Income Tax Officer, Ward 22(4) vs Registrar Of Companies And Ors.

This Appeal has been filed by Income tax Officer, Ward 1(1), 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. Schaefco International Private Limited in the register maintained by the Registrar of Companies, NCT of Delhi & Haryana.

As per the averments, M/s. Schaefco International Pvt Ltd is a private limited company registered with Registrar of Companies, NCT of Delhi & Haryana on 31.12.2009 having its office at F-14, 1st Floor, Kalkaji, New Delhi 110019 having CIN No.U574900DL2009PTC197482 and authorized capital of Rs.20000000 and paid -up share capital of Rs.1,00,000/-.

That Directors of the Respondent No.2- company, being Sean David Hyams and Andre Hyams have been arrayed as Respondent No.3 and Respondent no.4 respectively.

From the information available with the NMS/ ITD Software and 26AS, it is observed that during F.Y. 2011-12 relevant to A.Y. 2012-13, the respondent-company received contractual receipts amounting to Rs.1,97,71,923/- and Brokerage or Commission receipts amounting to Rs.1,39,524/- on which TDS had been deducted U/Sec.194C and 194H respectively of the Income-tax Act. Besides, it is also observed that respondent-company made cash deposits amounting to Rs.3,50,000/- during the F.Y. 2011-12 relevant to A.Y. 2012-13. The respondent -company did not file its Income-tax Return for the A.Y. 2012-13. Appellant wrote letter to respondent- company to furnish reply about non-filing of ITR but no response was received from the respondent-company.

Therefore, Appellant has reason to believe that an income of atleast Rs.20,01,516/-(being the income of Rs.15,81,754/- a presumptive rate of 8% of gross contractual receipt of Rs.1,97,71,923/- plus Rs.69,762/- being 50% of Commission or Brokerage receipt of Rs.1,39,524/- plus cash deposit of Rs.3,50, 000/-) has escaped assessment within the meaning of Sec.147 of Income-tax Act and remained un-taxed during A.Y. 2012-13. Therefore, Notice dated 25.03.2019 U/Sec.148 of Income-tax Act was issued to the respondent-company. Further a notice dated 07.08.2019 u/sec.142(1) of the Income-tax Act was also issued to the respondent-company. The respondent company did not reply to Notice thus prima-facie, there appears tax evasion which requires action in accordance with the Law entitling the Revenue to initiate proceedings against the company. Appellant issued Demand Notice u/sec.156 of the Income-tax Act demanding Rs.30,62,430/- towards Income-tax, interest U/sec.234A and 234B.

Appellant issued Assessment order dated 30.11.2019 u/ sec.147/ 144 and Penalty Order dated 04.11.2019 U/Sec.271(1)(b) and Penalty Notice dated 30.11.2019 u/sec.274 r/w Sec.271(1)( c), penalty Notice u/sec.274 r/w Sec.271F and U/sec.274 r/w 271A of the Income-tax Act, 1961. The proceedings for assessment of income of the respondent for A.Y. 2012-13 are pending against the respondent-company.

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, 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 respondentcompany'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 Notification No.ROC-DEL/248(5)/STK-7/2879 dated 30.06.2017, striking off the name of Company at Sr.No.10213 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.

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 12.01.2021.

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 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 accordingly.

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