Income Tax Officer vs Register Of Companies And Ors.

Hemant Kumar Sarangi, Member (T)

The appeal is filed By Income Tax Officer, Ward 19(4) New Delhi, against the striking off of the name of the M/s. Pinnacle Realtors Private Limited ("the company"), from the register of companies.

The Appellant states that, the Respondent Company is a private limited company, incorporated under the erstwhile Companies Act, 1956, on 21.07.2004 with CIN No. U45201 DL2004 PTC127741. The Authorized Share Capital of the company is Rs. 5,00,000/- and Paid up Share Capital is Rs. 1,00,000/-. The registered office of the company is stated to be at 2927, SIR Syed Ahmed Road, Daryaganj, New Delhi - 110002. Therefore, the jurisdiction lies with this Bench of the Tribunal.

The Appellant states, that M/s. Pinnacle Realtors Private Limited filed its Income Tax Return for A. Y. 2011-12 on 25.04.2013 declaring loss of (-) Rs. 16,962/-. The return was processed under Section 143(1) of the I. T. Act and the case was not picked up for scrutiny, so there was no scrutiny assessment under Section 143(3) of the I. T. Act. Reassessment proceedings for F. Y. 2010-11 relevant to A. Y. 2011-12 have been initiated under Section 144/147 of the I. T. Act. The appellant has reason to believe that an income of Rs. 1,00,00,000/- plus commission charged @1.5% totaling to Rs. 1,01,50,000/- has escaped assessment during the Financial Year 2010-2011 relevant for the A.Y. 2011-12, and has not been brought under tax for the A. Y. 2011-12, thereby rendering the company liable for consequences under Income Tax Act, 1961.

It is further stated by the applicant, that a search operation was conducted under Section 132 of the Income Tax Act, 1961 on 29.03.2012 at the residence of one Shri Himanshu Verma and its group companies by the Investigation Wing, New Delhi which has disseminated database of beneficiaries who were provided accommodation entry by the said Sh. Himanshu Verma and its Associates. The name of M/s. Pinnacle Realtors Private Limited figures in the list of beneficiary entities. As per the information, the respondent company is one of the beneficiary companies which has received Rs. 1,00,00,000/- from M/s. Citylife Promoters Pvt. Ltd. one of the group companies of Shri Himashu Verma, during the Financial Year 2010-2011 relevant for the A.Y. 2011-12.

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 23.07.2019. Affidavit of services has been filed by the Appellant.

It is further stated by the Appellant, that the notice under section 148 of the Income Tax Act 1961, dated 27.03.2018 was issued to M/s. Pinnacle Realtors Private Limited and that assessment/reassessment proceedings so initiated were getting barred by limitation on 31.12.2018.

The Appellant has submitted that vide notice dated 27.04.2017 No. ROC-DEL/248/STK-5/721 in Form - 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 (Act).

The appellant has further submitted that, it is not known whether M/s. Pinnacle Realtors 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 as per MCA master data of the company, vide notice dated 30.06.2017 being Public Notice No. ROC-DEL/248(5)/STK-7/2879 in Form STK-7 (Company's name appearing at Sl. No. 14766). The legality of the striking off the name of the company from the register of the companies is sought to be assailed on the ground that the assessment/reassessment proceedings were to result in an addition of Rs. 1,00,00,000/- crores.

The Appellant further submitted that, Assessment Order under section 144/147 of the Income Tax Act, 1961 was passed on 05.12.2018 which has resulted in creation of demand of Rs. 70,36,850/- which is required to be paid within 30 days, failing which consequences will follow in accordance with provisions of Income Tax Act, 1961. As 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 along with demand notice dated 14.02.2019 under section 271(1)(b) for an amount of Rs. 10,000/- and penalty orders dated 14.02.2019 under section 271F for an amount of Rs. 5,000/- were issued. Copy of said orders and notices have been annexed along with the appeal.

The Ld. Counsel for the Income Tax Department submits that, in order to recover the taxes on the undisclosed income of the Respondent Company and to charge and recover the revenue from the transactions from the Respondent Company during the assessment year 2011-12, it necessitates restoration of the Respondent Company in the Register of Companies, to proceed further in accordance with law, since as on date the proceedings cannot continue against the company, because of it being struck off from the register of companies.

The applicant has filed its affidavit of service on 21.02.2019, it has been stated that the copy of appeal was served on Respondent No. 2, 3 and 4 through Speed Post on 27.12.2018 at the registered address as per the MCA portal and the same has been delivered. The Appellant has annexed postal receipts & tracking report along with the appeal.

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 Registrar 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 respondents 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 not 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.