Income Tax Officer vs Registrar Of Companies And Ors.

This appeal is filed by Income Tax Authority, through its Income Tax Officer, Mr. M.R. Meena, under Section 252(1) of the Companies Act, 2013

(for brevity ‘the Act’) against the order of striking off the name of the company M/s Nascent Infosystems Private Limited (for brevity ‘the

Company’) passed by the respondent under Section 560(5) published on 23.06.2011 by Registrar of Companies, the respondent herein. The

Appellant Company had availed the EET Easy Exit Scheme 2011 and submitted the Form EES 2011 dated 30.04.2011 vide SRVB11279077 and

thereafter ROC vide its notice dated 23.06.2011 pursuant to Section 560(5) struck off the name of Appellant Company and declared that the company

is dissolved. After Companies Act, 2013 came into force, Sections 248-252 of the Companies Act, 2013 are corresponding provisions to Section 560

of the Companies Act, 1956. Hence the appellant has filed the present appeal under Section 252 of the Companies Act, 2013.

The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of

Delhi and Haryana on 03.09.2003 having CIN No. U72900DL2003PTC122066.

The company is having its registered office at 32-C, MIG Flats, Sheikh Sarai, Phase- I, New Delhi- 110017.

Authorized share capital of the Company is Rs.1,00,000/-and issued, subscribed and paid up share capital of the Company is Rs. 1,00,000/-

As per the notice of non- compliance of provisions of the Companies Act, in respect to filing of annual returns and financial statements, the name of

the company was struck off in terms of provision of Section 560(5) of the Companies Act, 1956 which is corresponding to Section 248(1) of the

Companies Act, 2013 read with Rule 7 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules,

2016.

The Appellant has submitted that service was duly affected on the respondents. Other than the Registrar of companies, none appeared on behalf of

the other respondents. While Respondent No. 2 to Respondent No. 4 were proceeded ex-parte, Registrar of companies submits that they have no

objections to the prayer of the applicant being granted by this bench.

The Appellant prays for the restoration of company namely M/s Nascent Infosystems Pvt. Ltd. in order to take forward proceedings initiated

against the company. As per averments, respondent company had received huge contractual payment/credits amounting to Rs. 47,44,224/-during the

A.Y. 2011-12. Further the respondent company had not filed its Income Tax return for A.Y. 2011-12, therefore the source of the cash received

remains unverifiable. The appellant has also annexed the Form EES alongwith the appeal, dated 30.04.2011 filed by the respondent company pursuant

to the Guidelines for Fast Track Exit under the provisions of Section 560 of the erstwhile Companies Act, 1956. On a perusal of the said form, it is

clear that no disclosure has been made therein vis-à -vis the assessee’s business of providing accommodation enteries.

The appellant has further submitted that it appears that there is tax evasion which has escaped assessment within the meaning of Section 147 &

148 of the Income Tax Act and action in accordance with law is required to be initiated against the company. It is submitted that assessment of

income of the Respondent Company for the Assessment Year 2011-12 is pending and shall get time barred on 31.12.2018. Notice dated 23.03.2018

under section 148 of the Income Tax Act, 1961 was issued to the respondent at its registered address and on the email id of the company as well as

through affixation, as per the addresses reflecting in the master data on the MCA website.

The appellant has further submitted that Reasons for issue of notice under section 148 of the Income Tax Act, 1961 were served on the

respondents at its registered address and also Form of recording the reasons for initiating the proceedings under section 148 along with the approval of

the Principal Commissioner of Income Tax dated 21.03.2018 is annexed with the appeal.

The Ld. Counsel for the Income Tax 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 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, for it being struck off.

On perusal of record, it became necessary to call for documents submitted by the company and its directors at the time of availing EES 2011 to

ROC and thus ROC was called upon to produce the said documents with respect to company while allowing EES 2011 and striking off the name of

the company. The following documents were:

i. Form EES 2011

ii. Affidavits of both the Directors

iii. Certified copy of Resolutions passed in Board of Directors meeting

iv. Indemnity of both the directors

v. Statement of account as on 31.03.2017 for current financial year and previous financial year.

It is seen that both the directors have declared on oath in their affidavits that company does not have any dues towards Income Tax/ Sales Taxes/

Central Excise/ Banks and Financial institutions; any other Central/ State govt departments or any other local authorities. Further

The income tax department thus is an aggrieved party within the meaning of section 252(1) as it has to recover taxes payables by respondent

company and great prejudice will be caused to revenue if the name of the respondent company is not restored back. In 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 Appellant

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 the order be served to the parties.