Income Tax Officer, Ward 7(1) vs Registrar Of Companies And Ors

Dr. P.S.N. Prasad, J

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 GLS Technologies Private Limited, in the Register of Companies maintained by the Registrar of Companies ("RoC"), Respondent No. 1.

Service of notice was duly effected on the Respondents. Other than the RoC, none appeared on behalf of the other Respondents to oppose the prayer made by the Appellant. The RoC submitted that they have no objections to the prayer of the Appellant being granted by this Tribunal.

Vide proceedings initiated by the Ministry of Corporate Affairs, through the office of the RoC several names of companies were struck off for want of statutory filings. Respondent No. 2 company, which had also not filed any returns or financial statements was duly struck off from the register of companies.

Invoking the provision of section 252 of the Act, the Income Tax Dept. prays for its restoration in order to carry out proceedings initiated against Respondent 2. As per averments made in the appeal the information was received from Assistant Director of Income Tax Unit-3(3). New Delhi vide communication dated 31.03.2017 informing that the Respondent Company has two accounts viz. Account No. 033005005421 and 082905000491 with the ICICI Bank. It was also informed that the Respondent Company appears to be involved in Multi Level Marketing (MLM) having website http://www.dzireworld.com/bank.html on which bank account No. 033005005420 (belonging to M/s. Dezire Greenhomes Ltd. and M/s. Dzire Sales Pvt. Ltd. are group companies and have principal officers.

The applicant further submitted that the account bearing number 082905000489 large credits by way of transfer are seen from bank account No. 033005005420 and subsequent debits are by way of transfers to third parties.

It was observed that the respondent company has credit to the extent of Rs. 3,57,050/- in its bank account No. 033005005421 during the financial year 2010-11 relevant to the A.Y. 2011-12.

As per the Appellant, the respondent company had not filed its ITR for A.Y. 2011-12. Notice dated 31.03.2018 under section 148 of the I.T. Act was issued to the respondent company for the A.Y. 2011-12 for initiating assessment proceedings to assess the income not disclosed by the company. However, no response has been received. 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 provision of the Income Tax Act by not filing the ITR.

It is further contended by the Appellant that the respondent company did not file its ITR and did not disclose fully and truly all the material particulars required for completing the assessment, the Assessing Officer has reason to believe that an estimated amount of at least Rs. 3,57,050/- has escaped assessment within the meaning of section 147/148 of the I.T. Act and has not been brought under tax for the 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. Thus, prima facie, there appears tax evasion which requires action in accordance with law.

Therefore, notice dated 31.03.2018 under section 148 of the I.T. Act for the A.Y. 2012-13 has been issued to the respondent company. The case of the respondent company has been re-opened under section 147 of the I.T. Act for framing the assessment order, for recovering the taxes due and for any further consequential proceeding against the company.

A further notice dated 14.09.2018 under section 142(1) of the I.T. Act was also issued to the Respondent company seeking information and documents, thereafter a final show cause notice under section 142(1) dated 22.11.2018 fixing the case for hearing on 05.12.2018 also did not elicit any response from the Respondent Company.

The appellant has passed the assessment order on 10.12.2018 under section 144 read with section 147 of the I.T. Act against the Respondent Company for the A.Y. 2011-12. This resulted in raising of Income Tax demand of Rs. 3,06,660/- against the Respondent Company. Demand Notice dated 10.12.2018 under section 156 of the I.T. Act was also issued to the Respondent Company.

The Respondent Company failed to comply with various provisions of the Income Tax Act, separate notices dated 10.12.2.018 were issued to it under section 271(1)(b), 271(1)(c) of the I.T. Act. A separate penalty notice under section 271F of the I.T. Act was also issued but the Respondent Company did not respond to any of the notices.

The Appellant has also stated that on perusal of MCA Website, it has come to know that the said respondent company has been "struck off" by ROC, seriously affecting the assessment and recovery proceedings. It is submitted that for framing assessment and for recovery proceedings. The Appellant has also submitted that for framing assessment and for recovery of the taxes from the respondent company which is in public interest, it is just and equitable 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.

In view of the grounds raised by the Appellant which remain unrebutted, their prayer merits consideration. The appeal is therefore allowed. The RoC is therefore directed to restore the name of Respondent 2 in its register and also proceed to take such other and further penal action against the respondents in accordance with the statutory provisions.

We, however, make it clear that this Bench has only directed 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 petition and have in no way endorsed or adjudicated about the Applicant's entitlement to recover any amount as tax etc. 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 applicant. Petition is disposed of in terms of the above. Compliance be made with the ROC within 30 days.