Income-tax Notice for a struck-off company valid if its name is restored by NCLT post-issuance: HC

Case Details: Ravinder Kumar Aggarwal v. ITO - [2023] 146 taxmann.com 205 (Delhi)

Judiciary and Counsel Details

• • Manmohan & Ms Manmeet Pritam Singh Arora, JJ.
  • Yogesh Kumar Jagia, Adv. for the Petitioner.
  • Zoheb Hossain, Vipul Agrawal & Parth Semwal, Advs. for the Respondent.

Facts of the Case

Petitioner was a promoter and director of a private limited company. Said company was struck off by the Registrar of Companies (ROC), Delhi in 2017 due to the defaults in filing the statutory return with ROC.

The Assessing Officer (AO) observed that the company had not filed its return of income for the Assessment Year (AY) 2012-13 despite having a huge amount of income. Thus, AO issued notice for reassessment under section 148.

Subsequently, AO obtained an affidavit from the National Company Law Tribunal (NCLT), wherein the petition for restoration of the name of the company in the Register of Companies was allowed as per section 252 of the Companies Act, 2013.

Since the notice was issued in the name of the struck-off company and subsequent order for restoring the company was obtained after issuing such notice, the petitioner filed a writ petition with the Delhi High Court for quashing the impugned order.

High Court Held

The Delhi High Court emphasized section 252 of the Companies Act, 2013 which states that the company can be restored by the NCLT on application by a person feeling aggrieved by the order of striking off the company’s name. The restoration will be given effect as if the name was never struck off. Therefore, even on the date of issuing notice, although not restored, the company will be deemed to be in existence.

In the instant case, ROC struck off the company’s name as it defaulted in its statutory filings but was restored by NCLT upon realizing that it was prejudicial to the interest of the Income-tax Department. Since the name was restored to enable the Income-tax department to recover its dues, notice under section 148 issued in name of the company before its restoration was valid and justified.

List of Cases Reviewed

• • CIT v. Gopal Shri Scrips (P.) Ltd. [2019] 104 taxmann.com 192/262 Taxman 356 (SC)/[2020] 7 SCC 654
  • Shrikishen Dhoot v. S. D. Kamlapurkur 1964 SCC OnLine AP 145
  • Commissioner of Wealth Tax v. Sharvan Kumar Swarup & Sons [1994] 76 Taxman 620/210 ITR 886/122 CTR 380 (SC)/[1994] 6 SCC 623
  • First Additional Income-tax Officer v. Mrs Suseela Sadanandan [1965] 57 ITR 168 (SC) (para 18.1) distinguished.

List of Cases Referred to

• • CIT v. Gopal Shri Scrips (P.) Ltd. [2019] 104 taxmann.com 192/262 Taxman 356 (SC)/[2020] 7 SCC 654 (para 7)
  • Shrikishen Dhoot v. S. D. Kamlapurkur 1964 SCC OnLine AP 145 (para 18)
  • Commissioner of Wealth Tax v. Sharvan Kumar Swarup & Sons [1994] 76 Taxman 620/210 ITR 886/122 CTR 380 (SC)/[1994] 6 SCC 623 (para 18)
  • First Additional Income-tax Officer v. Mrs Suseela Sadanandan [1965] 57 ITR 168 (SC) (para 18).