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Judgment
This petition 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, SCC Forex Pvt. Ltd., in the Register of Companies maintained by the RoC, respondent no. 1.
Service was duly effected on the respondent company and its Directors. Other than the RoC, none appeared on behalf of the respondent no. 2, 3 & 4 to oppose the prayer made by the petitioner, hence were proceeded ex-parte. Respondent No. 1 the RoC specifically submits that they have no objections to the prayer of the petitioner being granted by this bench.
Vide Proceedings initiated by the Ministry of Corporate Affairs, through the office of the RoC, names of several companies were struck off for want of filing Statutory Returns.
Respondent no. 2 company, which had not filed any Return or Financial Statement after the year 2009, was duly struck off from the Register of Companies vide STK-7 dated 08.08.2018.
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
them. As per averments, the information available with the Income Tax Department system states that during the Financial Year 2010-11 relevant to the A.Y. 2011-12 the respondent no.2 company has deposited cash amounting to Rs. 4,91,81,140/- in its bank account. The respondent company has not filed its ITR for A.Y. 2011-12 and has violated the provision of section 139 of the Income Tax Act, 1961. Failure to file a return is deemed to be a case in which income has escaped assessment in terms of Explanation 2 to section 147 of the Income Tax Act, 1961.
The respondent no. 2 company did not file its ITR and did not disclose fully and truly all material facts necessary for assessment. Hence, an estimated amount of Rs. 39,34,491/- being 8% of Rs. 4,91,81,140/- has escaped assessment within the meaning of section 147/148 of the Income Tax Act, 1961 and has not been brought under tax for A. Y. 2011-12.
Ld. Standing Counsel for the IT dept. submits that there are recovery & penalty proceedings pending under Section 148 of Income Tax Act. Action in accordance with law is required to be initiated against the company. Notice on 31.03.2018 under section 148 of the IT Act, 1961, was issued to the respondent at its registered address/ email id as well as vide affixation to which there has been no response.
Ld. Counsel for the Income Tax Submits that the aforesaid facts necessitate restoration of the name of the Respondent Company in the Register of Companies to proceed further in accordance with law. In view of the grounds raised by the applicant, being an aggrieved person, the prayer can be entertained u/s 252(3) of the Code.
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 averment made in the petition and in no way endorse or have adjudicated about their entitlement to recover 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 off in terms of the above. Compliance be made with the RoC within 30 days.
The petition is therefore allowed. The RoC 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 respondents in accordance with the statutory provisions.