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TMI Blog2019 (8) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... be countenanced. Same is true about the plea of Revenue being a Creditor within the meaning of Section 252(3) of the Companies Act, 2013, when admittedly it had not raised any demand or passed any assessment order prior to passing of the order of striking off the Company from the Register of Companies by ROC. Striking off the Company which was a Private Company, from the Register of Companies, indisputably does not absolve its erstwhile Directors who are liable as provided under Section 179 of the Income Tax Act, 1961 to pay the amount of Tax leviable in respect of income of any previous year. Why, in presence of such mechanism within the legal framework available to Revenue, insistence is on restoration of Company without laying any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the issue raised in this appeal may briefly be noticed. The Company was incorporated on 20th February, 2007 under Companies Act, 1956 (hereinafter referred to as the Act ) with its registered office situated at Dilshad Garden, Delhi. Respondents No. 2 and 3 respectively named Mr. Hem Prakash Sharma and Mr. Jitendra Sharma were the last Directors of the Company. On 18th July, 2011, the Company applied for striking off its name under Fast Track Exit Scheme, 2011 , which was processed by the Respondent No. 1 Registrar of Companies, Delhi (for short ROC ) in terms of guidelines issued by the Ministry of Corporate Affairs vide Circular No. 36/2011 dated 7th June, 2011. ROC issued notice to the Company as contemplated under Section 560(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment being ₹ 6,04,280/- was specifically disclosed in the appeal memo. It is further submitted that the Company, despite having taxable income, failed to abide by the mandatory requirement of filing its return of income or loss for the previous year. It is further submitted that under the FTE Guidelines Circular no benefit was admissible to the Company on account of its pending dues towards the Revenue. It is submitted that the Company made misrepresentation before ROC in regard to furnishing of return of income and payment of Tax. It is further submitted that the Company was operating at the relevant time and has received income from undisclosed sources. However, the Revenue was not made privy to the proceedings before the ROC and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of striking off the name of company was treated as final. A cursory look at the Guidelines would reveal that a company, inter-alia, having dues towards Income Tax would not come within the purview of FTE. Procedure for being observed by ROC in dealing with applications under FTE was also laid down in the Guidelines which envisaged giving a 30 days notice to the company by email as also putting the names of applicants on the MCA Portal giving 30 days time to the stakeholders to raise any objection which included the Income Tax Department. Under these Guidelines, it was immediately after passing of the notice period and on being satisfied that the case was in order that ROC was required to strike off the name of the company from its Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther requirements under the Guidelines. It was therefore incumbent upon the Revenue, in the first instance to lay proof before the Tribunal or even before this Appellate Tribunal that the Company was possessed of assets besides having liabilities. Unfortunately, the Revenue has not even made any feeble attempt at disclosing any details of the assets, movable and immovable, that the Company possessed and liability, if any, on the material date. Liability to pay Income Tax would necessarily depend on assets besides trade and business activity culminating in profit or loss. The proof in regard to possession of assets by the Company and owing of any liabilities by it as also in regard to factum of any income from legitimate sources assessable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 179 of the Income Tax Act, 1961 to pay the amount of Tax leviable in respect of income of any previous year. Why, in presence of such mechanism within the legal framework available to Revenue, insistence is on restoration of Company without laying any proof of its being possessed of any assets and liabilities and without any evidence of the Company being in operation, is a question that can be best answered, though has not been answered by the Revenue. We refrain from making any comment on this question lest the same prejudices the Revenue. 9. For the foregoing reasons, we are not inclined to interfere with the impugned order, which does not appear to be legally infirm or unsustainable. The appeal is dismissed leaving the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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