Assistant Commissioner Of Income Tax vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The appeal is filed by the Asst. Commissioner of Income Tax, Centre Circle - 19, New Delhi, against the striking off of the name of the M/s. India Premier Services Private Limited ("the company"), from the register of companies.

It is stated that, the company is a private limited company incorporated under the erstwhile Companies Act, 1956, on 15.10.2012 having CIN No. U55101 DL2012 PTC243659 with Authorized capital Rs. 8,70,00,000/- and paid up capital of Rs. 8,69,09,800/-/-. The registered office of the company is stated to be at C-134, Ground Floor, Defence Colony, New Delhi -110024. Therefore, the jurisdiction lies with this Tribunal.

The Appellant submits, that the case of M/s. India Premier Services Private Limited was identified by the Non-Filer Monitoring System (NMS) as the company had not filed its Annual Returns and balance sheet for a period of two immediately preceding financial years, thereby giving rise to the surmise that the company was not in operation, in pursuance of Public notice STK - 5 dated 18.06.2017 under Income Tax Act, 1961 and entitling the Revenue to initiate proceedings against the company.

It is submitted that vide notice dated 18.06.2018 being Public Notice no. ROC- DEL/248/STK-5/2018/2912 in Form STK-5, the Registrar of Companies (ROC) had sought explanation from the company as to why its name should not be struck off from the register of companies, on account of not carrying on any business or operation for a period of two immediately preceding financial years and having not made any application within such period for obtaining the status of a dormant company under section 455 of the Companies Act, 2013.

The Appellant has stated that, it is not known whether M/s. India Premier Services Private Limited Private Limited has made any representation to the ROC in pursuance of the STK -5 but. It was found during the course of the assessment/reassessment proceedings that the name of the company was struck off from the register of companies vide notice dated 08.08.2018 being Public Notice no. ROC-DEL/248(5)/STK-7/4865 in Form STK-7 (Company's name appearing at Sl. No. 9153) as per MCA master data of the company. The legality of the striking off the name of the company, from the register of the companies has been assailed by the Appellant on the ground that the assessment / reassessment was to result in an addition of nearly Rs. 10,15,000/- to the income of the Company.

The Appellant further states that, Assessment Order dated 22.12.2016 has since been passed under section 153A of the Income Tax Act, 1961, which has resulted in creation of demand of Rs. 26,389,220/- which was required to be paid within 30 days, failing which consequences are to follow in accordance with provisions of Income Tax Act, 1961. Copy of the assessment order alongwith Demand Notice has been annexed with the appeal. The Respondent Company failed to furnish its return of income within stipulated time as required under section 139(1) of the Income Tax Act, 1961 for A. Y. 2013-14, therefore penalty notice dated 22.12.2016 under section 271(1)(c) was issued. Copy of penalty notices has been annexed with the appeal.

The Appellant further states that, Assessment Order dated 22.12.2016 has since been passed under section 143(3) of the Income Tax Act, 1961, which has resulted in creation of demand of Rs. 37,710,230/- which was required to be paid within 30 days, failing which consequences are to follow in accordance with provisions of Income Tax Act, 1961. Copy of the assessment order alongwith Demand Notice has been annexed with the appeal. The Respondent Company failed to furnish its return of income within stipulated time as required under section 139(1) of the Income Tax Act, 1961 for A. Y. 2014-15, therefore penalty notice dated 22.12.2016 under section 271(1)(c) were issued. Copy of penalty notices has been annexed with the appeal.

The Appellant has filed its affidavit of service on 14.08.2019 and stated that service has been affected on Respondents Company and its directors through Publication in English newspaper "Business Standard", Delhi edition dated 25.04.2019 and the name of the Respondent Company and its Directors was appearing at Serial No. 16 on Page No. 14. The publication was also done in Hindi newspaper "Jansatta", Delhi edition 25.04.2019 and the name of the Respondent Company and its Directors was appearing at Serial No. 16 on Page No. 3. Copy of newspapers has been annexed along with the affidavit.

The Income Tax Department is an aggrieved party within the meaning of section 252(1) as it has to recover taxes payable by respondent company and great prejudice will be caused to the Appellant if the name of the respondent company is not restored back. In the above circumstances, this appeal is allowed. The Registrar of companies is therefore directed to restore the name of the Respondent Company in their Register and also proceed to take such other and further penal action against the Respondent Company in accordance with the statutory provisions. The name of the Respondent Company shall then, as a consequence, stand restored to the Register of the Registrar of Companies, as if the name of the company had never been struck off in accordance with Section 248(1) of the Companies Act, 2013.

The appeal is disposed of accordingly.

Let the copy of order be supplied to parties.