Income Tax Officer, Ward - 23(3) vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The appeal is filed by the Asst. Commissioner of Income Tax, Centre Circle - 23(3), New Delhi, against the striking off of the name of the M/s. Shree Vasudev Energy 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 01.10.2010, having CIN No. U40106DL2010PLC286524 with Authorized capital of Rs. 3,50,00,000/- and paid up capital of Rs. 3,50,00,000/-. The registered office of the company is stated to be at Unit No. 303, Third Floor, KLJ Tower, Netaji Subhash Place, Wazirpur, Pitampura, New Delhi 110034. Therefore, the jurisdiction lies with this Tribunal.

It is submitted that vide notice dated 18.06.2018, being Public Notice No. ROC-DEL/248/STK-5/2018/2912 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. Shree Vasudev Energy 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 08.08.2018 being Public Notice No. ROC-DEL/248(5)/STK-7/4865 in Form STK-7 (Company's name appearing at Sl. No. 19495) 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 was to result in an addition of nearly Rs. 6,45,13,480/- to the taxable income of the Company.

The Appellant states that, Respondent Company filed its return of income for A.Y. 2015-16 on 30.09.2015, declaring a total income of Rs. 1,05,620/-. The case of the Respondent Company was selected under Computer Aided Scrutiny Selection (CASS) and notice under Section 143(2), dated 30.03.2016 was issued and duly served upon the Respondent Company.

In response to the said notice, the Respondent Company intimated vide email dated 16.04.2016, that its address has changed from Hissar, Haryana to New Delhi and requested for transfer of the case records to New Delhi for hearing. Accordingly, the Respondent's case was transferred under the provisions of Section 127 of the I.T. Act, to the present Assessing Officer on 08.11.2017.

The Appellant states that, after following all the due procedures, the Appellant passed the Assessment Order under Section 144 of the I.T. Act, for the A.Y. 2015-16 on 29.12.2017, which resulted in tax demand of Rs. 6,45,13,480/-. A demand notice dated 29.12.2017 under Section 156 of the I.T. Act was also sent to the Respondent Company which remains outstanding, even as on date. It is pertinent to point out that this tax demand is outstanding much prior to the date i.e., 08.08.2018 on which the name of the Respondent Company was struck off by the Registrar of Companies from the Register of Companies.

The Appellant further states that, the Respondent Company filed its return of Income for the A.Y. 2017-18 on 31.03.2018. The case of the Respondent Company was selected under Computer Aided Scrutiny Selection (CASS) and notice under Section 143(2) dated 24.09.2018 has been issued and the assessment proceedings are pending.

In spite of proper service to the respondent nos. 2 to 5 none appeared. Hence, the case was proceeded ex-parte against the said Respondents vide order dated 10.12.2019. The appellant has filed affidavit of service, wherein it states that service through publication was effected on the Respondent company and its directors in pursuance of the order of this Tribunal. Publication was done in English newspaper "Financial Express", Delhi edition dated 12.11.2019 appearing on page No. 23, SI. No. 36. Publication was done in Hindi newspaper "Jansatta", Delhi edition dated 12.11.2019, appearing on Page No. 05, SI. No. 36.

The Ld. Counsel for the Income Tax submits that in order to recover the taxes on the undisclosed income of the respondent company and to charge and recover, the Revenue for the transactions from the respondent company during the assessment year 2015-16 to 2017-18, it necessitates restoration of the Respondent Company in the Register of Companies to proceed further in accordance with law, since as on date the proceedings cannot continue against the company, because of it being struck off from the register of companies.

The 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. 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 respondents, 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.

The appeal is disposed of accordingly.

Let the copy of order be supplied to parties.