Deputy Commissioner Of Income Tax vs Registrar Of Companies, Punjab And Chandigarh And Others

The present petition in Form NCLT No. 9 is filed by the Deputy Commissioner of Income Tax, Central Circle-I, Aaytan Tower, Civil Lines,

Jalandhar (Punjab)- 144001 (hereinafter referred to as the ‘petitioner’) under Section 252(1) of the Companies Act, 2013 (hereinafter referred

to as the ‘Act’) seeking restoration of the name of M/s Glitter Exim Private Limited, respondent No. 2, (hereinafter referred to as

‘respondent-company’). The CIN of the respondent-company is U74999PB2009PTC032754. As per the master data of the respondent-

company, attached at Annexure 3 of the petition, the company was incorporated on 15.04.2009. The registered address of the respondent-company is

at Bath Castle GT Road, Opposite McDowel Restaurants, Jalandhar- 144 001 and therefore, the matter lies within the territorial jurisdiction of this

Tribunal.

The petition is accompanied by the affidavit which is signed and verified by Shri Dinesh Kumar Gupta, Deputy Commissioner of Income Tax, the

same is at Page 30-32 of the petition.

As per master data of the respondent-company, its Authorized Share Capital is Rs. 2,00,00,000/- and Paid-up Share Capital is Rs. 2,00,00,000/-.

The Memorandum and Articles of Association are part of the record and the same is at Annexure A-2 of the paper book. The main objects of the

Company are as under:â€

“1. To carry on the business of importers, exporters, traders, buyers, sellers, exchange, hold and deal in all types of jewellery,

ornaments, gems, gold jewellery, metal jewellery, silver jewellery, artificial jewellery, diamonds, stones, bullions, precious metals, precious

stones, pearls, coins, cups, medals, antiques, valuables, shields and other fashion related accessories.â€​

It is stated in the petition that Respondent No. 1, Registrar of Companies, Punjab and Chandigarh (â€R˜OC’), struck off the name of the

Company from the Register of Companies due to defaults in filing the financial statements and annual returns. It is also stated that respondent No. 2-

company had not filed its Annual Returns and Financial Statements with ROC since its incorporation. It is further stated that respondent No. 1 invoked

the provision of sub-section (5) of Section 248 of the Companies Act, 2013 for removing the name from the Register of Companies and vide Form

STK-7 dated 04.06.2018, removed the name of respondent no. 2-company from the Register of Companies maintained by it, vide Notification dated

04.06.2018, as per ROC Report, filed vide Diary No. 5219 dated 30.09.2019.

It is stated that a search and seizure operation under Section 132(1) of the Income Tax Act, 1961, was carried out on 27.12.2017 at the registered

address of the respondent No. 2-company. Copy of the warrant of authorization for search under the Income Tax Act, 1961, is appended with the

petition as Annexure A-6. It is further submitted that pursuant to such search and seizure operation, proceedings under Section 153A of the Income

Tax Act, are yet to be initiated for the assessment years 2012-13 & 2017-18 and also under Section 142(1) of the Income Tax Act, for the

assessment year 2018-19.

It is submitted that only while contemplating the proceedings under Section 153A of the Act, the Assessing Officer came to know the fact of

‘struck off’ status of respondent No. 2-company in the Register of Companies, maintained by respondent no. 1 and was unable to initiate any

further proceedings against respondent No. 2 under the Income Tax Act due to removal of the name of respondent No. 2 from the Register of

Companies.

It is also contended that a letter dated 11.09.2018 has been forwarded from the office of Deputy Commissioner of Income Tax, Circle IV, Room

No. 103, C.R. Building, Jalandhar to the respondent No. 1-ROC requesting revival of respondent No. 2 company, so that the pending income tax

proceedings can be carried out. Copy of the said letter has been appended as Annexure A-7 of the petition.

It is further submitted that the Principal Commissioner of Income Tax-2, Jalandhar, transferred the above case to the present petitioner for

coordinated investigation and administrative convenience and hence this petition. Copy of the order in this regard is placed at Annexure A-8 of the

petition.

Vide order dated 09.08.2019, notice of this petition was directed to be issued to the Respondent Nos. 1 to 4 at their registered address along with

copy of the petition.

The ROC has filed the report vide Diary No. 5182 dated 27.09.2019. It is stated that Registrar of Companies, Punjab and Chandigarh had issued

notice to the company and its directors in terms of Section 248 of the Companies Act, 2013 read with Rule 7 & 9 of Company (Removal of Names of

Companies from the Register of Companies) Rules, 2016 because the company had not field the statutory annual documents with the Registrar of

Companies for the last 7 years i.e. 2009-10 to 2015-2016 and believing that the company was not carrying on business or not in operation at the time

of struck off and pursuant to which the name of respondent No. 2-company was struck off, vide notification dated 30.06.2017. It has been prayed that

the matter may be decided on its merit and respondent No. 2 to 4 may be directed to file all the pending documents including all the due Annual

Returns and Balance Sheets along with the requisite fee and additional fee as prescribed in the Rules.

On the last date of hearing, learned counsel for the Respondent No. 3 submitted that they have no objection for restoration of the company and

that the CP may be allowed.

There has been no representation from respondent No. 2 and 4 so far.

We have heard the learned counsel for the petitioner-Income Tax Department and the learned counsel for the Respondent No. 3 and have also

perused the record.

The relevant Section 252(1) of the Act is as follows:â€

(1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the

Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of

the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was

passed by the Registrar, it may order restoration of the name of the company in the register of companies:

Provided that before passing any order under this section, the Tribunal shall give a reasonable opportunity of making representations and

of being heard to the Registrar, the company and all the persons concerned:

Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either

inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of

companies, he may within a period of three years from the date of passing of the order dissolving the company under section 248, file an

application before the Tribunal seeking restoration of name of such company.â€​

The present petition has been filed by the Income Tax Department, who is aggrieved by the order of ROC and is within three years' time period

after the publication of official notification, striking off the name of respondent No. 2 from the Register of Companies.

The learned counsel for the petitioner-Income Tax Department submitted that the Department is unable to conduct any further proceedings under

the Income Tax Act, 1961, due to the present ‘inactive’ status of respondent No. 2-company and has filed this appeal accordingly.

The learned counsel for the Income Tax Department also laid emphasis on the provision of Section 248(6) of the Act and contended that the

procedure prescribed under the provisions was not followed. Section 248(6) of the Act reads as under:â€

“(6) The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the

realisation of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a

reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the

management of the company:

Provided that notwithstanding the undertakings referred to in this subsection, the assets of the company shall be made available for the

payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the

register of companies.â€​

It is to be seen that whether respondent No. 1 has complied with the provisions as stated in Section 248(6) of the Act. It could be observed from

the above stated provision that before passing the order of striking off the company from the Register of Companies, the ROC need to have make

sufficient provision for the payment or discharge of its liabilities and obligations by the company within a reasonable time. It is quite evident from the

contents of petition that respondent No. 1 has failed to provide notice to the petitioner-Income Tax Department before taking any action under Section

248(5) of the Act.

It is also observed that allowing this petition would only enable the petitioner to conduct further proceedings under the Income Tax Act. Therefore,

this petition deserves to be allowed.

It is therefore, held that ingredients provided for in 252(1) of the Act, are satisfied.

In view of the above, the petition is allowed and it is just and equitable to restore the name of respondent No. 2-company in the Register of

Companies. Further directions are issued as under:

a) The petitioner shall deliver a certified copy of the order to the Registrar of Companies within 30 days from the date of receipt of certified copy of

this order;

b) On such delivery, the Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette;

c) The Respondent No. 2-Company is directed to pay the requisite fee for filing the Balance Sheets and Annual Returns up to date with the applicable

fee and the additional fee as prescribed in the Rules;

d) The Respondent No. 2-Company shall file pending financial statements and Annual Returns with the Registrar of Companies and comply with the

requirements of the Companies Act, 2013 and rules made thereunder within one month of the notification of restoration of the company's name in the

Register of Companies;

e) The Registrar of Companies will be at liberty to proceed against the company and its officers for the delay in filing of the Balance Sheets and

Annual Returns for the years in default; and

f) The Income Tax Department may take necessary action as per law for non-filing or belated filing of the Income Tax Returns of the Respondent

No. 2-Company for any of the assessment year and also for recovery of outstanding demand, if any or for violation of any other provisions of the

Income Tax Act, 1961.

Copy of this order be communicated to the petitioner-Income Tax Department and Respondent Nos. 1 to 4.