Rahul Bhatnagar, Member (T)
1. The instant Appeal has been filed by appellant i.e. Income Tax Officer, Ward 21(1), New Delhi invoking the provisions of Section 252(1) of the Companies Act, 2013 (herein referred as ‘Act’) for restoration of the name of the Respondents No.2 -Company M/s. Rosemary Properties Pvt. Ltd., in the register maintained by the Registrar of Companies, NCT of Delhi & Haryana.
2. The appellant submitted that the respondent No.2 was a Private Limited company registered with Registrar of Companies, NCT of Delhi & Haryana on 26.04.2005 having its Registered office at 2/1, Chhatarpur More, Mehrauli, South Delhi, Delhi -110030 having CIN No. U74999DL2005PTC135397. The Authorized share capital of the Company was Rs.5,00,000/- and paid up share capital of the Company was Rs. 1,00,000/- as shown on the MCA website of Company’s Master Data. That respondents No. 3 is the Director of the respondent- Company.
3. The Income Tax Department has a system of collecting information from various sources. The information collected is mainly regarding bank deposits investments in mutual funds, shares, credit card , ' immoveable property, deduction of Tax at Source by payers of amount, foreign remittances, custom duties paid, service tax paid after high value transactions etc. After collection of information from various sources, the information is forwarded to jurisdictional Assessing Officers for taking further necessary action in the cases in which information is received. The said information in the cases where the Assessee has not filed its Return of Income is available in NMS module of the Database maintained by the Income tax Department.
In order to substantiate this case, the Appellant had issued Notice U/s.142(1) on 09.08.2019, 27.09.2019 and then U/s.142(1)/ 144 on 31.10.2019 , 22.11.2019 and then issued Show cause Notice u/sec.144 of Income-Tax Act, 1961 on 29.11.2019 and subsequently passed an Assessment Order dated 08.12.2019 against the Respondent Company for AY 2012-13 u/s 147/143(3) and issued a demand notice u/s 156 of the Act for Rs. 71,81,160/- and thereafter the penalty proceedings u/s 271A, 271(l)(b), 271(l)(c)& 271F were initiated against the respondent - company for A.Y. 2012-13 vide show cause notices dated 08.12.2019. The penalty proceedings against the respondent-company are pending. The respondent-company sold immovable property valued at Rs.30 lakhs during 01.04.2011 to 31.03.2012.
4. The Appellant Revenue Department came to know from MCA portal that ROC struck-off the name of the company without following the mandatory provisions, which resulted into revenue loss to Income-tax Department. Hence, the appellant filed the present appeal to restore the company to its original number.
From the perusal of the record, it is also established that the name of the Company is struck-off by RoC initially by issuing Notice No. ROC-DEL/248/STK-5/721 dated 27.04.2017 followed by Notification No.ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017 at Sr.No.16513.
5. Apparently, there are outstanding tax dues against the Respondent no.2 Company which were much prior to the striking off the name from RoC. Accordingly, Revenue Department have to take coercive steps against the Respondent Company and its Directors which may include criminal proceedings. Hence, it is required that the company’s name be restored as assessment proceedings against a dead company may not be sustainable in the eyes of law.
6. From the perusal of the record, it is also found that RoC struck-off the name of Company without making any due enquiry and even the appellant i.e. Assessing Officer of the Income Tax Department was also not intimated in the due course, which resulted in evasion of the tax liability causing loss of revenue.
7. In the present matter, Respondents No.2 & 3 failed to appear before this Tribunal, despite the fact that they were duly served and were proceeded ex-parte. Hence, the evidence placed on record by the appellant herein remains un-rebutted. Even otherwise, the appellant herein duly established on the record that there was evasion of taxes by the Respondents No. 2. Denial to restore the name of the respondent no.2 company in the Register of the ROC will not only condone the wrong doing of the respondent no.2 company, but it will also encourage escapement of tax liabilities, which will be prejudicial to the interest of the revenue in the long run. Because in the guise of the fact that the Assessee is a non-existent entity, the Assessee and its Directors are trying to escape the demands and the prosecution proceedings and the liability that will arise out of the said proceedings.
8. Further, in order 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 no.2- company’s name be restored to the Register of Companies as if the name of the company was never struck off.
9. In sequel of the above said discussion, we are of the firm view that the appellant herein succeeded in proving that there was tax evasion on the part of Respondents No. 2 & 3 and the name of company i.e. respondent No. 2 was got struck-off from the register of the Registrar of the Companies without following the due procedure established, accordingly, the Public Notice of RoC striking off name of the respondent-company is set-aside.
10. The Appellant submitted that the Income Tax Department being aggrieved person and also creditor under Section 252(1) and 252(3) 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.
11. 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 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.
12. The Appeal is allowed and disposed of.
13. Let the copy of the order be served to the parties.
