Income Tax Officer, Ward 1(3) vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The appeal is filed By Income Tax Officer, Ward 1(3) New Delhi, against the striking off of the name of the M/s Across Marketing Services

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

21.01.2004 with CIN No. U51909 DL2004 PTC124225. The Authorized Share Capital of the company is Rs. 16,00,000/- and Paid up Share Capital is

Rs. 15,25,000/-. The registered office of the company is stated to be at 1716/18, Naya Bazar, New Delhi â€" 110085. Therefore, the jurisdiction lies

with this Bench of the Tribunal.

The Appellant states, that M/s Across Marketing Services Private Limited filed its Income Tax Return for A. Y. 2011-12 on 23.09.2011 declaring

income of Rs. 16,809/-. The return was processed under Section 143(1) of the I. T. Act and the case was not picked up for scrutiny.

The Income Tax Return for A. Y. 2011-12 of the respondent company was analysed in the light of the information provided by Income Tax Officer

(Investigation), Unit-4 vide communication dated 12.03.2018 that the respondent company had voluminous transaction in its account no.

01742090005944 with Kotak Mahindra Bank which showed total credit of Rs. 0.61 crores during the period relevant to A. Y. 2011-12. Total income

of the assessee company as per ITR for A. Y. 2011-12 was Rs. 16,800/- with Sales / Gross receipt of Rs. 0.03 crores resulting in Rs. 0.58 crores of

unassessed income being difference between total credits and Sales / Gross Receipts.

It has been further stated by the Appellant that, the Respondent Company did not disclose fully and truly all material particulars, therefore, the

Assessing Officer had reasons to believe that undisclosed income of Rs. 0.58 crores chargeable to tax has escaped assessment for A.Y. 2011-12,

thereby rendering the company liable for consequences under Income Tax Act, 1961 and entitling the Revenue to initiate proceedings against the

company.

In spite of proper service to the respondent nos. 2 to 5 none appeared. Hence, the case was proceeded ex-parte against the said Respondents vide

order dated 27.08.2019. Affidavit of services has been filed.

It is further stated by the applicant, that the notice under section 148 of the Income Tax Act 1961, dated 30.03.2018 was issued to M/s Across

Marketing Services Private Limited and that assessment / reassessment proceedings so initiated were getting barred by limitation on 31.12.2018.

It is Appellant has 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 appellant has further submitted that, it is not known whether M/s Across Marketing Services 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. 528). 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 nearly Rs. 0.58 crores.

The Appellant further submitted that, Assessment Order under section 144 of the Income Tax Act, 1961 was passed on 03.12.2018 which has

resulted in creation of demand of Rs. 26,69,760/- 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 18.06.2019 under section

271(1)(b) for an amount of Rs. 10,000/- and penalty orders dated 26.06.2019 under section 271(1)(c) for an amount of Rs. 13,90,500/- 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 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 12.07.2019, it has been stated that the copy of appeal was served on Respondent No. 2, 3, 4 and

5 through Speed Post on 22.11.2018 at the registered address as per the MCA portal, however, the same returned un-served. An email dated

14.05.2019 was sent to Respondent no. 2 on the email address mentioned in MCA portal, however, the same has bounced back. The tracking Report

of the consignments and the copy of email is annexed along with the Affidavit. The notices have also been affixed at the registered address of

Respondent No. 2 to 5 on 05.07.2019 by Ms. Shilpa Garg, Inspector in presence of Sh. Gopal Dutt Bhatt, Tax Assistant. Copy of the Inspector Report

is annexed with 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.