Income Tax Officer, Ward 22(1) 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 S.D. Buildcon Pvt. Ltd. in the Register of Companies maintained by the Registrar of Companies

(“RoCâ€​), Respondent no. 1.

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 S.D. Buildcon Pvt. Ltd. is incorporated on 17.06.2005 under the Companies Act, 2013. That at the time of

strike off, the registered office of the Assessee was at at 106, 1st Floor, Chabra Complex,8 Veer Saverkar Block Shakar Pur, Delhi, 110092.

The Assessee Company has not filed return of income for the assessment year 2012-13. 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 I.T. Department that the information was received from Dy. Director of Income Tax (Inv.)-III Gurgaon vide communication

dated 24.03.2019, inter-alia informing that during the search operation carried out on M/s. Skylark Group, it has transpired that the said company is

involved in providing accommodation entries to various companies. It was also informed that during the financial year 2011-12 relevant to the A.Y.

2012-13, the Respondent Company namely M/s. S.D. Buildcon Pvt. Ltd, is the beneficiary of such accommodation entries to the tune of Rs.

70,00,000/- from two entities namely M/s. G.T. Comex Pvt. Ltd. and M/s. S.S.J. Foods Ltd.

Further the Income Tax Department has submitted that the Respondent did not file its ITR for A.Y. 2012-13 despite having received the above

income, the appellant had reasons to believe that at least on income of Rs. 85,51,020/-(being 8% of the total contractual receipts of Rs. 1,93,87,756/-

plus the income of Rs. 70,00,000/- through accommodation entries) has escaped assessment within the meaning of Section 147 of the I.T. Act and has

not been brought under tax for the A.Y. 2012-13. Therefore, notice dated 26.03.2019 under Section 148 of the I.T. Act for AY 2012-13 was issued to

the Respondent Company.

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 2012-13.

Further the I.T. Department has submitted that as the assessee has not filed return of income for AY 2012-13, 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.

That for the aforesaid facts the Ld. Assessing Officer had reason to believe that income of Rs.85,51,020/- has escaped assessment for AY 2012-

13 in the case of the assessee within the meaning of Section 147 of the Act.

A notice u/s 148 of the IT Act, dated 10.10.2019, was issued to the assessee after taking due approval of the relevant authorities. However, the

said notice has remained unserved/ uncomplied with.

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 humbly submitted 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 name of the Assessee has been struck off by the Ld. ROC without any proper enquiry. It is also submitted that neither the Assessing

Officer nor the superiors in the case of the Assessee were informed or made privy to the proceedings for removal of the name of the Assessee

Company from 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.

That the aforesaid amount of Rs.85,51,020/- is required to be assessed in the hands of the above Assessee Company under the IT Act. It is

submitted that to undertake the assessment proceedings of the F.Y. 2012-13 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 salient. Finally they were

set ex parte vide order dated 04.01.2021.

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.