Whether appeal before Appellate Authority maintainable for 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 ?

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Whether appeal before Appellate Authority maintainable for 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 ?  

 

An interesting issue arose before the ITAT Delhi as to whether appeal before Appellate Authority maintainable for 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 case details were as under:

M/S DWARKA PORTFOLIO PVT. LTD.

VERSUS

ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-29, NEW DELHI

 AND

SHASTRI BUILDCON PVT. LTD.

 VERSUS DCIT CIRCLE-23 (1)

 NEW DELHI

 AND

 VAVASI TELEGENCE PVT. LTD.

VERSUS

DCIT CIRCLE-17 (1) NEW DELHI-

[ I.T.A. No. 2563/DEL/2017 And I.T.A. No. 2868/DEL/2019 And I.T.A. No. 5338/DEL/2011 :-Dated.- May 27, 2022 ]

In all above cases, Assessee company was struck of and the issue was of recovery of tax due from the struck off Company.

DR submitted since the Assessee Company has been struck off, the Counsel appearing on behalf of the Assessee struck off Assessee Company has no locus standi to represent before the Tribunal.

Whether Appeal cannot be dismissed as ‘not maintainable’ merely on the ground of striking off the Assessee Company by the ROC and insisted to hear and decide the present Appeal on merit?

ITAT held as under:

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.

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.

 

 

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