Income Tax Officer, Ward 25(3) 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, Travelaffairz Holidays Pvt. Limited. in the Register of Companies maintained by the RoC, Respondent No. 1.

From the perusal of Memo of Appeal, we notice, in the Assessment Order, page 27 (para 6) of Memo of Appeal, it is clearly mentioned that despite

several notices issued upon the Respondents, .no one appeared on their behalf, therefore, that proceeding was fixed for Ex-parte hearing and we

further notice that before filing this Appeal notices were issued upon the Respondents but even then no one appeared on behalf of the Respondents

Company and their Directors under such circumstances, we are not inclined to issue fresh notices upon respondents company and their Directors(R-2

to 5). So far Registrar of Company (R-1) is concerned, since in similar matters, no objection was raised by the ROC, so for this reason, we are not

inclined to issue notice upon ROC too.

Vide Proceedings initiated by the Ministry of Corporate Affairs, through the office of the RoC, names of several companies were struck off for

want of filing Statutory Returns. Name of the Respondent No. 2 Company was also struck off from the Register of Companies vide STK-7 dated

30.06.2017 for want of filing Statutory Returns or financial Statements.

By invoking the provision of section 252 of Appellant (Income Tax Dept.) has prayed for restoration of the name of the Respondent Company in

order to carry out proceedings initiated against them. As per averments, from the data available with the Income Tax Department through NMS

Portal in the ITD System, and from AIR/26A5, it is observed that during the F.Y. 2011-12 relevant to A.Y. 2012-13, the Respondent Company had

made cash deposit of Rs. 1,30,000/- in its bank account. From the Non-Filers Monitoring System (NMS), it is observed that the Respondent Company

had not filed its return of income (ITR) for the A.Y. 2012-13 in spite of having made the cash deposit. Further, the Respondent Company did not file

its Income Tax Return for A.Y. 2012-13. As per the provisions of Section 139 of the IT Act, every company is mandatorily required to file its return

of income and the appellant has reason to believe that undisclosed income of Rs. 1,30,000/- or more has escaped of the IT Act and has not been

brought under tax for the A.Y. 2012-2013.

Ld. Standing Counsel for the IT dept. submits that there are recovery & penalty proceedings pending under Section 148 of Income Tax Act and

action in accordance with law is required to be initiated against the company. She further submitted that Notice dated 30.03.2019 under section 148 of

the IT Act, 1961, were issued to the respondents at its registered address/ email id as well as vide affixation to which there had been no response. She

further submitted that the Appellant has passed the Assessment Order on 04.12.2019 under Section 147 read with Section 144 of the I.T. Act against

the Respondent Company for the A.Y. 2012-13, which resulted in raising of income tax demand of Rs. 3,20,070/- against the Respondent Company.

She further submitted Demand Notice dated 04.12.2019 under Section 156 of the I.T. Act was also issued to the Respondent Company. She further

submitted that Penalty notices dated 04.12.2019 under Section 271(1)(c) and Section 271F of the I.T. Act have already been issued to the Respondent

Company.

She further submitted that the name of the respondent company had been struck off by the ROC, seriously affecting the assessment and recovery

proceedings and the validity of the assessment order and penalty proceedings. She further submitted that for recovering the tax dues and for any

further consequential proceedings against the company under the I.T. Act, it is just and equitable and in public interest that the name of the

Respondent Company be restored to the register of companies as if the name of the company had not been struck off from the register of companies.

She further submitted in view of the grounds raised by the appellant being an aggrieved person, the prayer may be entertained u/s 252(3) of the

Company Act 2013.

Considering the averments made in the Memo of Appeal and submissions of Ld. Standing Counsel, we are of the considered view that since a

recovery & penalty proceeding against the Respondent Company is pending before the Appellant, the appellant is an aggrieved person u/s 252(3) of

the Company Act 2013. Hence, the present Appeal is maintainable and liable to be allowed.

Accordingly, this appeal is hereby allowed. The RoC 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.

However, it is made clear that we are simply directing 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 memo of appeal and in no way endorse or have -adjudicated about their entitlement to recover,

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 appellant. Compliance be made by the RoC within 30 days