Assistant Commissioner Of Income Tax vs Registrar Of Companies And Ors.

This appeal has been filed by Income Tax Authority invoking the provisions of Section 252 of the Companies Act, 2013 for restoration of the name

of the Respondent No.2 Company, viz M/s. N S Cargo Movers Private Limited in the Register of Companies maintained by the Registrar of

Companies (""RoC""), Respondent no. 1.

Service of notice was duly effected on the Respondents. Other than the RoC, none appeared on behalf of the other Respondents to oppose the

prayer made by the Appellant. The RoC submitted that they have no objections to the prayer of the Appellant being granted by this Tribunal.

Vide proceedings initiated by the Ministry of Corporate Affairs, through the office of the RoC several names of companies were struck off for

want of statutory filings. Respondent no.2 Company, which had also not filed any returns or financial statements, was duly struck off from the register

of companies.

Invoking the provision of Section 252 of the Act, the Income-Tax Dept. prays for its restoration in order to carry out proceedings initiated against

Respondent no. 2. As per averments, M/s. N S Cargo Movers Private Limited is incorporated on 61.01.2009 Under the Companies Act, 2013. That at

the time of strike off the registered office of the Assessee. was at House No. 8/123, Delhi Cantt, New Delhi-110010.

The Assessee Company has not filed return of income for the assessment year 2012-13. Pertinent here is the fact that the Assessee is a Company

and is mandatorily required to file its return of income under Section 139(1) of the Income Tax Act, 1961.

From the Information available with the Revenue through NMS/ITD Software, information from AIR/CIB Statements and Individual Transaction

Statements (ITS) and 26AS, it is observed that during the Financial-year 2011-12 relevant to A.Y, 2012-13, the Respondent Company had received

contractual receipts amounting to Rs. 58,27,522/- and Commission or Brokerage amounting to Rs. 584/- on which TDS had been deducted under

Section 194C and 194H respectively of the Income Tax Act.

As the Respondent Company did not file the Income Tax Return for A.Y. 2012-13 and did not disclose fully and truly all the material facts

necessary for assessment, the Appellant has reason to believe that an amount of at least Rs. 58,28,106/- has escaped assessment within the meaning

of Section 147 of the Income Tax Act, and. remained untaxed during the A.Y. 2012-1.3.

That under the Income Tax Act, 1961, every company has to mandatorily file its return of income within the prescribed time as stipulated u/s 139 of

the Act. However, the assessee has not filed its return of income for the Assessment Year 2012-13.

That as the assessee has not filed return of income for AY 2012-13 hence no assessment could be made so as to arrive at correct taxable income

of the assessee. Since no assessment has been made under scrutiny u/s 143(3), the Ld. Assessing Officer had no occasion to scrutinize the

transactions entered into by the assessee during the year.

That for the aforesaid facts the Ld. Assessing Officer had reason to believe that income of Rs.58,28,106/- has escaped assessment for AY 2012-

13 in the case of the assessee within the meaning of Section 147 of the Act.

That the Approval u/s 151(1) for initiating proceedings u/s 148 of the Income Tax Act, 1961 in the case of the assessee was granted by the Pr.

Commissioner of Income Tax-4.

That a notice u/s 148 of the IT Act, dated 29.03.2019, was issued to the assessee after taking due approval of the relevant authorities. However,

the said notice has remained unserved/ uncompiled with.

That during the course of enquiry about the Assessee the Ld. Assessing Officer learned that the Assessee has been struck off from the register

of the Ld. ROC and therefore is no more an existing entity. That the company by getting its name struck off from the register of the Ld. ROC, in the

guise of a dead company, is trying to escape assessment proceeding and liability which may accrue from such proceedings. It is humbly submitted that

the assessment proceedings against a dead company may not hold good in the eyes of law. Therefore, for any assessment proceedings to commence

and continue, the name of the Assessee has to be restored in the register of the Ld. ROC.

That the name of the Assessee has been struck off by the Ld. ROC without any proper enquiry. It is also submitted that neither the Assessing

Officer nor the superiors in the case of the Assessee were informed or made privy to the proceedings for removal of the name of the Assessee

Company from the register of the Ld. ROC.

That the procedure laid down under Section 252 of the Companies Act, 2013 and 560 of the Companies Act, 1956 for getting the name of the

company removed from the register of the Ld. ROC does not in any stretch of imagination can be allowed to be invoked resulting in escapement of

tax liability or any other statutory liability on the company which seeks to get its name removed from the register of the Ld. ROC. It is submitted that

the Ministry of Corporate Affairs, Government of India has introduced schemes to facilitate and enforce these Sections namely Fast Track Exit Mode,

2011 and Easy Exit Scheme, 2011 which specifically disallowed the benefit of Section 550 of the Companies Act to the companies which have

liabilities towards Income Tax Department or any other department of the Central Government or State Government.

That the aforesaid amount of Rs.58,28,106/- is required to be assessed in the hands of the above Assessee Company under the IT Act. It is

submitted that to undertRlce the assessment proceedings the name of the Assessee has to be restored in the register of the Ld. ROC.

That the cause of action arose on 29.03.2019 when the Department issued notice under Section 148 of the IT Act which remained unserved/

uncompiled with. For framing the assessment order and for recovering the taxes due, it is necessary that the Respondent no.2’s name be restored

to the register maintained by the RoC.

Despite several efforts and even alter publication of notice in the Newspaper the Respondents other than AROC remain silent. Finally, they were

set ex-parte vide order dated 19.02.2020.

In view of the grounds raised by the Appellant which remain unrebutted, their prayer merits consideration. The appeal is therefore allowed. The

RoC is therefore directed to restore the name of Respondent no.2 in its register and also proceed to take such other and further penal action against

the respondents in accordance with the statutory provisions.

We, however, make it clear that this Bench has only directed restoration of the name of the appellant company in the Register of Companies

maintained by the RoC on the basis of averments made in the petition and have in no way endorsed or adjudicated about the Applicant's entitlement to

recover any amount as tax etc. which shall be adjudicated by the Department subject to the laws of limitation governing such recoveries. Charges

involved in seeking restoration of the company's name with the office of the ROC shall be borne by the applicant. Petition is disposed of in terms of

the above. Compliance be made with the I<UC within ,3l) clays.