Income Tax Officer, Ward 8(2) 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, viz M/ s. Elbee Portfolio Pvt. Ltd. in the Register of Companies maintained by the Registrar of Companies

(“RoCâ€​), 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 proceeding initiated against

Respondent no.2.As per averments, M/s. Elbee Portfolio Pvt. Ltd is incorporated on 09.09.2002 under the Companies Act, 2013. That at the time of

strike off the registered office of the Assessee was at 325, Vishal Tower, District Centre, Janakpuri, New Delhi-110058.

The Assessee Company has not filed return of income for the assessment years 2010-11 to 2015-16. However, the Assessee is a Company and is

mandatorily required to file its return of income under Section 139(1) of the Income Tax Act, 1961.

It is submitted that the Income Tax Department has received information that the Respondent Company has made cash transactions between the

period 9th November, 2016 to 30th December 2016 total cash deposits of Rs. 38,90,000/- in its Account No. 3075002102011664 with Punjab National

Bank, Rajinder Nagar Branch, New Delhi.

Further it is submitted that Ld. Assessing Officer had reason to believe that income of Rs.2,25,38,588/- has escaped assessment for A.Ys. 2010-11

and 2015-16 and the assessment proceedings against the Respondent Company for the A.Y. 2017-18 initiated by issuance of notice under Section

143(2).

Further it is submitted by the applicant that during the course of enquiry about the Assessee the Ld. Assessing Officer learned that the Assessee

has been struck off from the register of the Ld. ROC and therefore is no more an existing entity. That the company by getting its name struck off

from the register of the Ld. ROC, in the guise of a dead company, is trying to escape assessment proceeding and liability which may accrue from such

proceedings. It is humbly submitted that the assessment proceedings against a dead company may not hold good in the eyes of law. Therefore, for any

assessment proceedings to commence and continue, the name of the Assessee has to be restored in the register of the Ld. ROC.

The procedure laid down under Section 252 of the Companies Act, 2013 and 560 of the Companies Act, 1956 for getting the name of the company

removed from the register of the Ld. ROC does not in any stretch of imagination can be allowed to be invoked resulting in escapement of tax liability

or any other statutory liability on the company which seeks to get its name removed from the register of the Ld. ROC. It is submitted that the Ministry

of Corporate Affairs, Government of India has introduced schemes to facilitate and enforce these Sections namely Fast Track Exit Mode, 2011 and

Easy Exit Scheme, 2011 which specifically disallowed the benefit of Section 550 of the Companies Act to the companies which have liabilities towards

Income Tax Department or any other department of the Central Government or State Government.

The Department has submitted that amount of Rs.2,25,38,588/ - is required to be assessed in the hands of the above Assessee Company under the

IT Act. It is submitted that to undertake the assessment proceedings the name of the Assessee has to be restored in the register of the Ld. ROC.

The cause of action arose when the Department issued notice under Section 142(1) of the IT Act which remained un-served/uncomplied with. For

framing the assessment order and for recovering the taxes due, it is necessary that the Respondent no.2’s name be restored to the register

maintained by the RoC.

Despite several efforts and even after publication of notice in the newspaper the respondents other than AROC remained silent. Finally, they were

set ex-parte vide order dated 12.01.2021.

In view of the grounds raised by the Appellant which remain un-rebutted, their prayer merits consideration. The appeal is therefore allowed. The

RoC is therefore directed to restore the name of Respondent no.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

invoked 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.