GAUNGOUR SUPPLIERS PVT. LTD.,KOLKATA vs. I.T.O., WARD - 10(2), KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, KOLKATA BEFORE SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER AND SHRI RAKESH MISHRA, ACCOUNTANT MEMBER ITA No.272/KOL/2026 Assessment Year: 2012-13

Gaungour Suppliers Pvt. Ltd. Vs. ITO Ward-10(2), Kolkata 8B, Mahesh Chowhury Lane, Bhawanipur, Kolkata-700025 [PAN: AADCG6785A] APPELLANT RESPONDENT Appellant by : Shri Abhijit Ghosal, AR Respondent by : Shri Sumit Purkaystha, Sr. DR Date of hearing : 13.08.2026 Date of Pronouncement : 20.08.2026 O R D E R PER YOGESH KUMAR U.S., JUDICIAL MEMBER: This Appeal is filed by the Assessee against the order of the NFAC, Delhi (‘Ld. CIT(A)’ for short) dated 07.06.2024, passed u/s 250 of the Income Tax Act, 1961 (“the Act”, for short) for the Assessment Year 2012-13. 2. There is a delay of 509 days in filing the captioned Appeal. The Assessee Represented by its (ex) Director filed an application along with affidavit for condonation of delay narrating the reasons which are reproduced as under: -

“1. That I am one of the Ex-Director in Gaungour Suppliers Pvt. Ltd. having its registered office at 8B, Mahesh Chowdhury Lane, Bhawanipur, Kolkata-700025.

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 2. That I have started to look after Income Tax related issues for and on behalf of the above named Pvt. Ltd. company, Gaungour Suppliers Pvt. Ltd. 3. That it was beyond my knowledge that the appellate order has been passed and served on the mail. 4. That the above-mentioned office was not opened nearly two years. 5. That this delay in filing 2nd Appeal before your Honourable Member, ITAT, Kolkata Benches, Kolkata is due to the reasons stated above. 6. That the above-mentioned statement is true to the best of my knowledge and belief.” 3. The Ld. AR reiterating the averments made in the Application, sought for condoning the delay in filing the captioned Appeal.

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 6. Brief facts of the case are that, Assessee Company has not filed its return of income for the assessment year 2012-13. Based on the information received from the office of the DDIT(INV), Unit-2(1), Ahmedabad, that the Assessee company had received fund worth Rs.46,44,410/- during the year for which the nature and source of fund in the hands of the payer remained unexplained. A notice u/s 148 of the Act came to be issued to the Assessee Company. The representative of the Assessee company participated in the assessment proceedings and furnished written submission contending that the Assessee company has been struck off from the Registrar of Companies with effect from 29.08.2015 and the Assessee had surrendered the PAN card to the Department, thus sought for dropping the proceedings u/s 147 of the Act.

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 Shri Scrips Private Limited 2019(3) TMI 70 (SC) and also the order of the Co-ordinate Bench of the Tribunal at Delhi Bench in the case of M/s Dwarka Portfolio Private Limited in ITA No.2563/DEL/2017. As against the Order of the Ld. CIT(A) dated 07.06.2024, Assessee preferred the present Appeal on the following Grounds of Appeal:

“1. For that the Ld. CIT(A), NFAC, Delhi has erred in law as well as on facts of the case by passing order u/s 250 of the I.T. Act, 1961 dated 07/06/2024 dismissing the appeal filed by the appellant and thereby confirming the addition of Rs.46,44,410/- made by the Assessing Officer on the ground of unexplained cash credit which is not correct as the appellant company was struck off from the Registrar of Companies w.e.f. 29/08/2015. Assessment was completed by the Assessing Officer making the above mentioned addition on a struck off company and that addition has been blindly and illogically supported by the Ld. CIT(A) which is not correct, bias as well as detrimental to natural justice. 2. For that the observations and contentions of the Ld. CIT(A), NFAC, Delhi dismissing the appeal filed by the appellant on the grounds which are not correct, proper and based on mis-interpretation of facts.” 8. The Learned Counsel for the Assessee vehemently submitted that Assessee company has been struck off on 29.08.2015 itself and the Assessee had surrendered the PAN card to the Department, therefore, the assessment proceedings initiated by the Assessing Officer for the assessment year 2012-13 is illegal and the Assessment Order dated 17.12.2018 passed against the struck off company is deserves to be quashed. Further submitted that the Ld. CIT(A) committed error in dismissing the Appeal of the Assessee, thus, sought for allowing the Appeal.

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 9. Per contra, the Ld. DR vehemently submitted that the assessment proceedings cannot be stalled merely on the ground of struck off of the Assessee company by the Registrar of Companies, the Department is duty bound to determine the actual tax dues to the exchequer and recover the same as per the provisions of Income Tax Act. The Ld. DR has also relied on the Judgment of the Hon’ble Supreme Court in the case of Commissioner of Income Tax Vs. Gopal Shri Scrips Private Limited 2019(3) TMI 70 (SC) and the order of the Co-ordinate Bench of the Tribunal of Delhi Bench in the case of M/s Dwarka Portfolio Private Limited (supra). Thus, sought for dismissal of the Appeal.

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 the Assessment Order observed that Assessee has taken accommodation entry of Rs.46,44,410/- during the Financial Year 2011-12 relevant to Assessment Year 2012-13 from M/s Jalaram Finvest Limited, the amount was transferred from the bank account maintained with Tamilnadu Mercantile Bank Limited. It was further found by the Assessing Officer that the said M/s Jalaram Finvest Limited had been controlled and managed by Shri Dahyalal Thakkar. Further, it was also emerged as a result of investigation that the said company was engaged in providing accommodation entries against commission and the assessee company received funds worth Rs.46,44,410/- from M/s Jalaram Finvest Limited. Accordingly, the Assessing Officer made addition of Rs.46,44,410/- which has been sustained by the Ld. CIT(A).

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 companies or not? Before answering the said question, as to whether an Assessment Order can be framed against struck off/non-est Company, we have to examine as to whether a first Appeal can be filed before the CIT(A) or the second Appeal before the Tribunal by the struck off Company or not.

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 “5. We have heard the parties, verified the materials on record and gave our thoughtful consideration. It is not in dispute that, the assessee Company has been struck off on 08/03/2019 from the Registrar of the Companies u/s 248(1) of the Companies Act. 6. There are two types of striking off Companies under the said Act. Strike off by the Registrar of Companies u/s 248(1) of the Companies Act and strike off by a Company its own u/s 248(2) of the Companies Act. Section 248(1) of Companies Act:- “248. (1) Where the Registrar has reasonable cause to believe that— (a) a company has failed to commence its business within one year of its incorporation 1[or]; (b) 2[***] (c) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under section 455; or [(d) the subscribers to the memorandum have not paid the subscription which they had undertaken to pay at the time of incorporation of a company and a declaration to this effect has not been filed within one hundred and eighty days of its incorporation under sub-section (1) of section 10A; or (e) the company is not carrying on any business or operations, as revealed after the physical verification carried out under sub- section (9) of section 12.] he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. (2) Without prejudice to the provisions of sub-section (1), a company may, after extinguishing all its liabilities, by a special resolution or consent of seventy-five per cent. members in terms of paid-up share capital, file an application in the prescribed manner to the Registrar for removing the name of the company from the register of companies on all or any of the grounds specified in sub-section (1) and the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner:

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 Provided that in the case of a company regulated under a special Act, approval of the regulatory body constituted or established under that Act shall also be obtained and enclosed with the application. The Section 248(2) will be invoked by the Company itself after extinguishing all its liabilities (including tax liabilities, if any). 7. The Companies can itself struck off under Section 248(2) of the Companies Act by its own only after ‘extinguishing all the liabilities’ (including the tax liabilities if any). But in the case of Company being struck off by the Registrar under Section 248(1) of the Companies Act, irrespective of existence of assets or the liabilities of the Company, the company will be stricken off if the Company commits any defaults mentioned in the Section 248(1) of the Act. 8. As per Section 248 (5) of the companies Act, the registrar of the Company shall publish notice of strike off the names of the companies in the official Gazette and on such publication, the company shall be dissolved. As perSection 248(6) of the companies Act, before passing an order under Section 248 (5) of the companies Act, the Registrar shall satisfy that sufficient provision has been made for realization of the dues and also for discharge of its liabilities of the companies. Further, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies. As per sub-section (7) of the Section 248 of the Companies Act, the liability if any, of every director, manager or other officer who was exercising any power of the management and of every member of the company dissolved under sub Section (5) of Section 248 of the Companies Act. 248. (1) Where the Registrar has reasonable cause to believe that— (2) ………………. (3) ………………. (4) ………………. (5) At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, 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. (6) The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or Page | 9

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company: Provided that notwithstanding the undertakings referred to in this sub- section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies. (7) The liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved. (8) Nothing in this section shall affect the power of the Tribunal to wind up a company the name of which has been struck off from the register of companies 9. When the Company is being struck off, there will be certain consequences. The Section 250 of the Companies Act deals with effect of Company notified as dissolved. Section 250 of the Companies Act “250. Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub- section (5) of that section cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.” Thus, if the Company being struck off, the same shall be ceased to operate as a company and the Certificate of Incorporation issued to it shall deem to have been cancelled from the such date except for the purpose of realizing the amount due to the Company and for the purpose of payment or discharge of liabilities or obligation of the Company. 10. Thus, Combined reading of Section 250 and the sub-Sections (6) and (7) of Section 248 of the Companies Act, once the Company is struck off, it shall be deemed to have been cancelled from such date except for the purpose of realizing the amount due to the Company and for the payment or discharge ofthe liabilities or obligation of the Company. Further, even after striking off of a Company, the liability if any of the Director, Manager or other Officers, exercising any power of

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 management and of every member of the Company shall continue and may be enforced as if the Company had not been dissolved. 11. As per sub-section (6) of the Section 248 of the Companies Act, it is the duty of the Registrar to make provision for discharging the liability of the company before passing an order for struck off under sub-section (5) to Section 248 Companies Act. If there is any tax due from the struck off company, the Department can invoke Section 226(3) of the Income Tax Act for satisfying such tax demands. Section 226(3) of the Income Tax Act: “(3) (i) The Assessing Officer or Tax Recovery Officer] may, at any time or from time to time, by notice in writing require any personfrom whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee , to pay to the Assessing Officer or Tax Recovery Officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount. (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 andfor the purposes of this sub- section, the shares of the joint holders in such account shall be presumed, until the contrary is proved, to be equal. (iii) ……… ………………. ……………. (x)……………….. 12. Further, as per Section 179 of Income Tax Act, if the tax due from Private company in respect of any income of any previous year cannot be recovered, 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 taxes unless he proves that non-recovery cannot be attributed to any gross neglect misfeasance or breach of duty on his part in relation of the Company. Section 179 of Income tax Act reads as follows:-

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 179. (1) Notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), where any tax due from a private company in respect of any income of any previous year or from any other company in respect of any income of any previous year during which such other company was a private company cannot be recovered, 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 nonrecovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company. (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 duein respect of any income of such private company assessable for any assessment year commencing before the 1st day of April, 1962. Explanation.—For the purposes of this section, the expression “tax due” includes penalty, interest or any other sum payable under the Act.” 13. When it comes to recovery of tax due from the struck off Company, the Department of Revenue has power either to invoke Section 226(3) of the Income Tax Act or can invoke Section 179 of the Income Tax Act and recover from the Directors after testing whether non recovery is attributed to any gross neglect misfeasance or breach of duty on the part of Directors. The Department can also invoke both 226(3) and 179 simultaneously for which there is no bar. 14. Now, the moot question arises as to ‘whether the Tribunal can proceed with the appeal filed by the struck down Company or filed by the Revenue against the struck off Company?’. In other words, whether the struck off Company can be treated as alive/operative/existing for the purpose of adjudication of the tax arrears and the consequence order by which the recovery proceedings are triggered by the Revenue. 15. If the proceedings pending before the Court or the Tribunal (regarding determination of quantum the tax/liability of paying the tax) is dismissed for having become in-fructuous without adjudicating the actual tax dues or the liability of the assessee to pay such tax in the manner known to the Law and based on the such dismissal of the proceedings, if the Revenue proceeds for the recovery of the ‘such tax due’, the rights of the Directors of the Company will be seriously jeopardy and the same will amount to denial of the rights guaranteed under the Law.

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 16. In the instant Appeal, if we allow the request of the Revenue dismiss the Appeal as in-fructuous, one hand the appeal will be dismissed having become in-fructuous on the other hand, the Revenue Department will initiate proceedings under Section 179 of the Income Tax Act and that too without even adjudicating in the manner prescribed under Law on the ‘quantum of actual tax due’ or ‘liability to pay tax’, in such even great in justice will be caused, which cannot be permitted. 17. When the Revenue Department has not forgone the right to recover tax due or Written-off the demand on the ground of Company being struck off by the ROC, the right of the assessee to determine the tax liability in due process of law cannot be denied by dismissing the Appeal pending before us. 18. Further, in a case where the CIT(A) deletes the addition made by the A.O and if Revenue files Appeal before the Tribunal, even in a case where the Revenue is having a water tight case on merit, by dismissing the Appeal for having become in-fructuous will also result in non- adjudication of the actual tax due by the assessee and the Revenue cannot recover the actual tax dues from the assessee. In such events, the Department of Revenue will be left with no remedy, which is contrary to the root principal of law ‘Ubi Jus Ibi Remedium’. 19. The Hon’ble Apex Court while dealing with amalgamated Companies in the case of Pr. Commissioner of Income Tax Vs. Mahagun Realtors Pvt. Ltd., held that, ‘whether corporate death of an entity upon amalgamation per se invalidates a tax assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case. Further it restored the matter to the file of the ITAT and directed to decide the matter on merit. The relevant portion is as under:- 42. Before concluding, this Court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case. 43. In view of the foregoing discussion and having regard to the facts of this case, this court is of the considered view, that the impugned order of the High Court cannot be sustained; it is set aside. Since the appeal of the revenue against the order of the CIT was not heard on merits, the matter is restored to the file of ITAT, which shall proceed to hear the parties on the merits of the appeal- as well as the cross objections, on issues, other than the Page | 13

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 nullity of the assessment order, on merits. The appeal is allowed, in the above terms, without order on costs.”(emphasis supplied) 20. The Hon’ble High Court of Judicature for Rajasthan in the case of Commissioner of Income Tax Vs. Gopal Shri Scrips Pvt. Ltd. in ITA No. 53/2000 vide order dated 09/08/2016 dismissed the appeal filed by the Revenue for having become in-fructuous since the Company had been struck off from the register of ROC and the said Company dissolved. The operative portion of the Hon’ble High Court is as under:- “On the last date of hearing when the matter came up before the Court on 05.07.2016, counsel for the appellant was directed to seek instructions about the present status of the Respondent assessee (Company) whether it is in existence or has become non-operational or defunct by passage of time. Sh. Anuroop Singhi, Adv., appearing for the appellant has placed for our perusal a communication issued from the office of Registrar of Companies dated 07.04.2011 indicating that pursuant to subsection(5) of Section 560 of the Companies Act, 1956 the name of Gopal Shri Scrips Pvt. Ltd., has been struck off from the register and the said company is dissolved. In the light of the communication placed for our perusal dated 07.04.2011, no purpose is going to be served in examining the substantial question of law which has been raised for consideration in the instant appeal and on account of thesechange in circumstances, the present appeal has become infructuous and accordingly stands dismissed. However, the appellant is still at liberty to file application if any occasion arises in future.” 21. The said order of Hon’ble High Court of Judicature for Rajasthan dated 09/08/2016 in ITA No. 53/2000 has been challenged by the Revenue Department before the Hon’ble Supreme court of India in Civil Appeal No. 2922/2019 (CIT Jaipur Vs. M/s. Gopal Scrips Pvt. Ltd.). The Hon’ble Apex Court vide order dated 12/03/2019 held that, the High Court was wrong in dismissing the appeal as having rendered infructuous and further directed to decide the appeal afresh on merit in accordance with law in view of the relevant provisions of Companies Act and Income Tax Act. The relevant portions are hereunder: “9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company the respondent assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956. 11. In other words, the High Court was of the view that since the respondentCompany stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 the Companies Act (5) of, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits. 12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous. 13. The High Court failed to notice Section 560(5) the Companies Act proviso (a) of and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution". 14. The aforementioned two provisions, namely, one under the Companies Act Act and the other under the Income Tax specifically deal with the cases of the Companies, whose name has been struck off under Section 560 (5) of the Companies Act. 15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act under the Income Tax Act is required to be dealt with. 16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside. 17. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside. The case is remanded to the High Court for deciding the appeal afresh on merits in accordance with law keeping in view the relevant provisions of Companies Act and the Income tax Act uninfluenced by any observations made by us on merits. 22. The Hon’ble Supreme Court in the case of M/s. Gopal Scrips Pvt. Ltd (supra) while allowing the Civil Appeal of the Revenue, dealt and relied on Section 560(5) of the Companies Act, 1956 and held that the Appeal filed by the Revenue is maintainable. The identical provisions have been introduced in the Companies Act, 2013 in Sub-Section sub- Sections (6) and (7) of Section 248 of the Companies Act. Therefore, the Page | 15

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 ratio laid down in the case of Gopal Scrips Pvt. Ltd (supra) is squarely applicable to the issue in hand. 23. In the case of M/s. Gopal Scrips Pvt. Ltd (supra), the Department of Revenue was having grievance on the Order of the Hon’ble High Court of Judicature for Rajasthan in dismissing the Appeal (ITA) for having become in fructuous on the ground that the Assessee company was struck off. The Hon’ble Supreme Court has set aside the Order of the Hon’ble High Court of Judicature for Rajasthan and directed to decide the Appeal on merit. Ironically now the very same Department of revenue is seeking before us to dismiss the present Appeal as in- fructuous since the assessee company has been struck off. The Department cannot have such double standard. 24. CONCLUSION: (i). Though the Assessee company has been struck off under Section 248 of the Companies Act 2013, in view of sub-sections (6) and (7) of Section 248 and Section 250 of companies Act 2013, the Certificate of Incorporation issued to the Assessee company cannot be treated as cancelled for the purpose of realizing the amount due to the company and for payment or discharge of the liability or obligations of the company, we are of the opinion that the Appeal filed by the struck off Assessee Company or Appeal filed by the Revenue against the struck off Company are maintainable. Therefore by rejecting the contention of the Ld. DR, we hold that the present Appeal filed by the Assessee (struck-off company) is maintainable and the same has to be decided on merit. (ii). Since, we held that, the present Appeal is maintainable, the Counsel appearing on behalf of the Assessee Company has every locus to represent the Assessee in the present Appeal. (iii). Office is directed to list the appeal before the regular Bench for hearing on 07/09/2022.” 14. The Hon'ble Delhi High Court in the case of Ravinder Kumar Agarwal Vs. ITO reported in [2023] 146 taxmann.com 205 (Delhi) held that where a Company is dissolved in consequence to its name being struck off under section 248 of Companies Act, 2013, it shall be deemed to continue to be in existence for purpose of discharging its liabilities, therefore, where NCLT upon realizing that detriment was

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 caused to interest of income-tax department due to striking off, restored company to enable Department to recover its dues, impugned notice under section 148 of Act , issued in name of Company before its restoration was justified. The relevant portion of the Judgment of Hon'ble Delhi High Court is reproduced as under:-

“11. The said provision 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 dated 25th September, 2019 passed by the NCLT, even on the date of the issuance of the impugned notice, the Company is deemed to be in existence. The relevant extract of the NCLT order directing the ROC to restore the name of Company in the register of companies is as under: "12. The petition is therefore allowed. The RoC is therefore directed to restore the name of the Respondent Company in the Register and also proceed to take such other and further penal action against the respondents in accordance with the statutory provisions." 12. In this regard, it would also be relevant to refer to Section 250 of the Companies Act, 2013, which reads as under: - "250. Effect of company notified as dissolved.-Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company." (Emphasis Supplied) 13. 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, which reads as under: "248. Power of Registrar to remove name of company from register of companies. - (1) XXX XXX XXX (7) The liability, if any, of every director, manager or other officer who was exercising 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." Page | 17

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 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 been struck off the register." 15. Clause (a) of the Proviso to Sub-Section (5) of Section 560 came up for consideration before the Supreme Court in Gopal Shri Scrips (Supra), where in similar circumstances a company had been struck off and, on that basis, the High Court had dismissed the appeal filed by the Income Tax Department on the ground that the appeal is not maintainable since the Company stands dissolved. The Supreme Court reversed the order of the High Court and observed as under: - "10*. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its Clause (L) which deals with "discontinuance of business or dissolution". The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the companies, whose name has been struck off under Section 506(5) of the Companies Act. These provisions provide as to how and in what manner the liability against such company arising under the Companies Act and under the Income Tax Act is required to be dealt with. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside." 16. It is pertinent to observe that in the judgment of Gopal Shri Scrips (Supra), there was no order restoring the Company and it remained to be non-existent, being struck off. Despite the said fact, the Supreme Court, after referring to proviso (a) to Sub-section (5) of Section 560 of the Companies Act, 1956 and Chapter XV of the Act of 1961, held that the High Court was wrong in dismissing the appeal filed against such a struck off Company and remanded the matter to decide the appeal on merits. Page | 18

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 17. 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 deemed to not have been struck off from the register of companies at all. Accordingly, the impugned notice dated 28th March, 2019, is valid and not non-est on the grounds urged in the present petition. 18. 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 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 proceedings pending at its enactment. 18.3. In Mrs. Suseela Sadanandan (Supra), the Supreme Court, was considering the issue of continuation of proceedings against the legal representative of one deceased Mr. S. P. Sadanandan. The Supreme Court, however, in this case remanded the matter back to High Court to determine who was the Legal Representative of the estate of deceased Assessee. 18.4. We fail to consider how the aforesaid judgment are applicable to the facts of present case. 19. Before parting, we may also note that the Petitioner herein was a Respondent in the appeal filed by the Income Tax department before the NCLT, for restoration of the Company. A perusal of the order dated 25th September, 2019 passed by the NCLT goes on to show that the Petitioner herein objected to the said appeal filed by the Department and opposed the restoration of the Company. The NCLT however, rejected the submissions of the Petitioner herein and held as under:- "8. Upon notice being issued, respondents 3 and 4 appeared and filed their reply impugning the demand stating that the assessment order was against a dead company and therefore the appellant is merely seeking to legalise its act which is contrary to the provisions of law. The Page | 19

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 assessments made against a struck off company are nonest. The respondent have raised other points also challenging the notice and impugning it in Writ Petition (Civil) 7122/2019 filed before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi has taken note of the fact that the name of the company has been struck off, and directed the appellant to continue the assessment proceedings, but not pass the final order until further directions. The respondent's have further submitted that they have accounted for all funds received by them. 9. Keeping in view the submission made, the appellant has justified the grounds on which it seeks restoration of the name of the company so as to proceed further. It is equally expedient for the respondent company to seek its restoration as they wish to contest the claim made by the appellant before any judicial forum." 20. It would be relevant to note that the Company was initially struck off by the Ministry of Corporate Affairs due to its default in filing its statutory return with the ROC and the Company was, therefore, struck off due to its own defaults. The NCLT upon realizing that the detriment caused to the interest of the Income Tax department due to the striking off, restored the Company to enable the Department to recover its dues. However, the conduct of the Petitioner in persisting with the present petition even after the Company has been restored and also his action in opposing the appeal before the NCLT for restoration evidences that the petitioner is abusing the process of law to obstruct the assessment proceedings. The resort to present petition by the Petitioner herein is therefore, not bona fide and is being done to avoid legal processes. We, accordingly, dismiss the present petition with costs and vacate the stay/interim order.” 15. In view of the above, though the Company has been struck off, it shall be deemed to continue to be in existence for purpose of discharging its liabilities, therefore, the Assessment framed by the Assessing Officer against the Assessee cannot be termed as illegal or framed against non-est entity. Accordingly, we find no merits in the submission of the Assessee, accordingly, Ground No.1 of the Assessee is dismissed. 16. In the present case, Assessee has not appeared before the Ld. CIT(A) in the first Appeal filed by the Company represented by its Former Director. Since we have held that the Assessing Officer can Page | 20

ITA No.272/Kol/2026 Gaungour Suppliers Private Limited; A.Y: 2012-13 frame assessment on strike off companies, we remand the matter to the file of the Ld. CIT(A) with a direction to the Assessee to make or compliance and file necessary documents in support of its claim and the Ld. CIT(A) is directed to decide the issue on merits in accordance with law. Needless to say, the Assessee shall be provided with opportunity of being heard. Accordingly, Ground No.2 of the Assessee is partly allowed for statistical purposes.

Order pronounced on 20.08.2026. Sd/- Sd/- (RAKESH MISHRA) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 20.08.2026 DP, PS Copy of the order forwarded to: 1. Appellant 2. Respondent 3. Pr. CIT 4. CIT(A) 5. CIT(DR) //TRUE COPY// (MANISH BHOI) DEPUTY REGISTRAR KOLKATA BENCHES, KOLKATA