Income Tax Officer vs Registrar Of Companies And Ors.

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

2013 (for brevity ‘the Act’) against the order of striking off the name of the company passed by the respondent under section 248 (1) of the

Act read with Rule 7 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 published on 30.06.2017 vide

notification no. ROC-DEL/248(5)/STK-7/2879 by Registrar of Companies, the respondent herein.

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 26.07.2010 having CIN U93000DL2010PTC206268.

The company is having registered office at C-245, 3 Floor, Hari Nagar Near Clock Tower, New Delhi-110064.

Authorized share capital of the Company is Rs.1,00,000/-divided into 10,000 equity shares of Rs.10/- each and issued, subscribed and paid up share

capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements since

incorporation, the name of the company was struck off in terms of provision of 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 effected on the respondents. Other than the Registrar of companies and Respondent no. 3, none

appeared on behalf of the other respondents. While Respondent No. 2 & 4 were proceeded ex-parte, Respondent No.1, Registrar of companies

submits that they have no objections to the prayer of the applicant being granted by this bench. Responded No. 3 has filed reply and contested this

appeal submitting that the notice under section 148 of the Income Tax Act was not received by the respondent, however the Income Tax Department

has submitted that the notice under section 148 was issued to the responded on 28.03.2018, which is annexed with the application.

The Appellant prays for the restoration of Respondent No. 1 company in order to take forward proceedings initiated against the company. As per

averments, on the basis of the Non-Management System information received by the Income Tax department, the respondent company had had

received payments amounting to Rs. 63,06,974/- during the Financial Year 2010-11 relevant to AY 2011-12 for which TDS under section 194C

(Payments to contractors) and 194J (Fees for professional or technical services) of the Income Tax Act, 1961 has been deducted. On further

examination of records for the year, it was found that the respondent company has not disclosed the above receipts for Rs. 63,06,974/- and not

brought these transactions to tax as the company has not filed its return of income for the AY 2011-12.

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 barred by time on 31.12.2018. Notice dated

28.03.2018 under section 148 of the Income Tax Act, 1961 was issued to the respondent at its registered address and email id as well as through

affixation, to which there is no response, from any of the Respondent No. 2 to 4 being the company and its ex-directors.

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

No. 2 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.

The income tax department is an aggrieved party within the meaning of section 252(1) read with 252(3) of the Companies Act, 2013 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.