Income Tax Officer, Ward 4(1) vs Registrar Of Companies & Others

Hemant Kumar Sarangi, Member (T)

The appeal is filed by Income Tax Officer, Ward 4(1) New Delhi, against the striking off of the name of the M/s Bailley Foods Private Limited

(“the companyâ€​), from the register of companies.

It is stated that the company is a private limited company incorporated under the erstwhile Companies Act, 1956, on 08.01.2010 having CIN No.

U15400 DL2010 PTC197777 with authorized capital Rs. 10,00,000/- and paid up capital of Rs. 9,98,000/-. The registered office of the company is

stated to be at J-37, Laxmi Nagar, New Delhi - 110092. Therefore, the jurisdiction lies with this Bench of the Tribunal.

The Appellant submits, that the case of M/s Bailley Foods Private Limited was identified by the Non-Filer Monitoring System (NMS) as the

company had not filed its Income Tax Return for the Assessment Year 2011-12 and did not disclose fully and truly all material particulars, therefore,

the Assessing Officer had reasons to believe that undisclosed income of Rs. 3,78,493/- chargeable to tax has escaped assessment for A.Y. 2011-12,

thereby rendering the company liable for consequences under Income Tax Act, 1961 and entitling the Revenue to initiate proceedings against the

company.

The appellant states that as per the information available with the department through NMS / ITD Software, information from AIR/CIB Statements

and individual Transaction Statements (ITS), it was observed that the Respondent Company has received interest other than interest on Securities of

Rs. 3,72,740/- from M/s V. K. Aggarwal & Co., and Rs. 5,753/- from M/s Satya Sheel Prakash and Sons, total amounting to Rs. 3,78,493/- (on which

TDS under Section 194A of the IT Act has been deducted) during the financial year 2010-11 relevant for A. Y. 2011-12.

It is further stated by the Appellant, that the notice under section 148 of the Income Tax Act 1961, dated 27.03.2018 for A.Y. 2011-12, was issued

to M/s Bailley Foods Private Limited and that assessment / reassessment proceedings so initiated were getting barred by limitation on 31.12.2018.

It is submitted that vide notice dated 18.06.2018 being Public Notice no. ROC-DEL/248/STK-5/2018/2912 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 from the date of issuance of notice 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 submitted that it is not known whether M/s Bailley Foods Private 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 08.08.2018 being Public Notice no. ROC-DEL/248(5)/STK-7/4865 in Form STK-7 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, is sought to be assailed on the ground

that the assessment/reassessment proceedings was to result in an addition of nearly Rs. 3,78,493/- in the Taxable Income of the company.

The Appellant further submitted that Assessment Order dated 03.12.2018 has been passed under section 147/148/ 144 read with section 143(3) of

the Income Tax Act, 1961 which has resulted in creation of demand of Rs. 1,58,210/-which was required to be paid within 30 days, failing which

consequences are to follow in accordance with provisions of Income Tax Act, 1961. As the Respondent Company failed to furnish its return of

income within stipulated time as required under section 139(1) of the Income Tax Act, 1961 for the A. Y. 2011-12, therefore notices dated 03.12.2018

under section 271(1)(b), 271(1)(c) and 271F were issued. Copy of said notices have been annexed along with the appeal.

The appellant has filed affidavit of service on 10.12.2018 and further on 05.08.2019. 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 09.10.2019.

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 from the transactions of the respondent company, during the assessment year 2011-12, 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 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 not 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.