The court has the power to restore the name of a struck-off company in the register of the Registrar of Companies if proceedings under the Income Tax Act are pending against the company and it has not applied for dormant status under the Companies Act.

ORDER

Per: D. Arvind, Member (Technical) 1. This Court is congregated through hybrid mode. 2. Heard Ld. Counsel on behalf of Income Tax Officer.

3. This is an appeal preferred by Income Tax Officer, Ward 13(1), Kolkata under Section 252(1) of the Companies Act, 2013 for restoration of the name of the company M/s. GANESHVANI COMMOTRADE PRIVATE LIMITED in the register of Registrar of Companies, West Bengal. The name of the respondent company had been struck off on 25.10.2019. 4. Court Notice was issued to the respondent and to the company. Affidavit of service proving service of notice is filed. We are satisfied with proper delivery of notice. However, there is no representation by any of the directors of the struck off company.

5. The appellant contends that the name of the Respondent company had been struck off by the ROC, W.B., in compliance of the provisions under Sec. 248 (5) of the Companies Act, 2013 thereby the name of the respondent company had been removed from the Register of Companies and the said company was dissolved.

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6. The appellant further contends that the proceedings under Section(s) 156 of the Income Tax Act, 1961 are pending for the period of last two (2) immediate preceding financial years and has not made any application within such period for obtaining the status of dormant company under Section 455 of the Companies Act, 2013 against the Company and during the pendency of proceedings, the name of the respondent company had been struck off. Aggrieved by the order of striking off the name of the company, this application was filed by the Income Tax Officer praying for restoration of the respondent company to the register of Registrar of Companies and further to rectify the Master Data by modifying the status from ‘struck off’ to ‘active’.

7. It is discernible that as per paragraph 2 of CBDT letter F. No. 225/423/2017-1TA.II dated 29.12.2017, appeal for restoration of name of the struck off company shall be made by the Income Tax department if;

i.

The proceedings under section 143(3)/144/147/153A/153C set aside cases were already in progress/pending or ii.

Contemplated in future against the company, iii.

Departmental appeals initiated were pending;

iv.

Penalty proceedings already initiated were pending;

v.

Prosecution proceedings were initiated launched.

8. It is submitted that the respondent company has not paid income tax dues for the period of last two (2) immediate preceding financial years and has not made any application within such period for obtaining the status of dormant company under ________________________________________________________________________________________________________ Section 455 of the Companies Act, 2013 amounting to Rs. 19,63,64,576/- and the recovery proceedings u/s. 156 is pending against the respondent company and that the respondent company has committed serious violation of provisions of Income Tax Act rendering the entity liable to consequences as per the Income Tax Act. The restoration of the Company to take the pending proceedings to a logical conclusion.

9. Notices were issued to the respondents. ROC, W.B. has filed his report submitting that it has no objection to the application being allowed.

10. Upon hearing the arguments advanced on the side of the appellant and the Ld. ROC, West Bengal, and also in terms of the CBDT circular (supra), we are satisfied that the name of the respondent company is required to be restored to the Register of Companies since proceedings under the Income Tax Act, 1961 are said to be pending for the period of last two (2) immediate preceding financial years and has not made any application within such period for obtaining the status of dormant company under Section 455 of the Companies Act, 2013 against the Company.

In these circumstances, if name of the company is not restored it would cause great prejudice to the appellant and loss of Revenue to the