TaxTMI 
TaxTMI 
2018 (9) TMI 335
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....ith CIN NO.24232DL20000PTC186586 by the Respondent and having PAN No. PAFPM8609R was being assessed to income tax under the jurisdiction of Income Tax Officer, Ward 17(2) and that income tax returns were not filed by the said company for the assessment years 2009-10 to 2013-2014; (ii) That the company had been struck off, by virtue of an application which had been filed on 22.11.2014 by the Company through its Director one Mr. Deepak Singh, wherein it had sought to avail the Fast Track Exit(FTE) Mode as formulated by the Ministry of Corporate Affairs and implemented by the respondent, for the purpose of easy exit of companies under Section 560 of the erstwhile Companies Act, 1956 and based on the said application, the name of the company had been struck off from the register as and from 31.1.2015; (iii) That the company had made the application before the respondent for having its name struck off based on incorrect information and that the respondent had without any proper enquiry as required to be made under the guidelines framed for availing the FTE Mode being the guidelines as per Circular No.36/2011 dated 7.6.2011 wherein the Income Tax Authorities or any other Central Gove....
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....any it did not respond for enquiry and that the appellant only at the said point came to know that the name of the company itself has been struck off and in the circumstances this appeal seeking for restoration. 3. In the appeal it is further submitted that the cause of action arose on 15.1.2015 when the name of the company had been struck off as defunct and deleted from the register of Companies and subsequently on 23.1.2017 when notice was issued by the Income Tax Department under Section 148 of the Income Tax Act, 1961 to the company and since the Directors of the company have failed to file reply to the notice and in the said circumstances the Appellant has approached this Tribunal by way of this Appeal seeking for the restoration of the name of the company in the register of companies of the respondent, as the company being an assessee under the Income Tax Act, 1961 and amenable to the jurisdiction of the Appellant, by quashing the order dated 15.1.2015 of the respondent which removed the name of the assessee company from the register. 4. Upon notice of the appeal to the respondent RoC, a reply has been filed by the respondent. Perusal of the said reply shows that the compan....
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....g that the Company has no dues towards Income Tax/Sales Tax/Central Excise/Banks and Financial Institutions or any other Central or State Government Departments/Authorities or any Local Authorities and in addition an indemnity bond duly notarized is to be given by every Director individually or collectively to the effect that any losses, claim and liabilities of the Company, will be met in full by every Director individually or collectively even after the name of the Company is struck off from the register of Companies and since all the documents had been filed as well as certified and thus taking into consideration all the above, the Respondent it is contended is justified in striking off the name of the Company based on the application and the documents accompanying it filed by the Company and its Directors. 6. In any case, it is also contended by the respondent that redressal mechanism is also provided for enforcement of liabilities that may arise in case the Company is dissolved as provided in proviso (a) to Section 560(5) of Companies Act, 1956 and Section 179 of Income Tax Act, 1961 as has been extracted by the appellant itself in the appeal. Presumptive and hypothetical sce....
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....has been struck off to his last known address has been returned with the remarks 'item delivery attempted Insufficient Address', as per the tracking report of India Post. However, in relation to Mr.Chandan Singh Karakoti, Director, notice of the appeal seems to have been delivered as per the tracking report. Notice seems to have been also delivered to the Company Secretary and Chartered Accountant who had certified compliance and the statement of accounts and the balance sheet filed alongwith the application at the time of seeking for exit under the FTE Mode by the Company. However, none has put in appearance despite the specific directions of this Tribunal. In the circumstances, this Tribunal vide order dated 7.5.2018 directed the appellants to take one more notice to the Director of the Company who had not been served namely, Mr. Deepak Singh and in proof of compliance of directions dated 7.5.2018, a returned cover addressed to the said person has been duly filed before this Tribunal on 23.5.2018 and a perusal of the same shows that it has been again returned by the postal authorities with an endorsement "incomplete address". The appellant submitted that in view of suffic....
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....me Tax Act, 1961 by the concerned Income Tax Officer (ITO) vide order dated 17.3.2017 and pointed out to the ultimate paragraph of the said order recording the reasons which had lead the ITO to believe that a sum of Rs. 49.00 lakhs towards income had escaped assessment of the Company for the years 2010-11 within the meaning of Sections 147 and 148 of the Income Tax Act and which had lead the ITO to re-open the assessment and that the same has also been approved by the Pr. Commissioner, Income Tax, being the appellant herein, vide order dated 20.3.2017.Further it is also submitted that the order of ITO dated 17.03.2017 and subsequent confirmation or approval on 20.03.2017 also demonstrates that there has been an application of mind by the appellant for re-opening the assessment as made out by the concerned ITO and as sanctioned by the Pr. Commissioner, Income Tax under Section 151 of the Income Tax Act, 1961 and consequently a notice to be issued to the Company in pursuance to the sanction thereof. 9. During the course of the submissions made on behalf of the appellant, attention of this Tribunal is also drawn to the guidelines which have been issued by the Ministry of Corporate Af....
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....dated 14.10.2014, based on the resolution passed by the Board of Directors, as stated in the application dated 15.9.2014, duly supported by the affidavit of Mr. Deepak Singh as well as Mr. Chandan Singh Karakoti, both of whom have represented that the Company does not have any liabilities as on the said date and that as on the said date the Company also did not have any dues payable towards income tax, sales tax, central excise, banks and financial institutions or any other central or state government authorities or any other local authorities and that the said affidavit have also been dated 11.10.2014 duly notarized by the notary attesting the signatures of the deponents of the said affidavit. It is also submitted that a copy of the PAN cards of the Directors of the Company as well as certificate by the Company Secretary, Mr. Manoj Gupta along with Election ID of the respective Directors had also been enclosed. The said application it is represented is also supported by an indemnity bond, as required to be given by Directors of the Company and which were also furnished and in which the signatures of the respective Directors/persons have also been duly attested by a notary. It is a....
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....rder under this section, the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned : Provided further that If the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period of three years from the date of passing of the order dissolving the company under section 248, file an application before the Tribunal seeking restoration of name of such company. (2) A copy of the order passed by the Tribunal shall be filed by the company with the Registrar within thirty days from the date of the order and on receipt of the order, the Registrar shall cause the name of the company to be restored in the register of companies and shall issue a fresh certificate of incorporation. (3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the ....
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....aji Bashir Ahmed 1976 SC 578, 581. Reference to the above enunciation of the term 'aggrieved' or 'aggrieved person' discloses that the term ' aggrieved' cannot be confined to a narrow interpretation when the construction of the statute demands otherwise. Taking into consideration several decisions of the Hon'ble Supreme Court in this regard that a busy body or a stranger cannot be construed as an aggrieved person, it is required to be seen that under the provisions of Section 252(1) of the Companies Act, 2013 whether Income Tax can be considered as one and the answer to the same can be only a resounding "no' as otherwise under the guidelines of 2011 and presently under the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 notice prior to striking off to the income tax would not have been prescribed. 14. In this case, it is seen that an affidavit has been filed by the Company through its Directors in which it is stated by the Directors of the Company that the Company did not owe any liabilities including any tax dues either to the Income Tax or to such other authorities as named therein. However on the contrary, it ....
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....n whole time practice has also certified that all compliances have been made. Thus, it is evident that the respondent on this count cannot be faulted with, as striking off of the name of the Company has taken place at the instigation of the Company. 17. However, the grievance of the Income Tax is that prior to striking off, notice was not given to the revenue by the Respondent as per the guidelines and in the circumstances, they were not in a position to raise any objection. However, in negation of this, the Respondent has filed Annexure-I to the reply being a communication bearing No.ROC/Nov.l4/560/IT Dept./10286 dated 02.01.2015 addressed to the ITO, O/o the ITO, Ward 22(4)., Room No.225C, CR Building, New Delhi-110002 and that according to the respondent this communication is in compliance with the guidelines formulated by the Ministry of Corporate Affairs to be followed prior to the striking off of the name of the Company dated 7.6.2011 and that in view of sufficient compliances with the procedure as enunciated in paragraph 2(c)of the said guidelines, the respondent having also sent the communication which was addressed on 2.1,2015 to the appellant and the actual striking was ....
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....e company itself on 15.01.2015 followed by notification in the gazette on 31.03.2015. Thus, even on this count, the Respondent cannot be faulted that due procedure as prescribed under the guidelines in relation to FTE Mode formulated by the Ministry of Corporate Affairs has not been followed and that there has been sufficient compliance on the part of the Respondent in addressing the communication, even though not to the Assessing Officer. However, in relation to the same a representation was made by the Ld. Company Prosecutor during the course of his submissions that the communication was sent, as has been consistently sent over a period of time and that the same being in accordance as per the Instructions of the Income Tax Department. Since in relation to the said instructions, no proof has been adduced by the Respondent and in the circumstances/we are unable to consider the same. In this regard, it should be pointed out that an onus is cast upon on the revenue to also act with alacrity upon receipt of notice from the respondent. 19. However, facts as averred and documents filed along with the appeal clearly discloses that the belief of Income Tax in coming to a conclusion that ....
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....ately avoided notice issued at the behest of this Tribunal all pointing out to the fact that they do not have any face to defend their action in seeking striking off based on a fraudulent application supported by a false affidavit and backed by certificates which are also based on falsehood/Thus it is seen that the application filed for striking off under FTE Mode by the company is in itself based on false declaration which has led the respondent to order the striking off of the name of the company from the Register of Companies as passed on 15.01.2015 followed up with the gazette publication on 31.01.2015 and from the facts detailed herein above it is seen that the entire proceeding is thereby vitiated by fraud played by the company and its directors upon the respondent and in the circumstances the order of striking off in itself is required to be set aside, whether it has been passed under the provisions of 1956 Act or 2013 Act thereby resulting in the restoration of the name of the company being Motiram Pharmaceutical Private Ltd in the register of companies maintained by the respondent. Since the revenue has been seriously prejudiced by the act of fraud played by the company an....