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

Hemant Kumar Sarangi, Member (T)

The appeal is filed By Pr. Commissioner Of Income Tax, Delhi-6 against the striking off of the name of the M/s Elfin Travels and Tours Pvt. Ltd.

(“the companyâ€​), from the register of companies.

It is stated that the company is a private limited company incorporated under the erstwhile Companies Act, 1956, on 22.02.1995 having CIN

No.U74999DL1995PLC065681, Authorised capital Rs. 5,00,00,000/- and paid up capital of Rs. 60,07,000/-. The registered office of the company is

stated to be at F-3, W-19, Greater Kailash, Part-II New Delhi-110048. Therefore, the jurisdiction lies with this Bench of the Tribunal.

The applicant submits that the case of M/s M K Agri International Ltd. was identified by the Non-Filer Monitoring System as the company had not

filed its Income Tax Return for the Assessment Year 2010-11 and had a share transaction for an amount aggregating to Rs. 5,30,100/- during the

Financial Year 2009-2010 relevant for the A.Y. 2010-11. This investment is clearly out of taxable income earned by the Assessee Company during

the year under consideration. However, as per the ITD system and records the Assessee has not filed any return of income for the year of income for

the year under consideration till date.

It is further stated by the applicant, that the notice under section 148 of the Income Tax Act 1961, dated 26.03.2017 for assessment year 2010-11

was issued to M/s M K Agri International Ltd. and that assessment/reassessment proceedings so initiated were getting barred by limitation on

31.12.2017. It is submitted that vide notice dated 20.06.2017 being Public Notice no. ROC-DEL/248/STK-5/2336 in Form STK-5, the Registrar of

Companies (ROC) had sought explanation from the company as to why its name should not be struck off from the register of companies on account

of not carrying on any business or operation for a period of two immediately preceding financial years and having not made any application within such

period for obtaining the status of dormant company under section 455 of the Companies Act, 2013 (Act).

The applicant has submitted that it is not known whether M/s M K Agri International Ltd. made any representation to the ROC in pursuance of the

STK-5 but it was found during the course of the assessment/reassessment proceedings that the name of the company was struck off from the register

of companies as per MCA master data of the company. The legality of the striking off the name of the company from the register of the companies is

sought to be assailed on the ground that the assessment/reassessment proceedings are likely to result in an addition of nearly Rs.5,30,100/- in the

Taxable Income of the company.

The applicant has filed its affidavit of service, it has been stated that service through regular modes was unsuccessful hence, substituted service

through publication in one English and one Hindi newspaper which were circulated on 24.12.2018 was done. The appellant has also filed their citation

along with the affidavit.

It further states that, in furtherance of the notice dated 26.03.2017 issued against M/s M K Agri International Ltd. under section 148 of the Income

Tax Act, 1961, an assessment order dated 27.12.2017 under section 144/147 of the Income Tax Act, 1961 was passed for the assessment year 2010-

11 and the taxable income of Rs.5,30,100/- was calculated. An order under Sec 271(1)(c) of the Income Tax Act, 1961 was also passed and a penalty

of Rs.1,59,030/-was imposed on the company. It has been submitted that the present appeal is filed under section 252(1) of the Act as the appellant is

a “person aggrieved†by the impugned order of the ROC. It is submitted that pursuant to the demand notice the appellant has passes an

Assessment order dated 27.12.2017, based on which it had issued Notice of Demand dated 27.12.2017 under section 156 of the Income Tax Act,

1961, whereby a sum of Rs.3,12,496/- has been demanded and in pursuance of the notice under Sec 271(1)(c) dated 15.06.2018 another Notice of

demand was issued by Revenue for an amount of Rs.1,59,030/- from the M/s M K Agri International Ltd. for assessment year 2010-11 and therefore,

the revival of the company is sought.

The Ld. Counsel for the Income Tax submits that in order to recover the taxes on the undisclosed income of the respondent company and to charge

and recover the revenue from the transactions from the respondent company during the assessment year 2011-12, it necessitates restoration of the

Respondent Company in the Register of Companies to proceed further in accordance with law, since as on date the proceedings cannot continue

against the company, because of it being struck off from the register of companies.

The income tax department is an aggrieved party within the meaning of section 252(1) as it has to recover taxes payable by respondent company

and great prejudice will be caused to Revenue if the name of the respondent company is not restored back. In above circumstances, this appeal is

allowed. The Registrar of companies 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. The name of the Appellant 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 disposed off accordingly.

Let the copy of order be supplied to parties.