Income Tax Officer, Ward 14(2) vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The appeal is filed by Income Tax Officer, Ward 14(2) New Delhi, against the striking off of the name of the M/s Kavya Tradecom 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

19.11.2009 having CIN No. U74120 DL2009 PTC196157 with Authorized Share Capital Rs. 10,00,000/- and paid up Share capital of Rs. 1,00,000/-.

The registered office of the company is stated to be at 22, Vill Sherpur, Shahdara, New Delhi - 110094. Therefore, the jurisdiction lies with this Bench

of the Tribunal.

The Appellant submits that Information was received from Assistant Director of Income Tax (Investigation), Unit 7(3), New Delhi vide

communication dated 21.03.2018 inter-alia informing that investigation was made into the transaction of one M/s Landmark Realcon Pvt. Ltd. which

made total payment of Rs. 3.60 crores to M/s Religare Securities Ltd. Towards purchase of shares. It was further found that M/s Landmark Realcon

Pvt. Ltd. had received Rs. 4,99,78,900/- from the Respondent Company on 14.09.2010.

The appellant states that, the Respondent Company has made payment (loans) of Rs. 10,40,55,000/- and Rs. 16,96,17,800/-to M/s Amadeus Share

and Securities Pvt. Ltd. and M/s Purple Shares and Securities Pvt. Ltd. respectively. In response to the Summons issued to the said Companies and

their Directors, they all got returned with the remarks “no such firm†/ “no such address†respectively, except a reply from one Director Mr.

Mayank Kumar of M/s Purple Shares and Securities Pvt. Ltd. Though the summons was delivered no reply was received from Mr. Nempal Singh,

Director of M/s Amadeus Shares and Securities Pvt. Ltd.

It is further stated by the appellant that Mr. Mayank Kumar, who is found to be a Director of all the three companies viz., M/s Landmark Realcon

Pvt. Ltd., M/s Amadeus Shares and Securities Pvt. Ltd., M/s Purple Shares and Securities Pvt. Ltd. in his response had stated that he is neither a

director nor related to the said companies and that he is a Student. He also revealed that he had filed a complaint with SSP Noida and Bulandshehar

and with Economic Offences Wing, Delhi Police against persons who have misused his name and documents.

The applicant submits, that M/s Kavya Tradecom Private Limited was identified by the Non-Filer Monitoring System (NMS) as the company had

not filed its Income Tax Return for the Assessment Year 2011-12 and not engaged in any genuine business and are just engaged as mere entry

providers / paper companies and just engaged in layering of funds and the Income Tax Department had reason to believe that an estimated amount of

at least Rs. 4,99,78,900/- 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 Assessee Company during the year under consideration. However, as per the ITD system and records the Assessee

has not filed any return of income for the year under consideration till date.

It is further stated by the applicant, that notice under section 148 of the Income Tax Act 1961, dated 29.03.2018 for A.Y. 2011-12 was issued to

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

It has been submitted by the Appellant that, vide notice dated 18.06.2018 being Public Notice no. ROC-DEL/248/STK-5/2018/2912 in Form STK-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 also submitted that, it is not known whether M/s Kavya Tradecom Private Limited made any representation to the ROC in

pursuance of the STK-5. However, 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 08.08.2018 being Public Notice no. ROC-DEL/248(5)/STK-7/4865 in Form STK-7 as per

MCA master data of the company. 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 least Rs. 4,99,78,900/- in the Taxable Income of the

company.

The Appellant further submitted that Assessment Order dated 22.11.2018 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. 4,69,92,319/- 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 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

06.05.2019 under section 271(1)(b) for an amount of Rs. 20,000/- and penalty orders dated 06.05.2019 under section 271(1)(c) for an amount of Rs.

1,54,43,480/-were issued. Copy of said orders have been annexed along with the appeal.

The applicant has filed its affidavit of service on 28.01.2019, wherein it has been stated that the copy of appeal was served on Respondent No. 1,

Registrar of Companies on 20.12.2018. Respondent No. 2, 3 and 4 served through Speed Post but the consignment has returned undelivered. An email

dated 21.01.2019 was sent to Respondent no. 2 on the email address mentioned in MCA website, however, the same has bounced back. The tracking

Report of the consignments and the copy of email is 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.