Income Tax Officer, Ward- 15(1) vs Registrar Of Companies And Ors.

This appeal is filed by Income Tax Department through Income Tax Officer, Ward- 15(1), New Delhi, having office at Room No. 225D, C.R. Building, I.P. Estate, New Delhi-110002 (for brevity the 'appellant'), under Section 252(1) r/w Section 252(3) of the Companies Act, 2013 (for brevity 'the Act') read with Rule 7 & 9 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 by Registrar of Companies, the respondent herein.

The respondent no. 2, M/s Lancer Construction Private Limited, having its registered office at 1837/138, Shanti Nagar, Tri Nagar, Delhi, North Delhi-110035, bearing CIN U51432 DL2002 PTC118024, Mr. Subhash Kumar Tiwari and Mr. Uma Shankar are respondents no. 3 and 4 who are directors of the company.

It is submitted that as per the information was received from ADIT, (Investigation), Unit- 3(2) New Delhi, vide communication dated 02.12.2015, inter alia, informing that the respondent no. 2 company had paid share application money of Rs. 17,00,000/- to M/s Prem Cables Pvt. Ltd., with Oriental Bank of Commerce, during the A.Y. 2011-12. As per appellant, the respondent no. 2 company had filed its ITRs on 26.07.2012, revealed that it has declared NIL income (i.e., a loss of Rs. 21,070) and did not disclose fully and truly all material facts necessary for assessment, thus, the Assessing Officer has reason to believe that an income amount of at least Rs. 41,00,000/- had escaped assessment.

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, for income against the credit amount of at least Rs. 41,00,000/-. Denial to restore the name of the respondent-company in the Register of the ROC, will be prejudicial to the interest of the revenue in the long run.

After approval from the Principal Commissioner of Income Tax- 5, notice under Section 148 of the IT Act, dated 29.03.2018 was issued. The said notice was never replied to, by the Directors nor by any other representative of the company.

The Assessment Order was passed dated 11.12.2018 and further Penalty Order was also passed, against respondent no. 2 company for the A.Y. 2011-12.

On perusal of the MCA website, the Appellant has come to know that the name of the respondent 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 vide notice by the ROC.

The appellant submits that in the Month of November 2019, on perusal of the documents filed with the ROC, the "Master Data" of the respondent no. 2 company was reflecting the status of the companies as "Strike Off". The copy of "Master Data" reflecting the status of respondent no. 2 company, as "Strike Off" is filed by the appellant. The copy of Gazette Notification dated 16.01.2017 under Section 560(5) of the Companies Act, 1956, declaring the Company as dissolved, is also annexed with the Appeal. Hence, the request of the Appellant for revival of the name of the company can be considered.

The respondents were served with appeal and service affidavit has been filed. The respondents no. 2 to 4 are served through publication in one English and one vernacular newspaper vide publication dated 01.02.2021. None appears for respondents no. 2 to 4. Hence, respondents no. 2 to 4 are proceeded ex-parte vide order dated 05.03.2021.

The appellant submitted that the Income Tax Department being aggrieved person and also creditor under Section 252(1) and 252(3) of the Companies Act, 2013 by the removal of the name of the Company from the register by the Registrar of the Company as for the reopening of assessment proceedings the Company has to be in existence.

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 Respondent 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 allowed and disposed of.

Let the copy of the order be served to the parties.