Assistant Commissioner Of Income Tax (OSD) vs Registrar Of Companies And Ors.

This appeal is filed by Income Tax Department, through its Assistant Commissioner of Income Tax, Ward No. 22(1), 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 company M/S SD Sunrise Trading

Private Limited (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 30.07.2010 having CIN U51900DL2010PTC205169.

The company is having registered office at Shop No. 232, Second Floor, D.C. Vardhman Plaza Plot No. 5, Sector-II, Dwarka, New Delhi-110075.

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 is duly effected on the respondents. Other than the Registrar of companies, none appeared on behalf of the

Responded No. 2 to 4 i.e. company or ex-directors. Respondent No. 2 to 4 were proceeded ex-parte. The 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 company has

made deposits in cash aggregating to Rs. 2,00,000/- or more with a banking company during the A.Y. 2011-12. Further from the Non-Filters

Monitoring System, it is observed that the company has not filed its return of income for the A.Y. 2011-12.

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 31.03.2018 under section 148 of the Income Tax Act, 1961 was

issued to the respondent at its registered address through speed post 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 copies of notices dated 21.06.2018 & 24.07.2018 under Section 142(1) (Enquiry Before Assessment) of the Income Tax Act, 1961 which is at

Annexure -6, were served only to the Respondent No. 2 to 4 to which no response was ever received, from the respondents.

The Ld. Counsel for the Income Tax submits that in order to enable the income tax department to recover the taxes on the undisclosed income, of

the company and to charge and recover the revenue from the transactions of the company during the A.Y. 2011-12, if any, 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, and revenue payable by the company cannot be recovered.

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.