Income Tax Officer, Ward 17(2) vs Registrar Of Companies And Ors.

This appeal has been filed by Income Tax Authority invoking the provisions of Section 252 of the Companies Act, 2013 for restoration of the name

of the Respondent No.2 Company, viz M/s Mishra Dyes and Pharma Chem Private Limited in the Register of Companies maintained by the Registrar

of Companies (""RoC""),Respondent no.l.

Service of notice was duly effected on the Respondents. Other than the RoC, none appeared on behalf of the other Respondents to oppose the

prayer made by the Appellant. The ROC submitted that they have no objections to the prayer of the Appellant being granted by this Tribunal.

Vide proceedings initiated by the Ministry of Corporate Affairs, through the office of the RoC several names of companies were struck off for

want of statutory filings. Respondent no.2 Company, which had also not filed any returns or financial statements, was duly struck off from the register

of companies.

Invoking the provision of Section 252 of the Act, the Income-Tax Dept. prays for its restoration in order to carry out proceedings initiated against

Respondent no.2. As per averments, M/s Mishra Dyes and Pharma Chem Pvt. Ltd. is incorporated on 07.09.2010 under the Companies Act, 2013.

That at the time of strike off the registered office of the Assessee was at Prop. No. 14-A-33, Basement West Extension Area, Near Z King Building,

New Delhi-110005.

The Assessee Company has not filed return of income for the assessment year 2017-18. The Assessee is a Company and is mandatorily required

to file its return of income under Section 139(1) of the Income Tax Act, 1961.

It is submitted by the Income Tax Department that as per the information available on website of MCA, Respondent Company was incorporated on

07.09.2010 under Companies Act, 1956 with Registrar of Companies, Delhi. The registered address of the respondent company, as per company

master data is shown at Prop. No. 14-A-33, Basement, West Extension Area, Karol Bagh, Near Z, King Building, Delhi-110005. The authorized and

paid up share capital is Rs. 66,00,000/- and Rs. 62,60,000/- respectively. The Respondent Company had filed its last balance sheet for the year ended

up to 31st March, 2015.

Further the Income Tax Department has submitted that the Income Tax Return (ITR) of the Respondent Company has been selected for scrutiny

assessment under Computer Aided Scrutiny Selection (CASS) process. Therefore a notice dated 09.08.2018 under Section 143 (2) of the Income tax

Act was issued to the Respondent Company calling the Respondent Company to prepare a true and correct return of its income in respect of A.Y.

2017-18. The said proceeding is pending.

As per the Income Tax Act, 1961, every company has to mandatorily file its return of income within the prescribed time as stipulated u/s 139 of the

Act. However, the assessee has not filed its return of income for the Assessment Year 2017-18.

Further the Income Tax Department has submitted that as the assessee has not filed return of income for AY 2017-18, no assessment could be

made so as to arrive at correct taxable income of the assessee. Since no assessment has been made under scrutiny u/s 143(3), the Ld. Assessing

Officer had no occasion to scrutinize the transactions entered into by the assessee during the year.

A notice u/s 148 of the IT Act, dated 09.08.2018, was issued to the assessee after taking due approval of the relevant authorities. However, the

said notice has remained unserved/ uncomplied with.

The Income Tax Department has submitted that during the course of enquiry about the Assessee the Ld. Assessing Officer learned that the

Assessee has been struck off from the register of the Ld. ROC and therefore is no more an existing entity. That the company by getting its name

struck off from the register of the Ld. ROC, in the guise of a dead company, is trying to escape assessment proceeding and liability which may accrue

from such proceedings. It is submitted by the I.T. Department that the assessment proceedings against a dead company may not hold good in the eyes

of law. Therefore, for any assessment proceedings to commence and continue, the name of the Assessee has to be restored in the register of the Ld.

ROC.

That the procedure laid down under Section 252 of the Companies Act, 2013 and 560 of the Companies Act, 1956 for getting the name of the

company removed from the register of the Ld. ROC does not in any stretch of imagination can be allowed to be invoked resulting in escapement of

tax liability or any other statutory liability on the company which seeks to get its name removed from the register of the Ld. ROC. It is submitted that

the Ministry of Corporate Affairs, Government of India has introduced schemes to facilitate and enforce these Sections namely Fast Track Exit Mode,

2011 and Easy Exit Scheme, 2011 which specifically disallowed the benefit of Section 550 of the Companies Act to the companies which have

liabilities towards Income Tax Department or any other department of the Central Government or State Government.

It is submitted that to undertake the assessment proceedings of F.Y. 2017-18 the name of the Assessee has to be restored in the register of the

Ld. ROC.

Appellant has also submitted that the said respondent company has been struck off by ROC vide STK-7 dated 08.08.2018.

Despite several efforts and even after publication of notice in the newspaper, the respondents other than ROC remained silent. Finally they were

set ex parte vide order dated 19.02.2020.

In view of the grounds raised by the Appellant which remain unrebutted, their prayer merits consideration. The appeal is therefore allowed. The

RoC is therefore directed to restore the name of Respondent no.2 in its register and also proceed to take such other and further penal action against

the respondents in accordance with the statutory provisions.

We, however, make it clear that this Bench has only directed restoration of the name of the appellant company in the Register of Companies

maintained by the RoC on the basis of averments made in the petition and have in no way endorsed or adjudicated about the Applicant's entitlement to

recover any amount as tax etc. which shall be adjudicated by the Department subject to the laws of limitation governing such recoveries. Charges

involved in seeking restoration of the company's name with the office of the ROC shall be borne by the applicant. Petition is disposed of in terms of

the above. Compliance be made with the ROC within 30 days.