Income Tax Officer, Ward 1(2) vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The appeal is filed By Income Tax Officer, Ward 1(2) New Delhi, against the striking off of the name of the M/s Aadhunik Enercon Private

Limited (“the companyâ€​), 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

28.01.2005 having CIN No. U34300 DL2005 PTC132466. The Authorized Share Capital of the company is Rs. 1,25,00,000/- and paid up Share

capital is Rs. 49,51,000/-. The registered office of the company is stated to be at 27B, Samay Vihar, Sector â€" 13, Rohini, New Delhi â€" 110085.

Therefore, the jurisdiction lies with this Bench of the Tribunal.

The applicant submits, that M/s Aadhunik Enercon Private Limited filed its Income Tax Return for the A.Y. 2011-12 on 05.10.2015 declaring loss

of (-) Rs. 12,79,187/- vide e-filing acknowledgement No. 876327141311015. Return was processed under Section 143(1) of the I.T. Act.

Subsequently, the case was selected for scrutiny under CASS and notice under Section 143(2) was issued. Despite service of Notices to the Directors

of the Company, none attended the assessment proceedings for A.Y. 2015-16. Under these circumstances the Assessing Officer was left with no

alternative but to complete the assessment ex-parte within the statutory time limit.

It has further been stated by the appellant that as the respondent company concealed the particulars of its income, therefore, Assessing Officer has

reasons to believe that an amount of Rs. 3,19,52,341/- (Rupees Three Crore Nineteen Lakhs Fifty Two Thousand Three Hundred Forty One)

including penalty chargeable to tax, has escaped assessment for A.Y. 2015-16, thereby rendering the company liable for consequences under Income

Tax Act, 1961.

It is further stated by the applicant, that the notice under section 143(2) of the Income Tax Act 1961, dated 06.04.2016 was issued to M/s Aadhunik

Enercon Private Limited and that assessment / reassessment proceedings so initiated were getting barred by limitation on 31.12.2017. It is submitted

that vide notice dated 27.04.2017 no. ROC-DEL/248/STK-5/721 in Form â€" 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 applicant has submitted that, it is not known whether M/s Aadhunik Enercon 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. 190). 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 likely to result in an addition of nearly Rs.

3,19,52,341/- (Rupees Three Crore Nineteen Lakhs Fifty Two Thousand Three Hundred Forty One) including penalty.

The Appellant further submitted that Assessment Order under section 144 of the Income Tax Act, 1961 was passed on 15.12.2017 which has

resulted in creation of demand of Rs. 1,41,93,320/- 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. A. Y. 2015-16, therefore penalty orders dated 14.06.2018 under section 271(1)(b) for an amount of Rs.

30,000/- and penalty orders dated 14.06.2018 under section 271(1)(c) for an amount of Rs. 1,10,86,691/- were issued. Copy of said notices have been

annexed along 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 assessment year 2015-16, 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, it has been stated that the publication was done in English newspaper “Business Standardâ€, Delhi

edition dated 25.04.2019 and the name of the Respondent Company and its Directors was appearing at Serial No. 27 on Page No. 14. The publication

was also done in Hindi newspaper “Jansattaâ€, Delhi edition 25.04.2019 and the name of the Respondent Company and its Directors was

appearing at Serial No. 27 on Page No. 3. Copy of newspapers has been annexed alongwith the affidavit.

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 Revenue 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.