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TMI Blog2022 (11) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... t order passed by the NCLT restoring the Company, will not have the effect of curing the defect issuance of notice to the non-existent entity - Section 252(3) of the Companies Act, 2013 expressly states that the Tribunal s order directing restoration of a company will have the effect of placing the company in the same position as if the name of the company has not been struck off from the register of companies. In other words, with the restoration order passed by the NCLT, even on the date of the issuance of the impugned notice, the Company is deemed to be in existence. Section 250 of Companies Act of 2013 is a new provision and it declares that even where a Company is dissolved in consequence to it being struck off under Section 248, it shall be deemed to continue to be in existence for the purpose of discharging its liabilities. The said section recognizes the continuing liability of a struck off company, which is in addition to Section 248(7) of the Companies Act, 2013, In the present proceedings, the Company has admittedly been restored and as it has been observed above that statutorily upon restoration, the Company under Section 252(3) of the Companies Act, 2013, is dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s initiated by Ministry of Corporate Affairs through the office of ROC, due to the defaults of the Company. 2. The present petition has been filed by the Petitioner seeking quashing of the notice dated 28th March, 2019 (impugned notice), issued under Section 148 of the Income Tax Act, 1961 ( the Act ) for Assessment Year ( AY ) 2012-13 on the ground that the said notice is null and void, as it has been issued in the name of the struck off company. 3. The Respondent has filed its counter affidavit, placing on record the order dated 25th September, 2019, passed by the National Company Law Tribunal, New Delhi ( NCLT ), allowing the petition filed by the Income Tax Department ( the Department ) under Section 252 of the Companies Act, 2013, for restoration of the name of the Company in the register of companies, maintained by the ROC Delhi. Learned Counsel for the Respondent states that since the Company now stands restored, the present writ petition which is premised on the sole ground that the impugned notice was issued in the name of a struck off Company, does not survive any more and the entire petition has become infructuous. 4. He further, on merits, states that though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner s contention that, since the impugned notice was issued on 28th March, 2019 i.e., at a point in time, when the Company was struck off from the ROC, the subsequent order dated 25 th September, 2019, passed by the NCLT restoring the Company, will not have the effect of curing the defect issuance of notice to the non-existent entity; we are of the opinion that the said submission of the learned counsel for the Petitioner is fallacious and is in teeth of Section 252(3) of the Companies Act, 2013 which reads as under:- (3) If a company, or any member or creditor or workmen 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercising any power of management, and of every members of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved. 14. With respect to the liability of a struck off company, it would also be instructive to refer to repealed Section 560 of the Companies Act, 1956, which corresponds to Section 248 of the Companies Act, 2013. The Sub-Section (5) of Section 560 reads as under: - (5) At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette; and on the publication in the Official Gazette of this notice, the company shall stand dissolved: Provided that- (a) the liability, if any, of every director, 1[***] manager or other officer who was exercising any power of management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved; and (b) nothing in this sub-section shall affect the power of the Court to wind up a company the name of which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned counsel for the Petitioner has also sought to place reliance on the following cases: (a) Andhra Pradesh High Court in Shrikishen Dhoot Others V. S. D. Kamlapurkur and others, 1964 SCC OnLine AP 145, (b) Supreme Court in Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup Sons, (1994) 6 SCC 623, (c) Supreme Court in First Additional Income Tax Officer, Kozhikode (Kerala) v. Mrs. Suseela Sadanandan and Another, (1965) 57 ITR 168. 18.1. However, the said decisions are distinguishable in facts inasmuch as, in Shrikishen Dhoot Others (Supra) the Andhra Pradesh High Court has held that a suit is not maintainable against a company which was struck off from the register of companies. However, the Court in the said case has clarified that the existing liability of any director or member prior to the dissolution of the company will continue in spite of the dissolution. 18.2. In Sharvan Kumar Swarup (Supra), the Supreme Court with reference to Rule 1-BB of the Wealth Tax Rules, 1957, has held that the said Rule does not affect or alter the substantive rights and it is merely a procedural provision and therefore, not attracted to all proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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