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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI PRASHANT MAHARISHI, AM & SHRI RAHUL CHAUDHARY, JM
O R D E R PER BENCH:
A.Y. 2008-09 and ITA 01. No.2253/Mum/2023 for A.Y. 2009-10, filed by the income tax officer, 2(3)(1), Mumbai, against the appellate order passed by the National Faceless Appeal Centre, Delhi for both these assessment years separately on 20th April, 2023, wherein the appeal filed by the assessee against the assessment orders dated 29th February, 2016, passed under Section 147 read with section 144 of the Income- tax Act, 1961 (the Act) by the income tax officer, Ward 2(3), Mumbai are allowed for the reason that the
The learned Authorized Representative relied upon the orders of the co-ordinate Bench in assessee‟s own case on identical facts and circumstances for A.Y. 2011-12 and for earlier years i.e. A.Y. 2007-08.
On careful consideration of the facts and rival contention, we find that the above appellant entity is not in existence since 18th March, 2011, as per the certificate issued by the Registrar of Companies, Maharashtra, Mumbai as its name has been struck off under Section 560 (5) of the Companies Act, 1986, in easy exist Scheme, 2010. The co-ordinate Benches in assessee‟s own case in ITA no. “560. Power of Registrar to strike defunct company off register.--- (1) Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation.
(2) If the Registrar does not within one month of sending the letter receive any answer thereto, he shall, within fourteen days after the expiry of the month, send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received and that, if an answer is not received to the second letter within one month from the date thereof, a notice will be published in the Official Gazette with a view to striking the name of the company off the register.
(3) If the Registrar either receives an answer from the company to the effect that it is not carrying on business or in operation, or does not within one month after sending the second letter receive any answer, he may publish in the Official Gazette, and send to the company by registered post, a notice that, at the expiration of three months from the date of that notice, the name of the company (4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company have been completely wound up, and any returns required to be made by the liquidator have not been made for a period of six consecutive months, the Registrar shall publish in the Official Gazette and send to the company or the liquidator, if any, a like notice as is provided in sub- section (3).
(5) At the expiry of the time mentioned in the notice referred to in subsection (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, manager or other officer who was exercising any power or management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved ; and (6) If a company, or any member or creditor thereof, feels aggrieved by the company having been struck off the register, the Tribunal, on an application made by the company, member or creditor before the expiry of twenty years from the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register ; and the Tribunal may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.
(7) Upon a certified copy of the order under sub- section (6) being delivered to the Registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off.
(8) A letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or if no office has been registered, to the care of some director, manager or other (9) A notice to be sent under this section to a liquidator may be addressed to the liquidator at his own place of business.”
From a reading of Section 560 of the Companies Act, it clearly transpires that after the requisite procedure prescribed under Subsections (1) to (4) is followed and the time mentioned in the notice referred to in Subsections 3 or 4 expires, the Registrar may strike off the name of the company concerned from the Register of Companies. If it does so, it shall publish a notice thereof in the Official Gazette and on publication of the notice in the Official Gazette, the company shall stand dissolved. However, proviso to Subsection (5) of Section 560 further provides that notwithstanding dissolution of the company, liability of every director, 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. Proviso (b) further provides that nothing provided in Subsection (5) in respect of dissolution of company whose name has been struck off from the Register,
The provisions of Subsection (6), if read carefully, would indicate that if a company or any member or creditor of the company feels aggrieved by the decision of the Registrar to strike off registration of the company, it can move an application before the Court before the expiry of twenty years from the publication in the Official Gazette of the notice under Subsection (5) and if the Court is satisfied that the company was, at the time of striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register, it may order the name of the company to be restored to the register. The Court may also order such directions and make such provision as may be seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.
In terms of Subsection (7), once a certified copy of the order passed under Subsection (6) is delivered to the Registrar of Companies for registration, the dissolved company shall be deemed to have continued in existence as if its name had not been struck off.
On careful circumspection of Section 560 of the Companies Act, we clearly find that striking off
Similarly, under Section 226(3) of the Income Tax Act, it is clearly provided that if there is any tax due from the struck off company, same can be recovered from any person who holds or may subsequently hold money for or on account of the assessee company. Section 226(3) of the Income Tax Act is also relevant for the purpose of discussion we have undertaken and the same is reproduced herein below:- “226. Other modes of recovery (1) …………….
(2) …………….
(ii) A notice under this sub-section may be issued to any person who holds or may subsequently hold any money for or on account of the assessee jointly with any other person and for the purposes of sub- section, the shares of the joint-holders in such account shall be presumed, until the contrary is proved, to be equal.
(iii) A copy of the notice shall be forwarded to the assessee at his last address known to the Income-tax Officer, and in the case of a joint account to all the joint-holders at (iv) Save as otherwise provided in this sub- section, every person to whom a notice is issued under this sub-section shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like being made before payment is made, notwithstanding any rule, practice or requirement to the contrary.
(v) Any claim respecting any property in relation to which a notice under this sub- section has been issued arising after the date of the notice shall be void as against any demand contained in the notice.
(vi) Where a person to whom a notice under this subsection is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this sub-section shall be deemed to require such person to (vii) The Income-tax Officer may, at any time or from time to time, amend or revoke any notice issued under this sub-section or extend the time for making any payment in pursuance of such notice.
(viii) The Income-tax Officer shall grant a receipt for any amount paid in compliance with a notice issued under this sub-section, and the person so paying shall be fully discharged from his liability to the assessee to the extent of the amount so paid.
(ix) Any person discharging any liability to the assessee after receipt of a notice under this sub-section shall be personally liable to the Income-tax Officer to the extent of his own liability to the assessee so discharged or to the extent of the assessee's liability for any sum due under this Act, whichever is less.
Section 179 of the Income Tax Act also assumes importance in the point we are discussing and stipulates that if the tax due from a private company in respect of any income of previous year become unrecoverable against the company for any reason, then every person who was a director of the private company at any time during the relevant previous year shall be jointly and severally liable for the payment of such tax unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company. Section 179 of the Income Tax Act reads thus:-
“179. Liability of directors of private company liquidation.— (1) [Notwithstanding in (2) Where a private company is converted into a public company and the tax assessed in respect of any income of any previous year during which such company was a private company cannot be recovered, then, nothing contained in sub-section (1) shall apply to any person who was a director of such private company in relation to any tax due in respect of any income of such private company assessable for any assessment year commencing before the 1st day of April, 1962.”
The aforesaid discussion would lead us to a conclusion that in the instant case any director of the company could have filed an appeal challenging the assessment order on the ground that the liability arising out of the impugned assessment order, under the circumstances pointed out in Section 179 of the Income Tax Act, could be fastened upon him. Interestingly, all proceedings, in the first appeal before the Commissioner Income Tax (Appeals) and second appeal before the Tribunal were filed in the name of the company suing through its director Jeane Fernades.
The discussion so far made by us would now lead us to the determination of the substantial question of law framed in this appeal. Although, it is not in dispute that the appellant company never brought the notification published in Government Gazette issued in respect of the company under Section 560(5) of the Companies Act to the notice of the assessing authority, Commissioner of Income Tax (Appeals) and the Tribunal and, as such, all the three authorities aforesaid committed no illegality in law in coming to the conclusion that merely because the company is defunct, the assessing authority cannot be restrained from passing the assessment order against it. The authorities have concurrently held that there is distinction between the company which is rendered defunct because of stoppage of operations of the company and the company which is formally struck off and dissolved in terms of Subsection (5) of Section 560 of the Companies Act. We, however, cannot lose sight of the fact that on the date of passing of the assessment order, the company stood struck off from the Register and formally dissolved on the publication of the notice in the Official Gazette.
It is true that the appellant-director, who was apprehending that the liability for the tax due for the previous year assessed by the assessing
21. Be that as it may, now it has come to light that on the date the assessment order was passed, the appellant-company stood dissolved under Section 560(5) of the Companies Act and, therefore, could not have been assessed. In terms of Section 143 of the Income Tax Act, assessment can be made by the assessing authority only against the assessee, who has filed a return under Section 139 of the Income Tax Act or in response to a notice issued under Subsection (1) of Section 142 of the Income Tax Act. The term “assessee” is defined in Subsection (7) of Section 2 of the Income Tax Act to mean that a person by whom any tax or any other sum of money is payable under the Income Tax Act
From a reading of Sub-section (7) along with Subsection 31 of Section 2 of the Income Tax Act, it becomes abundantly clear that the assessee to be assessed for income tax under Section 143 of the Income Tax Act must be a person in existence. Indisputably, a company is a juridical person but the moment it is struck off from the Register of Companies and is dissolved, it ceases to exist. Making of an assessment order against a non- existent company would be like passing a decree by a civil court against a dead person. Such order of assessment made against a non-existent entity would be nullity and would not give rise to any right or liability under such assessment order. The view we have taken is supported by a judgment of the High Court of Delhi dated 17.09.2009 passed in titled Commissioner of Income Tax v. Vived Marketing Servicing Pvt. Ltd. One paragraph judgment rendered by the Delhi High Court has upheld the decision of ITAT in Impsat Pvt. Ltd. v. ITO
“When the Assessing officer passed the order of assessment against the respondent company, it had already been dissolved and struck off the register of the Registrar of companies under Section 560 of the Companies Act. In these circumstances, the Tribunal rightly held that there could not have been any assessment order passed against the company which was not in existence as on that date in the eyes of law it had already been dissolved. The Tribunal relied upon its earlier decision in Impsat Pvt. Ltd. v. ITA 276 ITR 136 (AT). We are of the opinion that the view taken by the Tribunal is perfectly valid and in accordance with law. No substantial question of law arises. Dismissed.”
The relevant observations of the ITAT Delhi Bench in Impsat (P) Ltd. v. Income Tax Officer are also worth taking note of and are, thus, set out below:-
“17. A reference to page 1901 of A. Ramaiya‟s commentary on the Companies Act, 1956 (12th Edition) by Hon‟ble Justice Y.V. Chandrachud (former Chief Justice of India) shows the following extract from “Effecting of dissolution”.
“The dissolution puts an end to the existence of the company. Unless and until it has been set aside, it prevents any proceedings being taken against promoters, directors or officers of the company to recover money or property due or belonging to it or to prove a debt due from it. When the company is dissolved, the liquidator‟s statutory duty towards the creditors and contributories is gone; but, if he has committed a breach of his duty to any creditor by distributing the assets without complying with the requirements of the Companies Act, 1948, he is liable in damages to him.”
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That takes us to the next question regarding the validity of an assessment on a non-existent person. It is a nullity. Reference may be made to the judgments of the Supreme Court in Amarchand N. Shroff’s case (supra) and ITA v. Ram Prasad [1972] 86 ITR 145. These are cases of an individual and a joint We have already noted the judgment of the Supreme Court in Hari Prasad Jayantilal‟s case (supra) as to the effect of dissolution and the treatise of A. Ramaiya on Company Law in this behalf. If the company is not in existence at the time of making the assessment, no order of assessment can be validly passed upon it under the Income Tax Act and if one is passed, it must be a nullity.”
We, thus, answer the question by holding that once a company is dissolved under Section 560(5) of the Companies Act, it ceases to exist and, therefore, no order of assessment could be validly passed against it under the Income Tax Act and if it is passed, it would be a nullity. Having answered the aforesaid question, we allow the appeal and set aside the order of assessment dated 21.12.2006, order of the Commissioner of Income Tax (Appeals), Jammu dated 01.04.2013 and the order of the Tribunal dated 30.01.2014.”
Therefore respectfully following decision of coordinate benches in assessee‟s own case as well as the decision of Honourable J & K High court, Both the assessment orders passed in the name of non existing company are not sustainable and correctly quashed by ld CIT (A). Thus, orders of the ld CIT (A) are upheld for both the years.
7. Accordingly, both the appeals filed by the learned Assessing Officer are dismissed.
Order pronounced in the open court on 08.12.2023.