Income Tax Officer Ward 6(2) vs Registrar Of Companies And Ors.

This Appeal has been filed by Income tax Officer, Ward 6(2), New Delhi invoking the provisions of Section 252(1) of the Companies Act, 2013 for restoration of the name of the Respondents -Company M/s. Comest Traders India Private Limited in the register maintained by the Registrar of Companies, NCT of Delhi &Haryana.

As per the averments, M/s. Comest Traders India Pvt. Ltd., is a private limited company registered with Registrar of Companies, NOT of Delhi & Haryana on 31.01.2014 having its Registered office at H.No.23/2, Surender Colony, Village Jharoda Majra, North East Delhi, Delhi 110084 and also at 102, Ganga Chamber,6A/1, W.E.A. Karol Bagh, New Delhi 110 005 having CIN No.U52201DL2014PTC264256 and authorized share capital of the Company is Rs.1,00,000/- and paid up share capital of the Company is 1,00,000/-.

That directors of the Respondent No.2- company, being Mr. Mukesh Kumar Sharma and Mr. Vikas Sharma have been arrayed as Respondent No.3, Respondent no.4 respectively.

From the information available with the Revenue through NMS/ ITD software information from AIR Statements and individual transaction Statements (ITS), 26AS and I-taxnet data, it is observed that substantial cash deposits to the tune of Rs.62,25,000/- were made in the Respondent-Company's Bank Account with AXIS Bank during the period of demonetization in F.Y. 2016-17 relevant to A.Y. 2017-18. The respondent company did not file its Income-tax Return for the A.Y. 2017-18.

Accordingly, notice dated 21.05.2019 U/sec.142(1) of the Income-tax Act was issued to the respondent company asking it to furnish information called for. There was no response from the respondent-company to the notice. After following due process, the Appellant passed Assessment Order on 11.12.2019 u/sec.144 r/w sec.147 of the Income-tax Act against the respondent-company for the A.Y. 2017-18. This resulted in raising income-tax demand of Rs.76,46,005/- against the respondent company. Demand Notice dated 11.12.2019 u/sec.156 of the Income-tax Act was also issued to the respondent company. As the respondent company failed to comply with the various provisions of the Income Tax Act, a penality notice dated 11.12.2019 u/sec.271F of the Inocme-tax Act was issued to respondent company and the said penalty proceedings are pending.

The respondent-company is trying to escape the assessment proceedings and the liability that may arise out of the said proceedings.

On perusal of the MCA website, the appellant has come to know that the name of the respondent company was struck off vide Notification No. ROC/DELHI/248(5)/ STK-7/4865 dated 08.08.2018 at Sr.No.24280 in terms of provision of Section 248(1) of the Companies Act, 2013 read with Rule 7 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 by the ROC.

It is submitted by the appellant that the name of the respondent company had been struck off by the ROC without enquiry and the same was not intimated to the Appellant, Assessing Officer Income-tax or the concerned Commissioner of Income Tax. The same could not 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 from the register of the Ld. ROC.

The appellant submitted that the Income Tax department being aggrieved under the Section 252 of the companies Act, 2013 by the removal of the name of the company from the register by the registrar of the company as for the reopening of assessment proceedings the company has to be in existence for recovering the taxes due and for any further consequential proceedings against the respondent-company.

It is further submitted that since the respondent company has become non-existent entity, the respondent company and its directors are trying to escape the assessment proceedings and the liability that will arise out of the said proceedings.

The respondent-company failed to appear before the Court to provide its defence. Hence, the Order was reserved on 25.02.2021.

To render assessment order valid in the eyes of Law and to enable the Appellant to take steps for recovery of taxes and for any further consequential proceedings, the respondent- company's name be restored to the Register of Companies as if the name of the company was never struck off.

Denial to restore the name of the respondent company in the Register of the ROC will not only condone the wrong doing of the respondent company but it will also encourage of escapement of tax liabilities by such subterfuge which will be prejudicial to the interest of the revenue in the long run. The service of notice to respondents has been made through publication in newspaper, but none appeared.

Upon perusal of the documents and submissions made, this appeal is allowed. The Registrar of companies is 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 respondent 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 allowed and disposed of accordingly.

Let the copy of the order be served to the parties.