Income Tax Department vs Registrar Of Companies NCT Of Delhi & Haryana And Ors

SumitaPurkayastha (Member Technical)

This Appeal has been filed by Income-tax Department, Ward (16(1), New Delhi invoking the provisions of Section 252(3) of the Companies Act,

2013 for restoration of the name of the Respondents Company M/s. M.B. Jewellers Pvt Ltd, Shop No.5, Rani Jhansi Market, Karol Bagh, New Delhi

110 005 in the register maintained by the Registrar of Companies, NCT of Delhi &Haryana.

As per the averments, M/s. M.B. JewellersPrivate Limited,New Delhi was incorporated on 23.10.1991 as a private limited company and has its

registered office at Shop No.5, Rani Jhansi Market, Karol Bagh, New Delhi 110 005 having CIN No. U74899DL1991PTC046128. The business of

the appellant company is to carry outsale / purchase of bullion. The Authorised and Paid -up share capital of the respondent is Rs.4,00,00,000/- and

Rs.1,42,82,000/- respectively. The respondent company filed its last balance sheet for the year ended 31.03.2014.

A sweeping action was initiated by the ROC at the instance of MCA in striking off the names of several Companies who had failed to file their

Statutory Returns. Consequently, its name was struck off by the Respondent RoC from the Register of Companies under Section 248 of the

Companies Act, 2013 vide notification dated 08.08.2018 at Sr. No.11832. The company was in operation during the said period but due to their default

in carrying out the statutory compliances their name was struck off from the Register of the ROC

The Appellant â€"Income Tax Department has a system of collecting information from various sources mainly regarding bank deposits, investments

in mutual funds, shares, credit card expenditure, sale/ purchase of immovable property , deduction of tax at source by payers of amount, foreign

remittances, custom duties paid, service tax paid , other high value transactions etc. The appellant Income-tax Department selected the company for

scrutiny assessment under Computer Aided Scrutiny Selection (CASS) process and observed that during De-monitisation period (8.11.2016 to

31.12.2016), the respondent company deposited cash amounting to Rs.3,12,60,500/- in Bank Account with Central Bank of India, Karol Bagh, New

Delhibranch and did not fully and truly disclose all material particulars to the Appellant, thus a Notice dated 16.08.2018 U/s.143(2) of the Income tax

was issued to the respondent company calling them to prepare a true and correct return of its income in respect of A.Y. 2017-18. The said

proceedings are pending against respondent company. Further Notice dated 22.08.2018 U/s.142(1) of the Income-tax Act was also served upon the

respondents. The appellant raised Assessment Order dt.14.11.2018 along with Demand Notice dated 25.12.2019 u/sec.144 of the Income Tax Act,

1961 wherein demand of Rs.3,43,91,665/- has been created against the respondent company. The appellant submitted that as respondent company has

made evasions under different provisions of Income â€"tax Act hence notices dated 25.12.2019 u/sec.271AAC, 272(A)(1()(d), 270A and 271B of

Income-tax Act, 2961 has been issued to the respondent company. The respondent company had failed to disclose fully and truly all material

particulars to the appellant Income tax department.

The appellant Income-tax submitted that as per provisions of Sec.250 of Companies Act, 2013, despite “Strike Office†of the respondent

company u/sec.248 of Companies Act, 2013, the company does not stand dissolved for the purpose of discharge of obligations of the company

including obligations to file return and get assessment.

The Appellant Income Tax Department submitted that in order to enable them to frame the assessment and to take steps for recovery of taxes and

for further consequential proceedings against the respondent company, the company’s name be restored to the Register of Companies as if the

name of the Company was never struck off. The respondent company has been in continuous business operations.

The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes

that, if it is just and equitable to restore the name of the respondent- company in the Registrar of Companies, it may direct the RoC to restore the

name in its Register.

The appellant Income-tax hasbeen able to satisfy this Bench that they are the aggrieved party within the meaning of Sec.252(1) read with Section

252(3) of Companies Act, 2013 and great prejudice will be caused to Revenue and public at large, if the name of the respondent company is not

restored back.

The Appellant has filed its affidavit of service on 05.02.2020, wherein it states that service through publication was effectedthrough newspapers

Financial Express and Jansatta on 30.01.2020 on the Respondent Company and its Directors in pursuance of the order of this Tribunal. It is further

stated that in spite of proper service to the respondent nos. 2 to 4, none appeared. Hence, the case was proceeded ex-parte against the said

Respondents vide order dated 03.03.2020. On 15.10.2020 respondents 2 to 4 put in appearance and both the sides agreed to revival of the respondent

company.

The Income Tax Department is an aggrieved party within the meaning of section 252(1) and a creditor under Section 252(3) as it has to recover

tax demand and penalty from the 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 Registrar of companies is therefore directed to restore the name of the

Respondent Company in their Register.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 direction for freezing the Bank Account(s) of the respondent company, if any, on this ground shall consequently be also set aside immediately

to enable the company carry out its business operation. Compliance of this order for restoration shall be made by the respondent with all its

consequential effects within one week of compliance by the appellant.

The petition is disposed of accordingly.

Let the copy of the order be served to the parties.