Income Tax Officer, Ward 2(4) 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 Anuvijay Mercantiles Pvt. Ltd. in the Register of Companies maintained by the Registrar of Companies

(""RoC""), Respondent no. 1.

Service 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 therefore they were set ex-parte. 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 2. As per averments of the appellant; respondent company was incorporated on 03.02.2011 under Companies Act, 1956 with Registrar of

Companies, Delhi. The registered address of the Respondent Company, as per Company Master Data is shown as 209, Second Floor, Sunder Kiran

Building, 6/41, W.E.A. Karol Bagh, New Delhi- 110005. The Authorized and Paid-up share capital is Rs.51,10,000/- and Rs.51,01,000/- respectively.

The respondent company had filed its annual return and financial statements with ROC upto the year ended 31.03.2014.

The Appellant submitted that the respondent company has not filed its Income Tax Return (ITR) for the A.Y. 2012-13 As per the provisions of

Section 139 of the I.T. Act, every Company is mandatorily required to file its return of income within the prescribed time in the prescribed manner.

As per the appeal, information was received subsequently from the Income Tax Officer (Inv.) Unit-I, Delhi inter-alia informing that there were

huge number of high value transaction routed within the bank accounts of the Respondent Company and various other companies. Further the cheques

were issued from the bank account of M/s Shalini Holdings Pvt. Ltd. (now Alstone Textile (India) Ltd.) to open the individual savings accounts in turn

to open other current accounts of the Respondent Company and various other Companies and that the individuals were common partner/ directors in

these companies. It was noticed by the appellant that during the financial year 2011-12 relevant to A.Y. 2012-13, approximately Rs.71.85 crore were

credited from various entities and approximately Rs.70.28 crores from the Respondent Company. Further transactions of Rs.33.37 crores and Rs.4.28

crores with M/s VA Realcon Pvt. Ltd., and M/s Mallard Securities Pvt. Ltd., remained unexplained by the Respondent Company.

According to the appellant, respondent did not file its ITR and did not disclose fully and truly all material facts necessary for assessment, the

appellant has reason to believe that an estimated amount of at least Rs.107.93 crores has escaped assessment within the meaning of Section 147/148

of the IT Act and has not been brought under tax for the 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.

As per the appellant, approval of the competent authority for re-opening of the assessment of the respondent company was obtained after recording

reasons for re-opening. The appellant has issued notice dated 30.03.2019 under Section 148 of the IT Act for the A.Y. 2012-13 to the respondent

company but there was no response from the respondent no.2. The case of the respondent company has been reopened under Section 147 of the I.T.

Act for framing the assessment order, for recovering the taxes due and for any further consequential proceedings against the company under the I.T.

Act.

That in view of the foregoing, the proceedings for assessment of income of the respondent company for A.Y. 2012-13 are pending and getting time

barred by limitation on 31.12.2019 as per the provisions of section 153(2) of the Income Tax Act, 1961.

From the MCA Website, Revenue has come to know that the said respondent company has been ""struck off' by ROC, vide Form STK-7 dated

09.08.2018.

The appellant submits that as per the provisions of Section 250 of Companies Act, 2013, despite ""Strike Off of the respondent company under

section 248 of the Companies Act, 2013, the company does not stand dissolved for the purpose of discharge of obligations of the company including

obligation to file return and get assessment. It is therefore; necessary for framing the assessment order, for recovering the taxes due and for any

further consequential proceedings that the Respondent 2's name be restored to the register maintained by the ROC.

In view of the grounds raised by the Appellant which remain un-rebutted, their prayer merits consideration. The appeal is therefore allowed. The

RoC is therefore directed to restore the name of Respondent no. 2 Company 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.