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

This appeal is filed byIncome Tax Department throughAssistant Commissioner of Income Tax, Circle- 16(1), New Delhi, having office at Room No. 225D, C.R. Building, I.P. Estate, New Delhi- 110002 (for brevity the 'appellant'), under Section 252(1) r/w Section 252(3) of the Companies Act, 2013 (for brevity 'the Act') read with Rule 7 &9 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 by Registrar of Companies, the respondent herein.

The respondent no. 2, M/s Maa Pitambara Infrastructure Private Limited,having its registered office at Office No. 109, A-115, 1st Floor, Vakil Chambers, Shakarpur Delhi, East Delhi- 110092, bearingCIN U45400 DL2008 PTC182168,Mr. Ravindra Bhan Kanchan and Mr. Hridesha Kumar are respondents no.3 and 4 who are directors of the company.

It is submitted that as per 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 A.Y. 2012-13, the respondent-company has made cash deposits aggregating to Rs. 2,00,000/- or more with a banking company, further the respondent-company has received interest other than interest on securities amounting to Rs. 1,90,800/- on which TDS had been deducted under Section 194A of the Income Tax Act, and the respondent-company has received contractual receipts amounting to Rs. 5,47,69,331/- on which TDS had been deducted under Section 194C of the Income Tax Act.As per appellant, the respondent no. 2 did not file its ITR and did not disclose fully and truly all material facts necessary for assessment, thus, the Assessing Officer has reason to believe that an income amount ofat least Rs. 5,50,60,132/- had escaped assessment.

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, for income against the credit foramount of at least Rs. 5,50,60,132/-. Denial to restore the name of the respondent-company in the Register of the ROC, will be prejudicial to the interest of the revenue in the long run.

After approval from the Principal Commissioner of Income Tax- 6,notice under Section 148 of the IT Act, dated 26.03.2019 was issued. The said notice was never replied to, by the Directors nor by any other representative of the company.

The Assessment Order was passeddated 26.11.2019and further Penalty Orderwas also passed, against respondent no. 2 company for the A.Y. 2012-13.

On perusal of the MCA website, the Appellant has come to know that the name of the respondent 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 vide notice by the ROC.

The Respondent herein had issued Public notice bearing No. ROC/DELHI/248/STK-5/721 dated 27.04.2017. Consequently, Appellant's name was struck off vide notice bearing No. ROC/DELHI/248(5)/STK-7/2879 dated on 30.06.2017 (Company's name appearing at Sl. No. 11485) whereby name of 22864 companies have been struck off w.e.f. 07.06.2017 from the Registrar of Companies.

The respondents were served with appeal and service affidavit has been filed. The respondents no. 2 to 4 were served through publication in one English and one vernacular newspaper vide publication dated 30.01.2020. None appeared on behalf of the respondents no. 2 to 4. Hence, respondents no. 2 to 4 are proceeded ex-parte vide order dated 07.01.2021.

The appellant submitted that the Income Tax Department being aggrieved person and also creditor under Section 252(1) and 252(3) of the Companies Act, 2013 by the removal of the name of the Company from the register by the Registrar of the Company as for the reopening of assessment proceedings the Company has to be in existence.

In 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 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 not been struck off in accordance with Section 248(1) of the Companies Act, 2013.

The Appeal is allowed and disposed of.

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