Income Tax Officer, Ward - 25(2) 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. Ten-Ex Security 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 26.05.1998, having CIN No. U74920DL1998PTC094083 with Authorized capital of Rs. 1,00,000/- and paid up capital of Rs. 400/-. The registered office of the company is stated to be at A-78, Som Bazar Road, Gali No. 4, Madhu Vihar, New Delhi 110059. Therefore, the jurisdiction lies with this Tribunal.

It is submitted that vide notice dated 13.06.2017, being Public Notice No. ROC-DEL/248/STK-5/2018/2336 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 01.09.2017, being Public Notice No. ROC-DEL/248(5)/STK-7/5071 in Form STK-7 (Company's name appearing at Sl. No. 22453), 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. 9,16,838/- to the taxable income of the Company.

The Appellant states that, the case of the Respondent company, was identified from the information available with the IT Department through NMS/ITD Software, information from AIR/CIB statements and Individual Transaction Statements (ITS) and Form 26AS, it is observed that during the Financial Year 2009-10, relevant to A.Y. 2010-11, the Respondent company has received contractual receipts amounting to Rs. 9,16,838/- from different parties on which TDS had been deducted under Section 194C of the Income Tax Act. The respondent company did not file its Income Tax Return for A.Y. 2010-11, in spite of having received the aforesaid income.

The Appellant states that, as the Respondent 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. 9,16,838/- 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. 2010-11. Therefore, Appellant has issued notice dated 30.03.2017 under Section 148 of the IT Act for the A.Y. 2010-11 for initiating assessment proceedings in the company's case to assess the income not disclosed by the company.

The Appellant states that, after following all the due procedures, the Appellant passed the Assessment Order under Section 144 read with Section 147 of the I.T. Act, for the A.Y. 2010-11 on 27.11.2017, which resulted in tax demand of Rs. 63,699/-. A demand notice dated 27.11.2017 under Section 156 of the I.T. Act was also issued to the Respondent Company.

The Appellant further states that, the Respondent Company failed to comply with various provisions of the Income Tax Act, separate notices dated 27.11.2017 were issued to it under Section 271(1)(c) and Section 271F of the I.T. Act. After following due process, penalty order was passed by the Appellant on 31.05.2018 imposing a penalty of Rs. 22,670/-and Rs. 5,000/- under Section 271(1)(c) and Section 271F respectively. Demand Notices dated 31.05.2018 under Section 156 of the I.T. Act were also issued to the Respondent Company.

The Appellant states that, the case of the Respondent company, was identified from the information available with the IT Department through NMS/ITD Software, information from AIR/CIB statements and Individual Transaction Statements (ITS) and Form 26AS, it is observed that during the Financial Year 2010-11, relevant to A.Y. 2011-12, the Respondent company has received contractual receipts amounting to Rs. 17,52,567/- from different parties on which TDS had been deducted under Section 194C of the Income Tax Act. The respondent company did not file its Income Tax Return for A.Y. 2011-12, in spite of having received the aforesaid income.

The Appellant states that, as the Respondent 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. 17,52,567/- 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. 2011-12. Therefore, Appellant has issued notice dated 28.03.2018 under Section 148 of the IT Act for the A.Y. 2011-12 for initiating assessment proceedings in the company's case to assess the income not disclosed by the company.

The Appellant states that, after following all the due procedures, the Appellant passed the Assessment Order under Section 144 read with Section 147 of the I.T. Act, for the A.Y. 2011-12 on 14.12.2018, which resulted in tax demand of Rs. 1,23,498/-. A demand notice dated 14.12.2018 under Section 156 of the I.T. Act was also issued to the Respondent Company.

The Appellant further states that, the Respondent Company failed to comply with various provisions of the Income Tax Act, separate notices dated 14.12.2018 were issued to it under Section 271(1)(b), 271(1)(c) and Section 271F of the I.T. Act. After following due process, penalty order was passed by the Appellant on 18.06.2019, 28.06.2019 and 18.06.2019 imposing a penalty of Rs. 10,000/-, Rs. 43,323/-and Rs. 5,000/- under Section 271(1)(b), 271(1)(c) and Section 271F respectively. Demand Notices dated 18.06.2019, 28.06.2019 and 18.06.2019 under Section 156 of the I.T. Act were also issued to the Respondent Company.

The Appellant states that, the case of the Respondent company, was identified from the information available with the IT Department through NMS/ITD Software, information from AIR/CIB statements and Individual Transaction Statements (ITS) and Form 26AS, it is observed that during the Financial Year 2011-12, relevant to A.Y. 2012-13, the Respondent company has received Fees for Professional or Technical Services amounting to Rs. 26,59,064/- from different parties. on which TDS had been deducted under Section 194C of the Income Tax Act. The respondent company did not file its Income Tax Return for A.Y. 2012-13, in spite of having received the aforesaid income.

The Appellant states that, as the Respondent did not disclose fully and truly all material facts and necessary for assessment, the Appellant has reason to believe that an estimated amount of at least Rs. 26,59,064/- 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. Therefore, Appellant has issued notice dated 29.03.2019 under Section 148 of the IT Act for the A.Y. 2012-13 for initiating assessment proceedings in the company's case to assess the income not disclosed by the company. The said assessment proceedings were getting time barred on 31.12.2019.

In spite of proper service to the respondent nos. 2 to 4 none appeared. Hence, the case was proceeded ex-parte against the said Respondents vide order dated 24.02.2020. 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 30.01.2020 appearing on page No. 21, SI. No. 11. Publication was done in Hindi newspaper "Jansatta", Delhi edition dated 30.01.2020, appearing on Page No. 05, SI. No. 11.

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 2010-11 to 2012-13, 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.