2020 (12) TMI 376 - Tri - Companies Law

Restoration of name of Respondent in the Register of Companies maintained by the office of ROC - Section 252(3) of the Companies Act, 2013 - HELD THAT - The appeal is filed under section 252(3) of the Companies Act, 2013. While, going through the section 252(3) of the Companies Act, it is found that the instant provision is made when the company is struck of voluntarily on the behest of the Promoter(s)/Director(s), whereas, section 252(1) of the Companies Act, provides that, when the company is struck of by the Registrar of Companies on the failure in filing of statutory returns by the Company. Considering the public interest, and to protect the legitimate interest of revenue, the name of the Respondent Company requires to be restored in the Register of Companies maintained by the ROC, Ahmedabad so as to enable the Appellant (Income Tax Department) to proceed further as per rules and in accordance with law - Petition allowed.

Summary

Issues:
Restoration of company name in Register of Companies under Companies Act, 2013.

Detailed Analysis:

1. The appeal was filed by the Department of Income Tax seeking restoration of the name of a company that was struck off by the Registrar of Companies. The Income Tax Department relied on a circular directing such applications in cases where companies' names are struck off by the ROC and income tax proceedings are initiated or pending.

2. The Income Tax Department issued a notice under section 148 of the Income Tax Act, 1961 to the Assessee Company for filing returns, which the company failed to comply with. The Appellant highlighted an escapement of income amounting to a significant sum, emphasizing the need to protect revenue interests by restoring the company's name.

3. The ROC justified its action of striking off the company's name due to non-filing of statutory returns since 2015. However, the ROC, in a representation, expressed no objection to restoring the company's name as per a circular issued by the Ministry of Corporate Affairs.

4. The Tribunal noted the provisions of the Companies Act, specifically Section 252(1) and 252(3), distinguishing between cases where companies are voluntarily struck off and cases where names are struck off by the Registrar for non-compliance. Despite the misapplication of the provision in the appeal, it was treated under Section 252(1) following a Supreme Court judgment.

5. The Tribunal, considering public interest and revenue protection, ordered the restoration of the company's name in the Register of Companies. The decision aimed to enable the Income Tax Department to proceed lawfully. The appeal was allowed, directing the ROC to restore the company's name subject to publication requirements and compliance with statutory obligations.

6. The company was instructed to fulfill all requirements under the Companies Act and other statutory provisions. The time taken for the appeal's disposal was exempted for initiating income tax or legal proceedings against the Assessee Company. The order was communicated to the ROC and the company, concluding the matter.

This detailed analysis covers the key aspects of the judgment regarding the restoration of the company name in the Register of Companies under the Companies Act, 2013.