PR. Commissioner Of Income Tax-8 vs Registrar Of Companies And Ors.

This petition 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 Shree Bhagwan Electricals Pvt. Ltd, in the Register of Companies maintained by the RoC, Respondent

No. 1.

Vide Proceedings initiated by the Ministry of Corporate Affairs, through the office of the RoC, names of several companies were struck off for want of filing Statutory Returns.

Respondent no.2 company, which had also not filed any Return or Financial Statement was duly struck off from the Register of Companies vide STK-7 dated 07.06.2017

Invoking the provision of section 252 of the Act, the Income Tax Dept. prays for its restoration in order to carry out the assessment proceedings initiated against them. As per averments, on the basis of the AIR information received by the dept, the respondent company has made undisclosed cash deposit amounting to Rs. 11, 80,130/- in the bank account including cash transaction in bank account to the extent of Rs. 31,80,130/- and on account of professional and technical fee to the extent of Rs. 46,907/- , but had failed to file their returns by the Income Tax dept for the relevant AY 2010-11. It was contended that in the guise of the fact that the company is a non-existing entity, the company and its directors are trying to escape the assessment proceedings and the liability that may arise out of the said proceedings.

Ld. Standing Counsel for the IT dept. submits that there are recovery & penalty proceedings pending U/S 148 of Income Tax Act. Action in accordance with law is required to be initiated against the company. Notice dated 31.03.2017 U/S 148 of the Income Tax Act, 1961 was issued to the respondent at its registered address/ email id as well as vide affixation to which there has been no response and was returned as unserved.

The grievance of the Income Tax Dept is that the name of the respondent company had been struck off by the RoC without any proper enquiry and neither the Assessing Officer nor the petitioner here in the case of the respondent company was informed or made privy to the proceedings or application for getting the name removed of the respondent company from the register of the RoC. To which the RoC in its reply has stated that the RoC had sent vide letter dated 03.05.2017 to the petitioner seeking NOC/objection against the companies for action under section 248(1) of Companies Act 2013.

Ld. Counsel for the Income Tax Submits that the aforesaid facts necessitate restoration of the name of the Respondent Company in the Register of Companies to proceed further in accordance with law. In view of the grounds raised by the applicant, being an aggrieved person, the prayer can be entertained u/s 252(3) of the Companies Act, 2013.

The RoC submitted that they have no objections to the prayer of the petitioner being granted by this bench. Service was duly effected on the respondent company and its ex-Directors. The ex-directors filed the reply and contended that the liability of tax can be enforced without the name of the company being restored, relying on the provision of section 248(7) of the Companies Act, 2013, stating that, in the event of the dissolution of the Company, the liability of every director or manager or any other officer, exercising the power of management of the company, shall continue and may be enforced as if Company has not been dissolved.

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 averment made in the petition and in no way endorse or have adjudicated about their entitlement to recover 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 Petitioner. Petition is disposed off in terms of the above. Compliance be made with the RoC within 30 days.

The petition is therefore allowed. The RoC is therefore 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 respondents in accordance with the statutory provisions.