Income Tax Officer, Ward 20(2) vs Registrar Of Companies

Sumita Purkayastha, (Member Technical)

 This Appeal has been filed by Income tax Officer, Ward 20(2), New Delhi invoking the provisions of Section 252(1) of the Companies Act, 2013

for restoration of the name of the Respondents -Company M/s. Progress-U India Private Limited in the register maintained by the Registrar of

Companies, NCT of Delhi & Haryana.

 As per the averments, M/s. Progress-U India Pvt Ltd is a private limited company registered with Registrar of Companies, NCT of Delhi &

Haryana on 23.08.2010 having its office at 213, South Ex. -Plaza-I, 389, Masjid Moth, South Extension, Part-II, New Delhi-110049, having CIN

No.U74999DL2010PTC207422 and authorized capital of Rs.5,00,000/- and paid -up share capital of Rs. 1,00,000/-.

 That Directors of the Respondent No.2- company, being Mr. Balaji Rao Rotti and Ms. Asha Sridhar have been arrayed as Respondent No.3 and

Respondent no.4 respectively.

 From the information available on non-fliers with the NMS/ ITD Software, it is observed that during F.Y. 2011-12 relevant to A.Y. 2012-13, the

respondent-company received professional /technical services amounting to Rs. 10,78,072/- but did not file its return of income for A.Y. 2012-13. As

per provisions of Sec. 139 of Income-tax Act, every company is mandatorily required to file its return of Income before the due date in prescribed

form. A dated 25.02.2019 was issued to the respondent-company but respondent-company did not file any response thereto. In view of this, the

Assessing Officer has reason to believe that an income of at least Rs. 10,78,072/- has escaped assessment within the meaning of Sect. 147/148 of the

Income-tax Act.

Approval of competent authority for reopening of Assessment of respondent-company was obtained after recording reasons by the Assessing Officer

for which Principal Commissioner of Income-tax, Delhi-7 accorded approval and after obtaining approval a Notice dated 29.03.2019 u/sec. 148 of the

Income-tax Act, 1961 was issued to respondent-company. The re-assessment proceedings are still pending.

 Therefore, Appellant has reason to believe that an income of at least Rs. 10,78,072/- has been concealed by the respondent- company.

Therefore, Assessment order dated 25.11.2019 U/sec. 144/147 of the Income tax Act, 1961 alongwith penalty notice dated 25.11.2019 u/sec.274 r/w

Sec.271(l)(C), and Notice dated 25.11.2019 U/Sec. 274 read with sec.27IF for failing to furnish the Return of Income as required u/sec. 139(1) of the

Income -tax Act, 1961 and Notice dated 25.11.2019 U/Sec.274 r/w Sec.271(l)(b) of the Income Tax Act, 1961 was issued to respondent-company to

show cause as to why an order imposing penalty should not be made U/Sec.271(l)(b).

 The income received by the respondent-company is required to be verified and assessed in the hands of the Appellant under the Income-tax Act,

1961 and to undertake assessment proceedings but name of the respondent-company has to be restored in the Register

of RoC. Appellant submitted that assessment proceedings against a dead company cannot be sustainable in the eyes of Law.

 To render the Assessment Order valid in the eyes of Law and to enable the Appellant take effective steps for recovery of taxes and for any

further consequential proceedings the respondent- company’s name be restored to the Register of Companies as if the name of the Company was

never struck off.

 The respondent-company is trying to escape the Assessment proceedings and the liability that may arise out of the said proceedings.

 On perusal of the MCA website, the appellant came to know that respondent- company’s name was struck off by ROC initially by issuing

Notice No.ROC-DEL/248/STK-5/721 dated 27.04.2017 followed by Striking Off Notification No.ROC-DEL/248(5)/STK- 7/2879 dated 30.06.2017,

striking off the name of Company at Sr.No.15218 from the Register of Registrar of Companies.

 It is submitted by the appellant that the name of the respondent company had been struck off by the ROC without enquiry and the same was

not intimated to the Appellant, Assessing Officer Income-tax or the concerned Commissioner of Income Tax. The same could not be allowed to be

invoked resulting in escapement of tax liability or any other liability on the company which seeks to get its name removed from the register of the Ld.

ROC.

 The appellant submitted that the Income Tax department being aggrieved under the Section 252 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 for recovering the taxes due and for any further consequential proceedings against the respondent-company.

 It is further submitted that since the respondent company has become non-existent entity, the respondent company and its directors are trying to

escape the assessment proceedings and the liability that will arise out of the said proceedings.

The respondent-company failed to appear before the Court to provide its defence. Hence, the Order was reserved on 09.07.2021.

 To render assessment order valid in the eyes of Law and to enable the Appellant to take steps for recovery of taxes and for any further

consequential proceedings, the respondent- company’s name be restored to the Register of Companies as if the name of the company was never

struck off.

 Denial to restore the name of the respondent company in the Register of the ROC will not only condone the wrong doing of the respondent

company but it will also encourage of escapement of tax liabilities by such subterfuge which will be prejudicial to the interest of the revenue in the long

run. The service of notice to respondents has been made through publication in newspaper, but none appeared.

 Upon perusal of the documents and submissions made, this appeal is allowed. The Registrar of companies is 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 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 accordingly.

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