- In M/s Dwarka Portfolio Pvt. Ltd. versus Assistant Commissioner of Income Tax, the Delhi Bench of Income Tax Appellate Tribunal (ITAT) held that if a company files an appeal against an order passed by the revenue department, it will not automatically turn infructuous if it's name is struck off by the Registrar of Companies.
- A Bench comprising Yogesh Kumar U.S. (Judicial Member) and B. R. R. Kumar (Accountant Member), noted that a Certificate of Incorporation cannot be treated as scrapped in relation to the amount due to the Company including the discharge of its liabilities.
- The contention of the assessee M/s Dwarka Portfolio was that the appeal filed by it would be maintainable and the same cannot be denied merely on the ground that the company's name was struck off by the Registrar of Companies.
- The ITAT observed that under the Companies Act, a Company's name can be deleted in two ways; either u/s Section 248(2) if it extinguishes all its liabilities, or u/s 248(1) by the Registrar himself.
- Furthermore, the ITAT also observed that section 248(6) of the Companies Act provides that before passing an order dissolving a company, the Registrar will have to ensure that sufficient provisions have been made for realization of the dues for discharge of the Company's liabilities.
- Lastly, the ITAT noted that u/s 250 of the Companies Act, if a company dissolves u/s 248, it will cease to be a company and the Certificate of Incorporation awarded to it shall be deemed to have been cancelled, unless except for the purpose of realising the amount due to discharge its liabilities.
- The ITAT thus held that both the appeals filed by the struck off Company or the revenue department against the former are maintainable.
- Accordingly, the ITAT directed the appeal to be listed before the regular Bench of ITAT for hearing.
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