Income Tax Officer, Ward 8(2) vs Registrar Of Companies, Delhi 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. Emery Buildtech India Private Limited in the Register of Companies maintained by the Registrar of

Companies (""RoC""), Respondent no.l.

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 assessment proceedings

initiated against Respondent no.2.As per averments, M/s. Emery Buildtech India Private Limited is incorporated on 28.01.2014 under the Companies

Act, 2013. That at the time of strike off the registered office of the Assessee was at B-37, Bharat Vkihar, Kakrola, New Delhi-110078.

It is submitted that the Income Tax Department has a system of collecting information from various sources mainly regarding bank deposits,

investments in mutual funds, shares, credit card expenditure, sale/purchase of immovable property, deduction of tax at source by payers of amount,

foreign remittances, custom duties paid, service tax paid, other hight value transactions etc. Such information is forwarded to jurisdictional Assessing

Officer for taking further necessary action in the cases in which information is received. The said information in the cases where the assesse has not

filed its return of income (ITR) is available in NMS (Non-Filers Monitoring System) Module of Database maintained by Income Tax Department.

Further it is submitted that the Respondent Company has filed its Income Tax Return (ITR) for A.Y. 2017-18 on 29.03.2018. The Income Tax

Return of the Respondent Company for the A.Y. 2017-18 has been selected for scrutiny assessment under Computer Aided Scrutiny Selection

(CASS) and a Notice dated 16.08.2018 has been issued under Section 143(2) of the income Tax Act to the Respondent Company.

The notice u/s 142(1) of the IT Act, dated 24.07.2019, 20.11.2019 and 25.11.2019 was issued to the assessee in respect of the assessment or the

A.Y.2017-18. However, the said notice has remained unserved/ uncompiled with.

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 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/ uncompiled 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.

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 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

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.