AI Drafter 
TaxTMI 
TaxTMI 
2022 (11) TMI 1176
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....ce dated 28th March, 2019 (impugned notice), issued under Section 148 of the Income Tax Act, 1961 ('the Act') for Assessment Year ('AY') 2012-13 on the ground that the said notice is null and void, as it has been issued in the name of the struck off company. 3. The Respondent has filed its counter affidavit, placing on record the order dated 25th September, 2019, passed by the National Company Law Tribunal, New Delhi ('NCLT'), allowing the petition filed by the Income Tax Department ('the Department') under Section 252 of the Companies Act, 2013, for restoration of the name of the Company in the register of companies, maintained by the ROC Delhi. Learned Counsel for the Respondent states that since the Company now stands restored, the present writ petition which is premised on the sole ground that the impugned notice was issued in the name of a struck off Company, does not survive any more and the entire petition has become infructuous. 4. He further, on merits, states that though the Company was struck off with effect from 7th June, 2017, the said Company was active during AY 2012-13 and it failed to file its income tax return ('ITR') for the said assessment year and therefo....
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....er, 2019, passed by the NCLT restoring the Company, will not have the effect of curing the defect issuance of notice to the non-existent entity; we are of the opinion that the said submission of the learned counsel for the Petitioner is fallacious and is in teeth of Section 252(3) of the Companies Act, 2013 which reads as under:- "(3) If a company, or any member or creditor or workmen thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being 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 o....
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.... respect to the liability of a struck off company, it would also be instructive to refer to repealed Section 560 of the Companies Act, 1956, which corresponds to Section 248 of the Companies Act, 2013. The Sub-Section (5) of Section 560 reads as under: - "(5) At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette; and on the publication in the Official Gazette of this notice, the company shall stand dissolved: Provided that- (a) the liability, if any, of every director, 1[***] manager or other officer who was exercising any power of management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved; and (b) nothing in this sub-section shall affect the power of the Court to wind up a company the name of which has been struck off the register." 15. Clause (a) of the Proviso to Sub-Section (5) of Section 560 came up for consideration before the Supreme Court in Gopal Shri Scrips (Supra....
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.... D. Kamlapurkur and others, 1964 SCC OnLine AP 145, (b) Supreme Court in Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup & Sons, (1994) 6 SCC 623, (c) Supreme Court in First Additional Income Tax Officer, Kozhikode (Kerala) v. Mrs. Suseela Sadanandan and Another, (1965) 57 ITR 168. 18.1. However, the said decisions are distinguishable in facts inasmuch as, in Shrikishen Dhoot & Others (Supra) the Andhra Pradesh High Court has held that a suit is not maintainable against a company which was struck off from the register of companies. However, the Court in the said case has clarified that the existing liability of any director or member prior to the dissolution of the company will continue in spite of the dissolution. 18.2. In Sharvan Kumar Swarup (Supra), the Supreme Court with reference to Rule 1-BB of the Wealth Tax Rules, 1957, has held that the said Rule does not affect or alter the substantive rights and it is merely a procedural provision and therefore, not attracted to all proceedings pending at its enactment. 18.3. In Mrs. Suseela Sadanandan (Supra), the Supreme Court, was considering the issue of continuation of proceedings against the l....