Income Tax Officer Ward 24(1) vs Registrar Of Companies And Ors

Dr. V.K. Subburaj, Member (T)

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. Smile Infotel Private Limited, 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. 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 the information received from ITD Systems that the assessee deposited Rs. 2,00,000/- in the bank account maintained by him during the F.Y. 2011-12. However, no return of income has been filed by the assessee.

That after considering the information it is seen that assessee is maintaining bank account during the period 1.04.2011 to 31.03.2012 and after analysis of the bank statement showing cumulative debit and credit entries of Dr. 2,61,67,235/- and Cr. 2,61,73,141/-. Further there is cash deposit of Rs. 1,57,17,450.

That after considering the information it is seen that the assessee has filed its return of income for AY 2012-13. But did not declare the financial transactions in the tax return. So for reopening of assessment because of the abovementioned reasons were recorded by the Assessing Officer for which Principal Commissioner Income Tax-8 had accorded his approval on 29.03.2019 for issue of notice u/s. 148 of the Income Tax Act.

That the Assessing Officer therefore proposed the case of the Assessee for reopening u/s. 147/148 of the I.T. Act upon which Principal Commissioner Income Tax-8, New Delhi accorded his approval for issue of notice u/s. 148 of the I.T. Act.

That the Pr. Commissioner of Income Tax Delhi - 8 after noting the observations of the Ld. Assessing Officer gave its approval for reopening the case of the Assessee as there is escapement of income from assessment. Pursuant to the said approval the Assessing Officer issued notice under Section 148 of the IT Act for re-opening of assessment proceedings in the case of the Assessee. That neither the director nor any other representative of the company replied to the said notices.

On further enquiry it was found that the Assessee is not in existence and its name has been struck off by the Ld. ROC from the Register of Companies. It is again reiterated that the neither the Assessing Officer nor the concerned Commissioner of Income Tax were informed about the status of the Assessee Company.

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 concerned Commissioner of Income Tax in the case of the Assessee was informed or made privy to the proceedings or the application for getting the name removed from the register of the Ld. ROC.

That the procedure laid down under Section 252 of the Companies Act 2013 for getting the name of the company removed from the register of the Ld. ROC cannot by any stretch of imagination 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 the register of the Ld. ROC.

That the income against the deposits/credit of aforesaid amount of Rs. 1,00,000/- 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, the name of the Assessee has to be restored in the register of the Ld. RoC.

That the cause of action arose when the Assessing Officer learned that the name of the Assessee Company stood struck off. The cause of action again arose when the Assessing Officer sent the notice dated 29.03.2019 under Section 148 of the IT Act.

For framing the assessment order and for recovering the taxes due, it is necessary 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 2 in its register and also proceed to take such other and further penal action against the respondents in accordance with the statutory provisions.