Dy. Commissioner of Income Tax, Circle 1(1), Chandigarh vs Registrar of Companies

L. N. Gupta, M (T) & Sh. Harnam Singh Thakur, M (J)

The Dy. Commissioner of Income Tax, Circle 1(1), Chandigarh has preferred the present Appeal under Section 252(3) read with Section 248 of the Companies Act, 2013, on being aggrieved by the action of the Registrar of Companies (“RoC”) in striking off the name of M/s BHS Decent Homes Builders Private Limited (“the Company”/R-2).

It is stated by the Appellant that “the Company” is an unlisted Private Limited Company incorporated under the Companies Act, 1956 on 10.09.2009 with CIN No. U70109CH2009PTC031765. The Authorised Share capital of the Company is Rs. 1,00,000/- and the Company’s paid-up capital is Rs.1,00,000/-. The Registered Office of the Company is situated at SCO-2465/66, 1ST Floor, Sector-22 C Chandigarh - 160022, which is within the territorial jurisdiction of this Tribunal.

It is stated by the Appellant that the RoC Haryana initiated proceedings under Section 248 of the Companies Act, 2013, and struck off the name of the Company from its Register vide Notice No. STK 7/Sec. 248/751 dated 11.09.2018. The name of the Appellant Company appeared at serial no. 2615 of the list of Companies, whose names were struck off and dissolved due to default in statutory compliances.

It is further stated by the Appellant that the Assessee Company (R-2) and its Directors violated provisions of the Income Tax Act 1961 for which, proceedings were initiated against the Assessee Company and notice under section 148A(b) of Income Tax Act, 1961 was issued by the Appellant on 20.03.2023 for the Assessment Year 2016-17.

It is submitted by the Appellant that the Respondent no. 2/ Assessee has sold of immovable property during the Financial Year 2015-16 relevant to A.Y. 2015-16, which were reported on Insight portal. While analysing the ITR filed by the Assessee of A.Y. 2015-16, the Appellant/Revenue found that the amount of Rs. 1,20,82,500/-has escaped by the Assessee Company, for which the proceedings under Section 147/148 of the Income Tax Act,1961 are pending.

It is stated by the Appellant that the Revenue/Department came to know from the MCA portal that the said Respondent Company’s name was struck off by ROC vide Form STK-7 notice dated 11.09.2018.

It  is  further  stated by  the  Appellant  that  the  Income  Tax Department is an aggrieved party and a creditor within the meaning of Sec 252(3) of the Companies Act, 2013 and great prejudice will be caused to Revenue and public at large if the name of the Respondent is not restored back in the Register of Companies.

On issuance of notice, ROC filed its reply/written statement dated 22.02.2024, stating that ROC has no objection to the present Appeal and if the name of the company is restored in the register of ROC.

After hearing the submissions of the Appellant & of Respondent no.1 (RoC) and perusing the documents placed on record, it is observed that the name of the company was struck off from the register of ROC on 11.09.2018 and all the demand notices and assessment orders were passed later when the name of the Company was already struck off from the register of ROC.

Since the present appeal has been filed on 31.03.2023 under Section 252(3) of the Companies Act, 2013, we would like to examine whether the Appeal is maintainable in terms of Section 252(3) of the Companies Act 2013 and is filed within the limitation period.

At this juncture, we refer to Section 252(3) of the Companies Act, 2013, which reads thus:

“252. Appeal to Tribunal.— (3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies.

(Emphasis Supplied)

On perusal of the aforesaid provision, we find that any person, aggrieved by an order of the ROC, can challenge the striking-off action before this Tribunal within 20 years from the date of the order.

In the instant case, the appeal has been filed on 31.03.2023 and the company was struck off on 11.09.2018, which is within the period of 20 years. Therefore, we find that the present Appeal has been filed within the limitation period as prescribed under Section 252(3) of the Companies Act, 2013.

For the purpose whether the Dy. Commissioner of Income Tax, Circle 1(1), Chandigarh, the Applicant herein is a “creditor” within the meaning of Section 252(3) of the Companies Act, 2013, we refer to the order passed by NCLT, New Delhi Bench II in the matter of “Income Tax Officer Ward-3(1) Vs. ROC (M/s. Arora Fincap Ltd.)” Company Appeal No. 208/252/ND/ 252, wherein Coordinate Bench vide its order dated 19.05.2023 observed the following-

“17. It is a matter of record that the Assessment order was passed by the Appellant on 19.03.2022, i.e., subsequent to the date of  striking off. Therefore, we would like to examine Whether the Appellant/Income Tax Department can be considered as a Creditor on the basis of the Assessment Order, passed subsequent to the date of striking off.

From the conjoint reading of Section 250 of the Companies Act 2013 and Chapter XV, Clause (L) of the Income Tax Act, we are of the view that the Income Tax Department is empowered to assess the tax liability of a Company even after its dissolution/striking off.

However, we would still like to examine Whether the Income Tax Department is a Creditor. The Term “Creditor” though not defined under the Companies Act, 2013, is defined under Section 3 (10) of IBC, 2016, which reads thus:

…..

In terms of the above, the dues of the Income Tax Department arising out of the dues under the Income Tax Act like the case herein will be covered within the ambit of the Operational Debt. Hence, it can be concluded that the Income Tax Department is an “Operational Creditor” under Section 5(20) of the IBC 2016 and would be a “Creditor” under Section 3 (10) of IBC, 2016

In view of the aforesaid findings, we are of the considered view that the Income Tax Department is “a Creditor” for the purpose of filing the present Appeal under Section 252(3) of the Companies Act 2013, and accordingly, the Appeal is maintainable.”

We are of the view that the findings in the “Income Tax Officer Ward-3(1) Vs. ROC (M/s. Arora Fincap Ltd.) Company Appeal No. 208/252/ND/ 252” squarely covers the present case. Accordingly, we find the  present  Appeal  maintainable under  Section  252(3)  of  the Companies Act, 2013.

The Appellant has mainly filed its appeal to recover the Income Tax/Government dues and the Appeal has not been objected to by any of the Respondents including the ROC. Accordingly, in a sequel to the above, the present Appeal is allowed. The ROC is directed to restore the name of the Company namely, M/s BHS Decent Homes Builders Private Limited in its Register, as if its name had not been struck off.

ROC Haryana is also directed to take other penal action against the Respondents for default, if any, in accordance with the statutory and legal provisions.

Let a copy of the Order be supplied to the parties.