the respondents in accordance with the statutory provisions. The name of the Appellant

Company shall then, as a consequence, stand restored to the Register of the Registrar of Companies, as if the name of the company had not been

struck off in accordance with Section 248(1) of the Companies Act, 2013.

The appeal is disposed of accordingly.

Let the copy of the order be served to the parties.