2018 (9) TMI 335 - Tri - Companies Law

Restoration of the name of the company as been struck off by the respondent - Pr. Commissioner of Income Tax (PCIT) sought restoration for the purpose of proceedings under the Income Tax Act - Held that - Since the revenue has been seriously prejudiced by the act of fraud played by the company and its directors by filing a false declaration while seeking striking off with the respondent and by also not filing the necessary income tax returns and making a full disclosure of its affairs with the office of the appellant from the relevant assessment years being 2009-10 to 2013 which it had an onus or legal duty to perform and both of which are evident from the investigation carried out by SFIO, the appellant is to be treated as an aggrieved person entitled to maintain the present appeal. This Tribunal also fails to understand as to how the respondent despite the report of SFIO clearly pointing out that accommodation entries had been perpetrated by the company and its directors in cahoots with the others named in the report of investigation and which is not in co-relation with the details furnished in the application and the declaration and certificate in support thereof establishing prima-facie incorrect information had been furnished in the application leading to passing of the order of striking off by the respondent is opposing the restoration of the name of the Company filed by the appellant. Based on the SFIO report, the respondent in view of the incorrect information furnished by the company and its directors inducing the respondent to strike off the name of the company in the first place should have filed an application as contemplated under 2nd proviso to Section 252 of the Companies Act, 2013 seeking for restoration of the name of the company and in the circumstances we do not find any merit in the objections which are only technical and as raised by the respondent/Registrar of Companies, particularly to the effect that if the name of the company is restored there will not be any Board and nobody will be answerable. It is for the respondent to go after the perpetrators of the fraud and to bring them before law for which it is sufficiently armed under the Companies Act, 2013 itself and hence it cannot be projected as ground for rejection of the appeal. This Tribunal orders the restoration of the name of the Company, M/s Motiram Pharmaceuticals Pvt. Ltd. in the Register of the Companies as maintained by the Registrar of Companies forthwith in order to enable the revenue to exercise its right as against the Company which had been struck off based on the false statements filed before the RoC namely the Respondent herein which vitiates the order dated 15.01.2015 and hence the order is set aside.

Issues Involved:
1. Restoration of the company's name struck off by the Registrar of Companies.
2. Compliance with procedural guidelines for striking off the company's name.
3. Misrepresentation and false information provided by the company's directors.
4. Jurisdiction and rights of the Income Tax Department as an aggrieved party.
5. Legal validity of the striking off order and subsequent actions.

Detailed Analysis:

1. Restoration of the Company's Name Struck Off by the Registrar of Companies:
The appeal was filed under Section 252(1) of the Companies Act, 2013, by the Pr. Commissioner of Income Tax, Delhi-6, seeking the restoration of the name of Motiram Pharmaceutical Pvt. Ltd., struck off by the Registrar of Companies (RoC) on 15.01.2015. The company had applied for striking off through the Fast Track Exit (FTE) Mode, and the name was struck off based on the application filed by the company's director.

2. Compliance with Procedural Guidelines for Striking Off the Company's Name:
The RoC claimed to have followed due diligence by seeking a No Objection Certificate (NOC) from relevant authorities, including the Income Tax Department, before striking off the company's name. However, the notice was sent to the wrong jurisdiction (ITO Ward 22(4) instead of ITO Ward 17(2)), and no PAN number was specified, making it impossible for the Income Tax Department to respond appropriately.

3. Misrepresentation and False Information Provided by the Company's Directors:
The directors of the company filed an affidavit stating no dues towards Income Tax or other authorities, which was later found to be false. The Serious Fraud Investigation Office (SFIO) reported money laundering operations involving the company, which led to reopening the assessment under Section 148 of the Income Tax Act, 1961. The company's directors avoided notices and provided false information, leading to the fraudulent striking off of the company's name.

4. Jurisdiction and Rights of the Income Tax Department as an Aggrieved Party:
The Income Tax Department, as an aggrieved party, sought the restoration of the company's name to proceed with tax assessments. The Tribunal recognized the department as an "aggrieved person" under Section 252(1) of the Companies Act, 2013, allowing them to seek restoration. The appeal was filed within the prescribed three-year period, making it timely and valid.

5. Legal Validity of the Striking Off Order and Subsequent Actions:
The Tribunal found that the striking off was based on false declarations and misrepresentations by the company's directors, supported by certifications from professionals. The order of striking off was vitiated by fraud, necessitating the restoration of the company's name to enable the Income Tax Department to exercise its rights against the company.

Conclusion:
The Tribunal ordered the restoration of the name of Motiram Pharmaceutical Pvt. Ltd. in the Register of Companies maintained by the RoC, setting aside the order dated 15.01.2015. The appeal was allowed, recognizing the fraudulent basis of the striking off and the legitimate interest of the Income Tax Department in pursuing tax assessments. No order as to costs was made.

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