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Judgment
Atul Chaturvedi, Member (Technical)
1209/252/ND/2018 is an Appeal filed by INCOME TAX OFFICER, WARD 27(3), NEW DELHI, the Appellant on 05.12.2018, before this Tribunal under Section 252 of the Companies Act, 2013, for seeking the following relief:
a) “Order for restoration of the name of the Respondent No. 2 Company to the register of companies as if the name of the company had not been struck off from the register of companies;
b) Pass such other order(s) as this Hon’ble Tribunal deems fit and proper in the facts of the instant case, in order to grant necessary relief to the Appellant.”
Facts of the Case:
a) The Respondent No. 2 Company namely M/s. Woodpecker Designs Private Limited was incorporated on 25.09.1996, as a Company Limited by Shares (Non-govt. Company) having CIN: U74999DL1996PTC082216, under the erstwhile Companies Act, 1956 with the Registrar of Companies, NCT of Delhi and Haryana. The Authorised Share Capital of the Respondent No. 2 Company was Rs.10,00,000/- (Rupees Ten Lakh Only) and the Paid-up Share Capital of the Respondent No. 2 Company was Rs.1,00,000/- (Rupees One Lakh Only). The Registered Office Address of the Respondent No. 2 Company was D-186, Block D, Defence Colony, New Delhi-110049. Therefore, this Bench has jurisdiction to deal with this Appeal. A copy of the Company Details/Master Data of the Respondent Company is filed along with the Appeal.
b) The Directors of the Respondent No. 2 Company were Mr. Rajan Puri (DIN:00499750), Mr. Santosh Thapar (DIN: 06852634) and Mr. Vijendra Lal Thapar (DIN:06852643) have been arrayed as Respondent No. 3, Respondent No. 4 and Respondent No. 5 respectively.
c) As per the information with Revenue through NMS/ITD/AIR/CIB Statements and Individual Transaction Statements (ITS) and 26AS, it is observed that the Respondent Company has received contractual payment of Rs. 12,94,000/- during F.Y. 2011-12 relevant to AY 2011-12 on which TDS has been deducted under Section 194C.
d) From the Non-Filers Monitoring System (NMS) it is observed that the Respondent Company has not filed its return of income (ITR) for A.Y. 2011-12. 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. Thus, the Company has violated the provisions of the Income Tax Act by not filing the ITR.
e) In view of the fact that the Company had received contractual payment of Rs. 12,94,000/- and made cash deposit of Rs. 3,00,000/- during F.Y. 2010-11 relevant to A.Y. 2011-12 but the Respondent Company failed to disclose fully and truly all material particular for assessment, the Assessing Officer has reasons to believe that an amount of Rs. 12,94,000/- (Rs. 3,00,000/- +9,94,000/-) has escaped assessment within the meaning of Section 147 of the I.T. Act for A.Y. 2011-12, thereby rendering the company liable for consequences under Income Tax Act, 1961 and entitling the Revenue department to initiate proceedings against the Company. Prima facie, there appears tax evasion which requires action in accordance with law.
f) Therefore, Notice dated 30.03.2018 under section 148 of the IT Act for AY 2011-12 has been issued to the Respondent Company. The case of the Respondent Company has been re-opened under section 147 of the IT Act for assessing the aforesaid transactions in the hands of the Company. Copy of the said notice dated 30.03.2018 under section 148 of the IT Act is filed along with the appeal.
Notices dated 22.10.2018 under Section 142(1) have been issued to the Respondent Company directing it to produce the details relating to the assessments.
g) On perusal of the MCA website, the Appellant has come to know that the Respondent Company has been "struck off" by ROC vide STK-7 dated 30.06.2017 (company's name appeared at serial no. 22415) seriously affecting the assessment and recovery proceedings. It is submitted that for framing assessment, for recovery of the taxes from the Respondent Company 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.
It is noted that on 07.08.2023, no one has appeared on behalf of Respondent Nos. 2 to 5, despite due service of notice. On 24.02.2023, Respondent No. 1 namely Mr. Ravi Kiran, Assistant RoC appeared and submitted that they have no objection w.r.t. the revival of the Respondent Company.
Analysis and Findings
a. Considering the facts and circumstances of the case before us and the averments as made by the Appellant, this Tribunal is of the earnest view that fairness and justice go hand in hand and so this Tribunal must weigh the requirement of being just from the lens of fairness and justice based on the reasons put forth by the Appellant in the instant appeal. It is to be borne in mind that the presence of the word ‘or otherwise’ signifies that even if the Company was not carrying on any business or was not in operation at the time of striking off, it is still open to the Tribunal to order restoration if it appears to it to be ‘otherwise’ ‘just’. Further, it is pertinent to mention that the term ‘Creditor’ in Section 252 of the Companies Act, 2013 ought to be construed widely so as to include a ‘creditor’ whose debt was contingent or prospective.
b) At this juncture, it is relevant to refer to the Hon’ble Delhi High Court’s judgement in “Sidhant Garg and Anr. V. ‘Registrar of Companies and Ors.” reported in (2012) 171 Comp. Cas. 326, wherein the Hon’ble High Court held that, “the word “just” would mean that it is fair and prudent from a commercial point of view to restoring the Company and that the Court has to examine the concept of ‘justness’ not exclusively from the perspective of a creditor or a member or a debtor but from the perspective of the society as a whole.”
c) We are of the considered view that the appellant has succeeded in substantiating that demand is pending for the A.Y. 2011-12, against the Respondent No.2 Company as assessed by the Appellant. Accordingly, the Appellant succeeds in representing that the Appellant is the creditor of the Respondent No.2 Company who is aggrieved against the striking of Respondent No.2 Company’s name vide Registrar of Companies order dated 30.06.2017 and established before this Tribunal that there is a cogent and convincing reason as to why the name of the Respondent No.2 Company be restored in the register of companies maintained by the Registrar of Companies. Even otherwise, collection of due taxes is a duty cast upon the Revenue authorities in the public interest only, which shall get adversely affected if the Respondent No.2 Company name is not restored to the Register of Companies maintained by the Registrar of Companies.
Order
i. In light of the above facts and circumstances, the Appeal bearing 1209/252/ND/2018 filed by INCOME TAX OFFICER, WARD 27(3), NEW DELHI, the Appellant before this Tribunal under Section 252 of the Companies Act, 2013 stands allowed and disposed of.
ii. In the interest of Revenue and Public, we are of the considered view that it is just and equitable to restore the name of the Respondent No.2 Company i.e. M/s. Woodpecker Designs Private Limited having CIN: U74999DL1996PTC082216 in the Register of Companies maintained by the Registrar of Companies, NCT of Delhi and Haryana to enable the Appellant to recover the outstanding demand of the tax liability of the Respondent No.2 Company.
iii. The Registrar of Companies, NCT of Delhi & Haryana is therefore directed to restore the name of the Respondent No.2 Company in their Register and also proceed to take such other and further penal action against the respondent in accordance with the statutory provisions. As a consequence, the name of the Respondent Company shall stand restored to the Register of the Registrar of Companies, as if the name of the company had not been struck off in accordance with Section 248(1) of the Companies Act, 2013.
iv. We direct the Appellant to collect the due taxes as per the fresh assessment orders passed by the concerned Income Tax Officer.
v. A certified copy of this order may be issued, if applied for, upon compliance with all requisite formalities.
No order as to costs.