Income Tax Officer, Ward 1(3) vs Registrar Of Companies & Others

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 Achates Developers Private

Limited (“the companyâ€​), from the register of companies.

It is stated that the company is a private limited company, incorporated under the erstwhile Companies Act, 1956, on 09.07.2006 having CIN No.

U70109 DL2010 PTC150712 with authorized share capital of Rs. 7,00,000/- and paid up share capital of Rs. 7,00,000/-. The registered office of the

company is stated to be at E-36, 1st Floor, Jawahar Park, Laxmi Nagar, New Delhi - 110092. Therefore, the jurisdiction lies with this Bench of the

Tribunal.

The applicant states that, M/s Achates Developers Private Limited filed its Income Tax Return for A. Y. 2011-12 on 05.10.2011 declaring loss of (-

) Rs. 11,153/-. The return was processed under Section 143(1) of the I. T. Act and the case was not picked up for scrutiny, so there was no scrutiny

assessment under Section 143(3) of the I. T. Act. Reassessment proceedings for F. Y. 2010-11 and A. Y. 2011-12 have been completed under

Section 144/147 of the I. T. Act, as the respondent company does not exist at the given address and statutory notices have not been responded. The

appellant has reason to believe that an estimated amount of at least Rs. 3.01 crores has escaped assessment during the Financial Year 2010-2011

relevant for the A.Y. 2011-12. This receipt is clearly out of taxable income earned by the Assesse Company during the year under consideration.

However, as per the ITD system and records the Assesse has not filed any return of income for the year under consideration till date.

The applicant further states that the Income Tax Return for A. Y. 2011-12 of the respondent company was analysed in the light of the information

provided by Investigation Wing. Gross receipt of Rs. 3,42,000/-, meager cash balance of Rs. 25,574/-as on 31.03.2010 and Rs. 28,871/- as on

31.03.2011 does not substantiate the cash deposit of Rs. 1,13,50,000/- and total credit of Rs. 3.01 crores.

In view of the above facts, an estimated amount of at least Rs. 1,50,500/- (being 0.5% of commission on credits of Rs. 3,01,00,000/-) has escaped

assessment within the meaning of section 147/148 of the IT Act and has not been brought under tax for the A. Y. 2011-12.

It is further stated by the applicant, that notice under section 148 of the Income Tax Act 1961, dated 31.03.2018 for A.Y. 2011-12 was issued to

M/s Achates Developers Private Limited and that assessment / reassessment proceedings so initiated were getting barred by limitation on 31.12.2018.

It is submitted that vide notice dated 27.04.2017 being Public Notice 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 dormant company under section 455 of the Companies Act, 2013.

The applicant has submitted that it is not known whether M/s Achates Developers Private Limited made any representation to the ROC in

pursuance of the STK-5. 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 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. 497). 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 was to result in an addition of Rs. 1,50,500/- (being 0.5% of commission on credits of Rs.

3,01,00,000/-) in the Taxable Income of the company.

The Appellant further submitted that Assessment Order dated 28.11.2018 has been passed under section 147 read with section 144 of the Income

Tax Act, 1961 which has resulted in creation of demand of Rs. 99,578/- which was required to be paid within 30 days, failing which consequences are

to follow in accordance with provisions of Income Tax Act, 1961. As the Respondent Company has 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 dated 14.05.2019 under

section 271(1)(b) for an amount of Rs. 10,000/- and penalty orders dated 20.05.2019 under section 271(1)(c) for an amount of Rs. 49,335/- were

issued. Copy of said orders have been annexed along with the appeal.

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. 10 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. 10 on Page No. 3. Copy of newspapers has been annexed along with the affidavit.

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 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.