Asst. Commissioner Of Income Tax Officer vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The appeal is filed by the Asst. Commissioner of Income Tax, Centre Circle - 25(1), New Delhi, against the striking off of the name of the M/s. Team Orange Communication 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 28.02.2007 having CIN No. U72300DL2007PTC159886 with Authorized capital Rs. 1,00,000/- and paid up capital of Rs. Nil. The registered office of the company is stated to be at 161 A, 1st Floor, Gautam Nagar, New Delhi - 110049. Therefore, the jurisdiction lies with this Bench of the Tribunal.

The appellant states that as per the information available with the Revenue through NMS/ITD Software, and information from AIR/CIB Statements, and individual Transaction Statements (ITS) and 26AS, from where it is observed that the Respondent Company has received Contractual receipts amounting to Rs. 8,90,370/- and Fee for Professional/Technical services amounting to Rs. 19,12,486/- on which TDS has been deducted by the payer under Section 194C and 194J of the Income Tax Act respectively, during the financial year 2010-11 relevant for A. Y. 2011-12.

The Appellant submits, that the case of M/s. Team Orange Communications Private Limited was identified by the Non-Filer Monitoring System (NMS) as the company had not filed its Income Tax Return for the Assessment Year 2011-12 and did not disclose fully and truly all material particulars, therefore, the Assessing Officer had reasons to believe that an estimated amount of at least Rs. 10,27,473/- (i.e. Rs. 71,230/- on the standard rate of profit 8% on the gross contractual receipts of Rs. 8,90,730/- and Rs. 9,56,243 on 50% of the fee for professional or technical services of Rs. 19,12,486/-) has escaped assessment for A.Y. 2011-12, thereby rendering the company liable for consequences under Income Tax Act, 1961 and entitling the Revenue to initiate proceedings against the company.

It is submitted by the Appellant, that the notice under section 148 of the Income Tax Act 1961, dated 30.03.2018 for A.Y. 2011-12 and the notice dated 23.05.2018 & 27.08.2018 under Section 142(1) of the Income Tax Act 1961 in connection with A.Y. 2011-12, was issued to M/s. Team Orange Communication Private Limited and that assessment/reassessment proceedings so initiated were getting barred by limitation on 31.12.2018 as per the provision of section 153(2) of Income Tax Act, 1961.

It is further submitted by the Appellant, that additionally notice under section 148 of the Income Tax Act 1961, dated 30.03.2019 for A.Y. 2011-12, was issued to M/s. Team Orange Communications Private Limited and that assessment/reassessment proceedings so initiated were getting barred by limitation on 31.12.2019 as per the provision of section 153(2) of Income Tax Act, 1961.

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. Team Orange Communications Private Limited 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. 21669) 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. 10,27,470/- to the income of the Company.

The Appellant further states that, Assessment Order dated 22.12.2018 has since been passed under section 147/144/143 of the Income Tax Act, 1961, which has resulted in creation of demand of Rs. 8,061/- 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. 2011-12, therefore penalty orders dated 20.06.2019 under section 271F for an amount of Rs. 5000/- were issued. Copy of said orders have been annexed along with the appeal.

The Appellant has filed its affidavit of service on 26.07.2019, it has been stated that the copy of appeal was served on Respondent No. 2 served through email dated 02.03.2019 on the email address mentioned in MCA Portal, copy of email is annexed along with the Affidavit. Service was affected on Respondent No. 3 and 4 through "Dasti" by the Authorised Representative of the Income Tax. The acknowledgement issued were forwarded by the Appellant by email to the standing counsel of Income Tax Department. Copies of acknowledgment has been annexed with the affidavit.

The appellant has further filed affidavit of service dated 11.09.2019 and stated that in compliance of order dated 26.07.2019 of Hon'ble Tribunal a fresh notice was served to the Respondent No. 2 through an email dated 06.09.2019 on its registered email address as per the MCA portal and the same did not bounce back. Service to the Respondent no. 3 & 4 was affected through speed post on 17.08.2019 at the last known address as per the MCA portal and the same were duly delivered. Copy of the email and the postal receipts along with tracking report have been annexed 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 Re gistrar 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.