Income Tax Office Ward 8(1) vs Registrar Of Companies And Ors

Dr. V.K. Subburaj, Member (T)

This appeal 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, viz. M/s. E-Fame Adsense Pvt. Ltd., in the Register of Companies maintained by the Registrar of Companies ("RoC"), Respondent No. 1.

Service was duly effected on the Respondents. Other than the RoC, none appeared on behalf of the other Respondents to oppose the prayer made by the Appellant. The RoC submitted that they have no objections to the prayer of the Appellant being granted by this Tribunal.

Vide proceedings initiated by the Ministry of Corporate Affairs, through the office of the RoC several names of companies were struck off for want of statutory filings. Respondent No. 2 company, which had also not filed any returns or financial statements was duly struck off from the register of companies.

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 Respondent 2. As per averments, information was received from the Deputy Director of Income Tax (Inv.) Unit-2(2) Kolkata vide communication dated 27.02.2019 inter-alia informing about suspicious financial activities of the respondent company and that the respondent company has total credits of Rs. 1,30,64,771/- out of that an amount of Rs. 26,88,800/- was deposited in cash in its bank account No. 911020062274527 during the financial year 2011-12 relevant to A.Y. 2012-13.

Analysis of the information received from the Investigation Wing revealed that the respondent company has credits/deposits in its bank account worth Rs. 1,30,64,771/-. As per AIR, the respondent company has also cash deposits of Rs. 2,00,000/- or more with ICICI Bank during the financial year 2011-12 relevant to the A.T. 2012-13.

As respondent did not disclose fully and completely all the material particulars in its ITR for A.Y. 2012-13, the appellant has reasons to believe that the income/funds credited/deposited in the respondent company's bank account has escaped assessment within the meaning of Section 147/148 of the I.T. Act, during A.Y. 2012-13 and remained untaxed, thereby rendering the company liable for consequences under Income Tax Act, 1961 and entitling the Revenue to initiate proceedings against the company. Thus, prima facie, there appears tax evasion which requires action in accordance with law.

Approval of the competent authority, for re-opening of the assessment of the respondent company was obtained after recording reasons for re-opening.

Therefore, appellant has issued dated 31.03.2019 notice under section 148 of the I.T. Act for A.Y. 2011-12 to the respondent company. The case of the respondent company has been re-opened under section 147 of the I.T. Act for assessing the aforesaid transactions in the hands of the company.

The re-assessment proceedings in respect of the respondent company for the A.Y. 2012-13 is still pending and getting barred by time on 31.12.2019.

From the MCA website, appellant had become aware that the said respondent company has been "struck off of the respondent company under section 248 of the Companies Act, 2013, the company does not stand dissolved for the purpose of discharge of obligations of the company including obligation to file return and get assessment.

It is therefore necessary in order to enable the appellant to pass the valid Assessment order and take steps for recovery of taxes and for any further consequential proceedings, that the respondent company's name be restored to the Register of Companies as if the name of the company was never struck off. The restoration of the name of the company to the Register of Companies would be just and equitable and in public interest.

The Income Tax Department is an aggrieved party within the meaning of section 252(1) read with section 252(3) of the Companies Act, 2013 if the name of the respondent company is not restored back, great prejudice will be caused to Revenue and public at large. For framing the assessment order and for recovering the taxes due, it is necessary that the Respondent 2's name be restored to the register maintained by the RoC.

In view of the grounds raised by the Appellant which remain un-rebutted, their prayer merits consideration. The appeal is therefore allowed. The RoC is therefore directed to restore the name of Respondent 2 in its register and also proceed to take such other and further penal action against the respondents in accordance with the statutory provisions.