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TMI Blog2018 (9) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k off based on incorrect information and that the respondent had without any proper enquiry as required to be made under the guidelines framed for availing the FTE Mode being the guidelines as per Circular No.36/2011 dated 7.6.2011 wherein the Income Tax Authorities or any other Central Government authority or State Government Department is required to be intimated in order to ascertain whether any amount is involved or due or pending from the company; (iv) That in the meanwhile, information had been received from the Office of Director, Serious Fraud Investigating Office(SFIO), Ministry of Corporate Affairs regarding the money laundering operation adopted by certain persons namely Jain Brothers through mostly companies/entities which had provided accommodation entries to various beneficiaries in the guise of share capital/share premium with the help of various mediators and in relation to the same the company in question being one, while taking accommodation entries amounting to ₹ 49.00 lakhs during the financial year 2009-2010 through two paper companies managed and operated by Jain Brothers. Thus having received information from SFIO coming under the Ministry of Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny and since the Directors of the company have failed to file reply to the notice and in the said circumstances the Appellant has approached this Tribunal by way of this Appeal seeking for the restoration of the name of the company in the register of companies of the respondent, as the company being an assessee under the Income Tax Act, 1961 and amenable to the jurisdiction of the Appellant, by quashing the order dated 15.1.2015 of the respondent which removed the name of the assessee company from the register. 4. Upon notice of the appeal to the respondent RoC, a reply has been filed by the respondent. Perusal of the said reply shows that the company was incorporated on 12.1.2009 under the provisions of Companies Act, 1956 and had its registered office at Plot No.51, 1st Floor, Block B, Nehru Vihar, New Delhi-110054 and the authorized share capital of the company was ₹ 10,00,000/- as per the information provided in Form FTE-2011 and the paid up capital of the company was ₹ 1,00,000/- and that no annual return or balance sheet had been filed since its incorporation. Further, it is also stated in the reply that as per the record maintained by RoC, one Mr. Chandan Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since all the documents had been filed as well as certified and thus taking into consideration all the above, the Respondent it is contended is justified in striking off the name of the Company based on the application and the documents accompanying it filed by the Company and its Directors. 6. In any case, it is also contended by the respondent that redressal mechanism is also provided for enforcement of liabilities that may arise in case the Company is dissolved as provided in proviso (a) to Section 560(5) of Companies Act, 1956 and Section 179 of Income Tax Act, 1961 as has been extracted by the appellant itself in the appeal. Presumptive and hypothetical scenarios of protest or denial of responsibility by directors it is contended does not take away such remedy available under law and since the Directors Mr. Chandan Singh Karakoti and Mr.Deepak Singh are the concerned persons who are liable to discharge the dues of the company and against whom under the circumstances proceedings can be initiated for non-compliance. Further in view of the specific remedy available and as the Company having been dissolved, its restoration it is contended by the respondent, if granted, shall op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of seeking for exit under the FTE Mode by the Company. However, none has put in appearance despite the specific directions of this Tribunal. In the circumstances, this Tribunal vide order dated 7.5.2018 directed the appellants to take one more notice to the Director of the Company who had not been served namely, Mr. Deepak Singh and in proof of compliance of directions dated 7.5.2018, a returned cover addressed to the said person has been duly filed before this Tribunal on 23.5.2018 and a perusal of the same shows that it has been again returned by the postal authorities with an endorsement incomplete address . The appellant submitted that in view of sufficient compliance with the directions of this Tribunal, the appeal, it is submitted should be taken up expeditiously as the interest of revenue is concerned in this matter and the revenue will be seriously prejudiced if the same is not taken for disposal as Mr. Deepak Singh, Director is deliberately avoiding the acceptance of notice which was sent to the last known address by the Department as reflected in its records. 8. This Tribunal finally heard the appeal on 23.5.2018 and on the said date the submissions of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant herein, vide order dated 20.3.2017.Further it is also submitted that the order of ITO dated 17.03.2017 and subsequent confirmation or approval on 20.03.2017 also demonstrates that there has been an application of mind by the appellant for re-opening the assessment as made out by the concerned ITO and as sanctioned by the Pr. Commissioner, Income Tax under Section 151 of the Income Tax Act, 1961 and consequently a notice to be issued to the Company in pursuance to the sanction thereof. 9. During the course of the submissions made on behalf of the appellant, attention of this Tribunal is also drawn to the guidelines which have been issued by the Ministry of Corporate Affairs dated 7.6.2011 upon filing and procedure prescribed under the FTE Mode under Section 560 of the Companies Act, 1956 and specific attention of this Tribunal is drawn to paragraph 2 of the said guidelines in relation to the procedure to be adopted by the Registrar of Companies prior to striking off and more particularly to clause(c) of paragraph 2 wherein it is pointed that advance intimation is required to be given to the Income Tax Department by giving 30 days time for objections, if any, of the said Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities or any other local authorities and that the said affidavit have also been dated 11.10.2014 duly notarized by the notary attesting the signatures of the deponents of the said affidavit. It is also submitted that a copy of the PAN cards of the Directors of the Company as well as certificate by the Company Secretary, Mr. Manoj Gupta along with Election ID of the respective Directors had also been enclosed. The said application it is represented is also supported by an indemnity bond, as required to be given by Directors of the Company and which were also furnished and in which the signatures of the respective Directors/persons have also been duly attested by a notary. It is also pointed out that the statement of accounts of the Company has been duly certified by a Chartered Accountant Mr. Yatin Arora having membership No.529771.Further, it is pointed out on behalf of the respondent that a certificate has also been issued as required to be done in the application itself namely by a Company Secretary, in whole time practice in relation to the verification of particulars including attachments contained in the application and of having found them to be true and correct certified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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. (2) A copy of the order passed by the Tribunal shall be filed by the company with the Registrar within thirty days from the date of the order and on receipt of the order, the Registrar shall cause the name of the company to be restored in the register of companies and shall issue a fresh certificate of incorporation. (3) If a company, or any member or creditor or workman 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 ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 252(1) of the Companies Act, 2013 whether Income Tax can be considered as one and the answer to the same can be only a resounding no' as otherwise under the guidelines of 2011 and presently under the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 notice prior to striking off to the income tax would not have been prescribed. 14. In this case, it is seen that an affidavit has been filed by the Company through its Directors in which it is stated by the Directors of the Company that the Company did not owe any liabilities including any tax dues either to the Income Tax or to such other authorities as named therein. However on the contrary, it is seen from the facts averred that in view of the report of the investigation by Serious Fraud Investigation Office (SFIO) based on which the ITO and subsequently the appellant herein have reason to believe that under the given facts and circumstances, income has escaped assessment on the part of the Company due to which a right to proceed upon notice against the company to the appellant to reopen the assessment under Section 148 of the Income Tax Act, 1961 has accrued which stands denied to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation of this, the Respondent has filed Annexure-I to the reply being a communication bearing No.ROC/Nov.l4/560/IT Dept./10286 dated 02.01.2015 addressed to the ITO, O/o the ITO, Ward 22(4)., Room No.225C, CR Building, New Delhi-110002 and that according to the respondent this communication is in compliance with the guidelines formulated by the Ministry of Corporate Affairs to be followed prior to the striking off of the name of the Company dated 7.6.2011 and that in view of sufficient compliances with the procedure as enunciated in paragraph 2(c)of the said guidelines, the respondent having also sent the communication which was addressed on 2.1,2015 to the appellant and the actual striking was done only on 31.1.2015 after giving 30 days time for the Income Tax Department to raise objections, if any which was not availed by it, and hence there cannot be any grievance on this count on the part of the appellant. However, perusal of the said communication addressed by the Respondent and referred to in the earlier part of this order as well dated 2.1.2015 shows that the names of nearly 105 companies have been specified therein and the letter has been addressed in common in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was made by the Ld. Company Prosecutor during the course of his submissions that the communication was sent, as has been consistently sent over a period of time and that the same being in accordance as per the Instructions of the Income Tax Department. Since in relation to the said instructions, no proof has been adduced by the Respondent and in the circumstances/we are unable to consider the same. In this regard, it should be pointed out that an onus is cast upon on the revenue to also act with alacrity upon receipt of notice from the respondent. 19. However, facts as averred and documents filed along with the appeal clearly discloses that the belief of Income Tax in coming to a conclusion that income has escaped assessment arises out of investigation conducted by SFIO and based on communication which had been sent to the revenue from the Office of Director SFIO, Ministry of Corporate Affairs, New Delhi vide letter No.DIR/SIFO/NKSHPL/2016/8719 dated 28.9.2016 addressed to the appellant. The said investigation seems to have been going on since the year 2013 which obviously is prior to striking off the name of the Company in the year 2015 and it is inconceivable as to how the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff of the name of the company from the Register of Companies as passed on 15.01.2015 followed up with the gazette publication on 31.01.2015 and from the facts detailed herein above it is seen that the entire proceeding is thereby vitiated by fraud played by the company and its directors upon the respondent and in the circumstances the order of striking off in itself is required to be set aside, whether it has been passed under the provisions of 1956 Act or 2013 Act thereby resulting in the restoration of the name of the company being Motiram Pharmaceutical Private Ltd in the register of companies maintained by the respondent. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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