TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 266
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.... Companies, New Delhi. By the impugned order dated 20.02.2020 the NCLT, while dismissing the Petition preferred by the Appellant/Applicant herein has observed as follows:- "The Counsel for the Applicant is present. The ARoC has filed report. It is deposited in the report that the Applicant Company was incorporated on 27.05.1994 and till ending 31.03.2012, Annual Reports and Balance Sheets were filed. Thereafter for non-filing of the same, the name of the Company was struck off from the Register of the Companies under Section 248(5) of the Companies Act, 2013 on 13.06.2017. Heard the counsel for the Applicant the ARoC and perused the record placed on file. The Counsel for the Applicant has referred to the IT Return Acknowledgements for the AYs 2011-12, 2012-13, 2013-14, 2016-17 and 2017-18. It is reflected from the IT Return Acknowledgements that there is no substance in the Company, the figures are shown in zero in the said acknowledgements. We have also seen from the Director's Report for the year ended 31.03.2016 that gives the impressing that the Company is not carrying on any business as most of the figures are shown in 'brackets', 'zero' and 'nil'. The Profit & Loss Accoun....
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.... of the Act. The Appellant Company has filed Income Tax Returns for the assessment year 2016-17 and 2017-18 recording a business loss of Rs. 29,315/- and Rs. 26,081/- respectively. The Learned Counsel for the Appellant submitted that the Second Respondent/Income Tax Department has admitted in its reply that they are in support of the revival of the company provided their dues are paid. It is further submitted that on 15.4.2017 the Appellant company has entered into Letter of Intent (LOI) with Isquare Properties Pvt Ltd and on 02.05.2017, a Memorandum of Understanding was entered into with Kshitij Infratech Pvt Ltd for initiating business of hostel facility on which the registered office of the company is situated. It is stated that the AGMs have been held by the Company during the period 30.06.2015 and 30.06.2017 and the AGM of 02.09.2015 and 02.09.2016 falls within the relevant period and notice of the AGM have been annexed in the Appeal Book. The Learned Counsel for the Appellant has placed reliance on the ratio of the judgement in Three Star Properties Pvt Ltd V. Kanwar Pal Singh (Company Appeal No.127/252/ND/2018 to buttress his argument "that ...further, it is also s....
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....y was not carrying out any operation for a period of 2 immediately preceding financial years nor is having any immovable property in its name. 4.Submissions of the Second Respondent/Income Tax Department The Learned Counsel for the 2nd Respondent submitted that the details of the Income Tax Returns filed by the Appellant Company from Assessment Year 2015-16 to 2019-2020 are detailed herein:- Assessment Year Date of Filing Income/(Loss) Returned Taxes Paid 2015-16 No Return filed 2016-17 14.02.2018 (-)29315 Nil 2017-18 15.02.2018 (-)26081 Nil 2018-19 No Return filed 2019-20 No Return filed It is submitted that the restoration of the Company be subject to payment of outstanding tax/dues of the Income Tax Department. It is also submitted that once the Income tax proceedings are completed and demand is crystallized, the demand never gets time barred by any limitation. Hence, the company should be restored with an undertaking to clear its tax liability due and payable to the Income Tax Department. 5. Assessment At the outset, we address ourselves to the contention of the Learned Counsel for the Appellant c....
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....hirty days from the date of the notice." The importance of the 'date' cannot be undermined keeping in view that Section 248(1)(c) provides that a company should be carrying on business or operation for two immediately preceding financial years. On a query from the Bench to the Learned Counsel appearing for the First Respondent/RoC as to which 'Mode of Despatch' the aforenoted 'Notice' was sent, it was informed to the Bench that the Notice was sent by 'ordinary' process. Hence there is no 'Proof of Service' which could be ascertained. However, a general notice with respect to all the names which have been struck off from the RoC has been said to be listed on the website of Ministry of Corporate Affairs (MCA). A perusal of the reply affidavit filed by the RoC indeed shows that the website of the MCA under Form STK-7 shows a total of 17993 + companies were shown to have been struck off from the register of the companies. Having regard to the fact that the publication in the newspaper only refers to the link of the website of the MCA but it does not state anywhere the names of the companies, which are only reflected/specified in the website, and admittedly a general notice relating t....
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....ng struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies." What has to be essentially examined by this 'Tribunal', keeping in view the provision of Section 252(3) of the Act is a) Whether the Appellant Company was carrying on business or in operation at the time of its name being struck off? b) Whether the Appellant company had any assets/immovable property at the time the name was being struck off? c) Whether the Company has held any AGM; if it was carrying on business two years prior to the date of striking of the company which in the instant case is 30.06.2017? NCLT has referred to the Income Tax returns for the Assessment Year 2011-12, 2012-13, 2013-14, 2016-17, 2017-18 and observed that the figures are shown as 'zero' in the said ackno....