Joint Commissioner Of Income Tax vs Registrar Of Companies Nct Of Delhi & Haryana And Ors

Sumita Purkayastha, (Member Technical)

This Appeal has been filed by Jt. Commissioner of Income tax Officer, (OSD), Circle 27(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. Whiteline Fabrics Private Limited in the register maintained

by the Registrar of Companies, NCT of Delhi & Haryana.

As per the averments, M/s. Whiteline Fabrics Pvt. Ltd., is a private limited company registered with Registrar of Companies, NCT of Delhi &

Haryana on 17.10.2011 having its Registered office at 106, Palco House, T-10, Main Patel Road, Patel Nagar, New Delhi 110008 having CIN

No.017299DL2011PTC226356. The 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. Om Parkash Bansal and Mr. Sanjay Kumar Goel have been arrayed as Respondent

No.3, Respondent no.4 respectively.

From the information available with the Income-tax Officer, (Inv.) (OSD), Unit-1, New Delhi vide communication dated 18.03.2019, during the

F.Y. 2010-11 huge amount of transaction were made in the bank accounts of M/s. Shalini Holding Pvt Ltd. On perusal , it was noticed that Shri V

irender Kumar Jain is one of the Directors in the said Company. A search and seizure operation under Sec.132 of the Income-tax Act was carried out

at various premises of Shri Virendra Kumar Jain and Shri Surender Jumar Jain on 14.09.2010. During serarch, documents related to beneficiaries in

the form of papers and hard discs were also found, establishing the fact that they were engaged in the business of providing accommodation entries at

large scale.

It is informed that M/s. Whiteline Fabrics Pvt Ltd is one of the entity controlled by the Jain Brothers and as per Bank statements, an amount of

Rs.54,60,000/- were credited from 15.12.2011 to 30.03.2012 and the same was transferred to various parties.

As per IT System, the respondent-company did not file its ITR for A.Y. 2012-13 despite the fact that during F.Y. 2011-12 relevant to A.Y.. 2012-13,

there were substantial credits in its Bank account. As per provisions of Sec.139, every company is mandatorily required to file its return of income

before the due date in prescribed Form duly certified thus Respondent- company violated the provisions of Income-tax Act.

As the respondent-company did not file its income tax Return for the said Assessment Year and atleast a sum of Rs.54,60,000/ has escaped

assessment within the meaning of Sec. 147/148 and consequently the said income has not been brought under tax for the A.Y. 2012-13 thereby render

the respondent-company liable for consequences under the Income-tax Act, 1961 and entitling Revenue to initiate proceedings against the respondent-

company. Approval for re-opening of Assessment of the respondent-company was obtained after recording reasons. A Notice dated 29.03.2019

U/Sec. 148 was issued to the respondent-company. The Appellant issued Assessment Order dated 02.12.2019 U/Sec. 144/147 and Penalty Notice

dated 02.12.2.2019 U/Sec.271(1)(c ) and Penalty Notice dated 03.12.2019 U/Sec.271F of the Income tax Act, 1961 to the respondent company and

attached copies thereof with the appeal.

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 MOCA website, the appellant has come to know that the name of the respondent company was struck off 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 and STK-7 has not been uploaded on the website of MOCA.

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 Jt. 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 framing Assessment Order 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 03.08.2021.

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.