Income Tax Officer vs Registrar Of Companies And Ors

Sumita Purkayastha, (Member Technical)

This Appeal has been filed by Income tax Officer, Ward 20(2), New Delhi invoking the provisions of Section 252(1) of the Companies Act, 2013

for restoration of the name of the Respondents -Company M/s. R Sons Builders Private Limited in the register maintained by the Registrar of

Companies, NCT of Delhi & Haryana.

As per the averments, M/s. R Sons Builders Pvt Ltd is a private limited company registered with Registrar of Companies, NCT of Delhi &

Haryana on 23.03.1993 having its Regd. office at 33, Basrurkar Market, Moti Bagh, New Delhi 110021, having

CIN No.U74899DL1993PTC052728 and authorized capital of Rs.60,00,000/- and paid -up share capital of Rs.37,67,000/-.

That Directors of the Respondent No.2- company, being Mr. Vinod Kumar Aggarwal, Ms. Rajni Aggarwal and Ms. Gomti Devi have been arrayed

as Respondent No.3, Respondent no.4 & respondent no.5 respectively.

From the information available on non-fliers with the NMS/ ITD Software, it is observed that during F.Y. 2011-12 relevant to A.Y. 2012-13, the

respondent-company received interest and other than interest securities amounting to Rs. 15,92,544/- but did not file its return of income for A.Y.

2012-13. As per provisions of Sec. 139 of Income-tax Act, every company is mandatorily required to file its return of Income before the due date in

prescribed form.

Therefore, income has escaped assessment at least to the extent of Rs. 15,92,544/-. Hence the Assessing Officer proposed the case of the

respondent- company for assessment u/sec. 147 of the Act.

Approval of competent authority for reopening of Assessment of respondent-company was obtained after recording reasons by the Assessing Officer

for which Principal Commissioner of Income-tax, Delhi-7 accorded approval and after obtaining approval a Notice dated 28.03.2019 u/sec. 148 of the

Income-tax Act, 1961 was issued to respondent-company. The re-assessment proceedings are still pending.

Therefore, Appellant has reason to believe that an income of at least Rs. 15,92,544/- has been concealed by the respondent company hence

Assessment Order dated 26.12.2019 U/sec. 144/147 of the Income tax Act, 1961 alongwith penalty notice dated 26.12.2019 u/sec.274 r/w Sec.271(1)

(b) for failing to comply the notice and Notice dated 26.12.2019 U/Sec. 274 read with sec.271(1)(c) for concealing the particulars of income, and

Notice U/Sec.274 r/w Sec. 271F for failing to furnish the Return of Income as required u/sec. 139(1) of the Income -tax Act, 1961 were issued to the

respondent-company.

The income received by the respondent-company is required to be verified and assessed in the hands of the Appellant under the Income-tax Act,

1961 and to undertake assessment proceedings but name of the respondent-company has to be restored in the Register of RoC. Appellant submitted

that assessment proceedings against a dead company cannot be sustainable in the eyes of Law.

To render the Assessment Order valid in the eyes of Law and to enable the Appellant take effective steps for recovery of taxes and for any further

consequential proceedings the respondent company's name be restored to the Register of Companies as if the name of the Company was never struck

off.

The respondent-company is trying to escape the Assessment proceedings and the liability that may arise out of the said proceedings.

On perusal of the MCA website, the appellant came to know that respondent- company's name was struck off by ROC initially by issuing Notice

No.ROC-DEL/248/STK-5/721 dated 27.04.2017 followed by Striking Off Notification No.ROC-DEL/248(5)/STK 7/2879 dated 30.06.2017, striking

off the name of Company at Sr.No.15510 from the Register of Registrar of Companies.

It is submitted by the appellant that the name of the respondent company had been struck off by the ROC without enquiry and the same was not

intimated to the Appellant, Assessing Officer Income-tax or the concerned Commissioner of Income Tax. The same could not be allowed to be

invoked resulting in escapement of tax liability or any other liability on the company which seeks to get its name removed from the register of the Ld.

ROC.

The appellant submitted that the Income Tax department being aggrieved under the Section 252 of the companies Act, 2013 by the removal of the

name of the company from the register by the registrar of the company as for the reopening of assessment proceedings the company has to be in

existence for recovering the learn taxes due and for any further consequential proceedings against the respondent-company.

It is further submitted that since the respondent company has become non-existent entity, the respondent company and its directors are trying to

escape the assessment proceedings and the liability that will arise out of the said proceedings.

The respondent-company failed to appear before the Court to provide its defence. Hence, the Order was reserved on 22.07.2021.

To render assessment order valid in the eyes of Law and to enable the Appellant to take steps for recovery of taxes and for any further

consequential proceedings, the respondent- company's name be restored to the Register of Companies as if the name of the company was never

struck off.

Denial to restore the name of the respondent company in the Register of the ROC will not only condone the wrong doing of the respondent

company but it will also encourage of escapement of tax liabilities by such subterfuge which will be prejudicial to the interest of the revenue in the long

run. The service of notice to respondents has been made through publication in newspaper, but none appeared.

Upon perusal of the documents and submissions made, this appeal is allowed. The Registrar of companies is 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 respondent 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 Appeal No.147/252/ND/2020. name of the company had not been struck off in accordance with Section 248(1) of the Companies Act, 2013.

The appeal is allowed and disposed of accordingly.

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