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JUDGMENT
The present petition in Form NCLT No.9 is filed by the Deputy Commissioner of Income Tax, Central Circle-I, Aaytan Tower, Civil Lines, Jalandhar (Punjab)- 144001 (hereinafter referred to as the 'petitioner') under Section 252(1) of the Companies Act, 2013 (hereinafter referred to as the 'Act') seeking restoration of the name of M/s Glitter Exim Private Limited, respondent No.2, (hereinafter referred to as 'respondent-company'). The CIN of the respondent-company is U74999PB2009PTC032754. As per the master data of the respondent-company, attached at Annexure 3 of the petition, the company was incorporated on 15.04.2009. The registered address of the respondent-company is at Bath Castle GT Road, Opposite McDowel Restaurants, Jalandhar- 144001 and therefore, the matter lies within the territorial jurisdiction of this Tribunal.
2. The petition is accompanied by the affidavit which is signed and verified by Shri Dinesh Kumar Gupta, Deputy Commissioner of Income Tax, the same is at Page 30-32 of the petition.
3. As per master data of the respondent-company, its Authorized Share Capital is ₹2,00,00,000/- and Paid-up Share Capital is ₹2,00,00,000/-.
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4. The Memorandum and Articles of Association are part of the record and the same is at Annexure A-2 of the paper book. The main objects of the Company are as under:-
"1. To carry on the business of importers, exporters, traders, buyers, sellers, exchange, hold and deal in all types of jewellery, ornaments, gems, gold jewellery, metal jewellery, silver jewellery, artificial jewellery, diamonds, stones, bullions, precious metals, precious stones, pearls, coins, cups, medals, antiques, valuables, shields and other fashion related accessories."
5. It is stated in the petition that Respondent No.1, Registrar of Companies, Punjab and Chandigarh ('ROC'), struck off the name of the Company from the Register of Companies due to defaults in filing the financial statements and annual returns. It is also stated that respondent No.2-company had not filed its Annual Returns and Financial Statements with ROC since its incorporation. It is further stated that respondent No.1 invoked the provision of sub-section (5) of Section 248 of the Companies Act, 2013 for removing the name from the Register of Companies and vide Form STK-7 dated 04.06.2018, removed the name of respondent no.2- company from the Register of Companies maintained by it, vide Notification dated 04.06.2018, as per ROC Report, filed vide Diary No.5219 dated
30.09.2019.
6. It is stated that a search and seizure operation under Section 132(1) of the Income Tax Act, 1961, was carried out on 27.12.2017 at the registered address of the respondent No.2-company. Copy of the warrant of authorization for search under the Income Tax Act, 1961, is appended with the petition as Annexure A-6. It is further submitted that pursuant to such
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search and seizure operation, proceedings under Section 153A of the Income Tax Act, are yet to be initiated for the assessment years 2012-13 & 2017-18 and also under Section 142(1) of the Income Tax Act, for the assessment year 2018-19.
7. It is submitted that only while contemplating the proceedings under Section 153A of the Act, the Assessing Officer came to know the fact of 'struck off' status of respondent No.2-company in the Register of Companies, maintained by respondent no.1 and was unable to initiate any further proceedings against respondent No.2 under the Income Tax Act due to removal of the name of respondent No.2 from the Register of Companies.
8. It is also contended that a letter dated 11.09.2018 has been forwarded from the office of Deputy Commissioner of Income Tax, Circle IV, Room No.103, C.R. Building, Jalandhar to the respondent No.1-ROC requesting revival of respondent No.2 company, so that the pending income tax proceedings can be carried out. Copy of the said letter has been appended as Annexure A-7 of the petition.
9. It is further submitted that the Principal Commissioner of Income Tax-2, Jalandhar, transferred the above case to the present petitioner for coordinated investigation and administrative convenience and hence this petition. Copy of the order in this regard is placed at Annexure A-8 of the petition.
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10. Vide order dated 09.08.2019, notice of this petition was directed to be issued to the Respondent Nos. 1 to 4 at their registered address along with copy of the petition.
11. The ROC has filed the report vide Diary No.5182 dated 27.09.2019. It is stated that Registrar of Companies, Punjab and Chandigarh had issued notice to the company and its directors in terms of Section 248 of the Companies Act, 2013 read with Rule 7 & 9 of Company (Removal of Names of Companies from the Register of Companies) Rules, 2016 because the company had not field the statutory annual documents with the Registrar of Companies for the last 7 years i.e. 2009-10 to 2015-2016 and believing that the company was not carrying on business or not in operation at the time of struck off and pursuant to which the name of respondent No.2-company was struck off, vide notification dated 30.06.2017. It has been prayed that the matter may be decided on its merit and respondent No.2 to 4 may be directed to file all the pending documents including all the due Annual Returns and Balance Sheets along with the requisite fee and additional fee as prescribed in the Rules.
12. On the last date of hearing, learned counsel for respondent No.3 submitted that they have no objection for restoration of the company and that the CP may be allowed.
13. There has been no representation from respondent No.2 and 4 so far.
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14. We have heard the learned counsel for the petitioner-Income Tax Department and the learned counsel for respondent No. 3 and have also perused the record.
15. The relevant Section 252(1) of the Act is as follows:-
(1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies:
Provided that before passing any order 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."
16. The present petition has been filed by the Income Tax Department, who is aggrieved by the order of ROC and is within three years' time period after the publication of official notification, striking off the name of respondent No.2 from the Register of Companies.
17. The learned counsel for the petitioner-Income Tax Department submitted that the Department is unable to conduct any further proceedings under the Income Tax Act, 1961, due to the present 'inactive' status of respondent No.2-company and has filed this appeal accordingly.
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18. The learned counsel for the Income Tax Department also laid emphasis on the provision of Section 248(6) of the Act and contended that the procedure prescribed under the provisions was not followed. Section 248(6) of the Act reads as under:-
"(6) The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company:
Provided that notwithstanding the undertakings referred to in this sub- section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies."
19. It is to be seen that whether respondent No.1 has complied with the provisions as stated in Section 248(6) of the Act. It could be observed from the above stated provision that before passing the order of striking off the company from the Register of Companies, the ROC need to have make sufficient provision for the payment or discharge of its liabilities and obligations by the company within a reasonable time. It is quite evident from the contents of petition that respondent No.1 has failed to provide notice to the petitioner-Income Tax Department before taking any action under Section 248(5) of the Act.
20. It is also observed that allowing this petition would only enable the petitioner to conduct further proceedings under the Income Tax Act. Therefore, this petition deserves to be allowed.
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21. It is therefore, held that ingredients provided for in 252(1) of the Act, are satisfied.
22. In view of the above, the petition is allowed and it is just and equitable to restore the name of respondent No.2-company in the Register of Companies. Further directions are issued as under:-
a) The petitioner shall deliver a certified copy of the order to the Registrar of Companies within 30 days from the date of receipt of certified copy of this order;
b) On such delivery, the Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette;
c) The Respondent No.2-Company is directed to pay the requisite fee for filing the Balance Sheets and Annual Returns up to date with the applicable fee and the additional fee as prescribed in the Rules;
d) The Respondent No.2-Company shall file pending financial statements and Annual Returns with the Registrar of Companies and comply with the requirements of the Companies Act, 2013 and rules made thereunder within one month of the notification of restoration of the company's name in the Register of Companies;
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e) The Registrar of Companies will be at liberty to proceed against the company and its officers for the delay in filing of the Balance Sheets and Annual Returns for the years in default; and
f) The Income Tax Department may take necessary action as per law for non-filing or belated filing of the Income Tax Returns of the Respondent No.2-Company for any of the assessment year and also for recovery of outstanding demand, if any or for violation of any other provisions of the Income Tax Act, 1961.
Copy of this order be communicated to the petitioner-Income Tax Department and Respondent Nos. 1 to 4.
Sd/- Sd/-
(Pradeep R.Sethi) (Ajay Kumar Vatsavayi)
Member (Technical) Member (Judicial)
January 07th, 2020
Mohit Kumar