Income Tax Officer Ward 22(2) vs Registrar Of Companies And Ors

Abni Ranjan Kumar Sinha, J

The appeal is filed by the Income Tax Officer, Ward-22(2), New Delhi, against the striking off of the name of the M/s. Sainik Corporate Services Private Limited ("the company"), from the register of companies.

It is stated that, the company is a private limited company incorporated under the erstwhile Companies Act, 1956, on 31.03.2009 having CIN No. U74140 DL2009 PTC189023 with Authorized capital Rs. 1,00,000/- and paid up capital of Rs. 1,00,000/-. The registered office of the company is stated to be at 707-C, Jaina Tower II, District Center, Janakpuri, New Delhi - 110058 - IN. Therefore, the jurisdiction lies with this Tribunal.

The appellant states that Information has been received from Investigation Wing Unit-1, New Delhi informing about suspicious nature of banking transactions by Shri Sajjan Kumar who is director of respondent company and many other companies with tainted financial transactions. It was mentioned that based on "Alert" reported by the bank in the case of M/s. Zamindar Timber having bank account no. 101905000257 with ICICI, Mumbai Bangur Nagar Branch there were total deposits between 28.06.2010 to 01.06.2011 amounting to Rs. 3,45,94,056/- out of which Rs. 64,93,030/-is in cash, Rs. 64,51,481/- is by transfer and total withdrawals in the same period is around Rs. 3,46,27,645/-out of which Rs. 56,41,456/- is by ATM, Rs. 1,02,90,529/- is by transfer. Transaction pattern shows that account gets credited by cash deposits, transfers, clearing and gets debited through ATMs, transfers, clearing and pay-orders. It seems that customer is rotating the funds between related accounts. One of the related accounts belongs to the respondent company.

The Appellant submits, that the case of M/s. Sainik Corporate Services 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 2012-13 and did not disclose fully and truly all material particulars, therefore, the Assessing Officer had reasons to believe that substantial income has not been brought under tax and income of the respondent company has escaped assessment for A.Y. 2012-13, thereby rendering the company liable for consequences under Income Tax Act, 1961 and entitling the Revenue to initiate proceedings against the company.

It is submitted by the Appellant, that the notice under section 148 of the Income Tax Act 1961, dated 27.03.2019 for A.Y. 2012-13, was issued to M/s. Sainik Corporate Services Private Limited and that assessment/reassessment proceedings so initiated were getting barred by limitation on 31.12.2018.

It is submitted that vide notice dated 27.04.2017 being Public Notice no. ROC-DEL/248/STK-5/721 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 a dormant company under section 455 of the Companies Act, 2013.

The Appellant has stated that, it is not known whether M/s. Sainik Corporate Services Private Limited made any representation to the ROC in pursuance of the STK-5 but. 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 30.06.2017 being Public Notice no. ROC-DEL/248(5)/STK-7/2879 in Form STK-7 (Company's name appearing at Sl. No. 17124) 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 has been assailed by the Appellant on the ground that the assessment/reassessment to the income of the company.

The Appellant further states that, Assessment Order dated 31.10.2019 has since been passed under section 147/144 of the Income Tax Act, 1961, which has resulted in creation of demand of Rs. 61,27,480/- which was required to be paid within 30 days, failing which consequences were to follow in accordance with provisions of Income Tax Act, 1961. Copy of the assessment order alongwith Demand Notice has been annexed with the appeal. 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. 2012-13, therefore penalty notice dated 31.10.2019 under section 271(1)(b) and penalty notice alongwith demand notice dated 31.10.2019 under Section 271(1)(c). Penalty notice under section 271F. Copy of penalty notice has been annexed with the appeal.

Heard the learned counsel appears for the appellant who in course of his arguments submitted that the Appellant has filed its affidavit of service on 31.10.2019, where it has been stated that the publication was done in English newspaper "Financial Express", Delhi edition dated 23.10.2019 and the name of the Respondent Company and its Directors was appearing at Serial No. 7 on Page No. 24. The publication was also done in Hindi newspaper "Amar Ujala", Delhi edition 23.10.2019 and the name of the Respondent Company and its Directors was appearing at Serial No. 7 on Page No. 9. Copy of newspapers has been annexed along with the affidavit but none appear on behalf of the respondent-company. Learned AROC submitted that ROC has no objection, if the application is allowed.

Considering the averments made in the memo of appeal and submissions made by the parties, this Tribunal find the Income Tax Department is an aggrieved person. 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 the Appellant if the name of the respondent company is not restored back.

Vide notice dated 30.06.2017 being Public Notice no. ROC-DEL/248(5)/STK-7/2879 in Form STK-7 by which the name of the company was struck off is hereby set aside. 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 Respondent Company 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 never been struck off in accordance with Section 248(1) of the Companies Act, 2013.

This Tribunal however make it clear that this Tribunal is simply directed to restore the name of company in the register but I have not expressed my opinion regarding the entitlement to recovery of the due by the Income Tax Department, the same shall be adjudicated by the Income Tax Department, subject to law of the limitation and other laws, Governing such recoveries. Compliance be made within 30 days.

Let the copy of order be supplied to parties.