ORDER

[Per; Justice Rakesh Kumar Jain (JM)] 12.04.2023 M/s. Viking Ship Managers Private Limited (for short ‘The Company’) was incorporated on 18.05.2005, with the Registrar of Companies, Mumbai under the provisions of the Companies Act, 1956 (‘Act of 1956’) and is engaged in the business of Ship Brokering, Transport, Storage and Communication. The Company ran into losses and ceased its operations in the Year 2013 and also stopped filing Income Tax Returns. Since, the Company was not carrying on any business or was in operation for a period of two years immediately preceding the Financial Year 2017, the RoC (for short ‘Registrar’) issued a Public Notice in Form STK-5 dated 28.06.2017 to remove/strike off the name of the Company from the Register maintained by Company Appeal (AT) No. 95 of 2021 2 of 10 it. The said notice was published in the Gazette of India on 08.07.2017 and ultimately the name of the Company was struck off by an Order which was published in the Gazette of India on 06.08.2017. At the time when the name of the Company was struck off, it was being assessed to Income Tax under the Income Tax Act, 1961 (for short the ‘Act of 1961’). According to the Department of Income Tax, the assessment proceeding against the Company were pending for which the Assessing Officer issued a Notice dated 26.03.2018 under Section 148 of the Act of 1961 pertaining to the Assessment Year 2011-12. On this premise, the Income Tax Department (Respondent No.

2) filed an Appeal under Section 252 of the Companies Act, 2013 (‘The Act’) for restoration of the name of the Company on the Register of Companies maintained by the Registrar. The said Appeal was initially allowed on 11.11.2019 by the Tribunal and the name was restored but on an Appeal filed by the Appellant (‘Director of the Company’) bearing Comp. App. (AT) No.121/2020 before this Tribunal under Section 421 of the Act, the Order dated 11.11.2019 was set aside and the matter was remanded back to the Tribunal to decide the same again after hearing the Parties.

2. After the remand, the Tribunal has again passed the Order of Restoration on 07.05.2021, inter alia, on the ground that the Income Tax Officer has already passed the Order of Assessment which has in fact been passed on 24.12.2018 much earlier than the Impugned Order was passed. Although, it has not been specifically mentioned in the Impugned Order that the name of the Company has been restored in order to secure the dues of the Company Appeal (AT) No. 95 of 2021 3 of 10 Income Tax Department but it seems that this was the only reason for restoring the name of the Company to the Register of the Registrar against the wishes of the Company.

3. Aggrieved against the Order dated 07.05.2021, the present Appeal has been preferred under Section 421 of the Act.

4. Counsel for the Appellant has submitted that the Tribunal has erred in not taking into consideration various provisions of the Act of 1961 as well as of the Act as per which dues, if any, of the Income Tax Department are otherwise secured for which there is no need to restore the name of the Company on the Register of the Registrar as the Company is not doing any business from the last so many years and has the assets of a meagre amount of Rs.3,68,365/- as per the Income Tax Return filed for the Assessment Year 2012-2013 which has been produced before us during the course of hearing.

5. He has further submitted that the Order of Assessment dated 24.12.2018 has already been challenged by the Appellant by way of a statutory Appeal under the Act of 1961 which is pending adjudication.

6. It is further argued that in case of recovery in future, based upon the Order of Assessment dated 24.12.2018, the amount to be recovered by the Income Tax Department is fully secu