F.No.278/M-52/2003-ITJ(Pt.)
Government of India
Ministry of Finance
(Department of Revenue)
Central Board of Direct Taxes
***
New Delhi, the 4th April, 2018
To,
All Pr. Chief Commissioners of Income Tax,
Subject : Representation before the benches of National Company Law Tribunal (NCLT) – reg.
Reference : This Office letter in F.No.278/M-52/2003-ITJ(Pt.) date 08.11.2017 (copy enclosed)
Sir/ Madam,
Kindly refer to the above.
2. Vide letter under reference above, the Board had issued directions stating that the task of representing before NCLT must be immediately assigned to Counsels out of the existing empaneled Senior Standing Counsels in your region. For a PCCIT region where the NCLT bench is not situated in the region, the concerned PCCIT was directed to ensure representation by coordinating with the PCCIT in whose jurisdiction the NCLT bench is located. This assumes importance in view of the fact that in case of many NCLT benches, a single bench covers the territorial jurisdiction of more than one Pr.CCIT region. It was further stated that if there is no Senior Standing Counsel for any region, Junior counsels may be requested to represent the cases before NCLT.
3. Vide letter under reference above, it was also stated that in case there is a requirement of empaneling Senior Standing Counsels in the region in view of the pendency before NCLT, a proposal may be sent to the Board in accordance with Board Instruction 7/2016 date 07.09.2016 read with letter F.No.279/Misc/M-77/2011-ITJ(Part-3) date 17.10.2017. No such proposals have been received from any region till date indicating that there is no paucity of counsels for representation before NCLT.
4. In view of the above, the undersigned is directed to request you to intimate the name(s) of the Standing counsel(s) who have been nominated by you to appear before the NCLT. You are also requested to furnish the total number of cases pending before NCLT in respect of your region and the number of cases involving appeal filed before NCLT for revival of ‘struck off’ companies as explained in letter in F.No. 225 /423/2017-ITAJI date 29.12.2017 (copy enclosed for reference). The reply may be sent at cit.a.cbdt@incometax.gov.in latest by 10.04.2018. This may kindly be treated as urgent.
5. This issues with the approval of Member(A&J), C.B.D.T.
Yours faithfully,
Encl: As above
(Smriti Bharadwaj)
DCIT (OSD)-ITJ-II
Telephone No. 268826637
Copy to:-
Data Base Cell with a request to upload on irsofficersonline
F.No.278/M-52/2003-ITJ(Pt.)
Government of India
Ministry of Finance
(Department of Revenue)
Central Board of Direct Taxes
***
New Delhi, the 8th November, 2017
To,
All Pr. Chief Commissioners of Income Tax,
Subject:- Issue regarding representation before the benches of National Company Law. Tribunal(NCLT) – reg.
Sir/ Madam,
Kindly refer to the above.
2. On June 01, 2016, the Ministry of Corporate Affairs(MCA) published a notification regarding the constitution of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal(NCLAT). The setting up of the NCLT and NCLAT are part of the efforts to move to a regime of faster resolution of corporate disputes and to pave way for the faster implementation of the bankruptcy code. Under the new “Insolvency and Bankruptcy Code” 2016, 11 Benches of NCLT at New Delhi (Principal and Delhi Bench), Ahmedabad, Allahabad, Bengaluru, Chandigarh, Chennai, Guwahati, Hyderabad, Kolkata and Mumbai have been established. Further, an appellate body, NCLAT, with Pan- India Jurisdiction has also been established at Delhi.
3. It has come to notice, that many cases are going unrepresented before NCLT and for which, recently the President of NCLT, Hon’ble Justice Shri M. M. Kumar has also expressed his displeasure.
4. Kindly find enclosed the list of NCLT benches detailing the territorial jurisdiction of the said benches. It is seen that for many benches a single NCLT bench is covering the territorial jurisdiction of more than one PrCCIT region.
5. Since cases are going unrepresented before NCLT, the task of representing before NCLT may be immediately assigned to Counsels out of the existing empanelled Senior Standing Counsels in your region. In case of a PCCIT region where the NCLT bench is not situated in the region, the said PCCIT will ensure representation before NCLT by coordinating with the PCCIT in whose jurisdiction the NCLT bench is situated. It may further be noted, that if there is no Senior Standing Counsel for any region, Junior Counsels may be requested to represent the cases before NCLT. Further, the requirement of empaneling Senior Standing Counsels in the region may be examined vis-a vis pendency before NCLT and if required, a proposal for the same may be sent to the Board, in accordance with the Board’s Instruction No. 7/2016 dated 7.9.2016 read with letter F.No.279/Misc/M-77/2011-1TJ(Part-3) dated 17.10.2017. (copy enclosed)
6. The PCCIT in whose jurisdiction the NCLT bench is situated shall obtain details of pending Income tax matters, from the registry of NCLT Bench forthwith and keep updating the same to ensure that such cases do not go unrepresented. Such details of pending cases obtained by the PCCIT where the bench is situated, shall be communicated to other PCCIT regions, covered by the said bench to ensure representation.
7. A Compliance Report in this regard may be sent to the Board by 20/11/2017.
This issues with the approval of Member(A&J), C.B.D.T.
Yours faithfully,
Encl: As above
(Aashwita Lal)
DCIT(OSD)-ITJ-II
Telephone No. 26882637
Copy to:-
Data Base Cell with a request to upload on irsofficersonline.
URGENT
F.No. 279/Misc/ M-77/2011-ITJ(Part-3)
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
New Delhi, the 17th October,2017
Room No. 276, Hotel Samrat,
Kautilya Marg, New Delhi-110021
To
All Principal Chief Commissioners of Income Tax
Subject: Representation of Ministry of Law as Justice in the Screening Committee – reg
Madam/Sir,
Special Public Prosecutors and Jr/Sr Standing Counsels to represent the Income Tax Department are being engaged/appointed as per Instruction Nos 6/2016 867/2016 dated 07.09.2016 respectively. Instruction No 6/2016 for the empanelment of SPPs was amended vide Modification dated 20.02.2017 with respect to representation of MOLJ in Screening Committee in Delhi, Mumbai, Chennai, Kolkata and Bangalore. Instruction No.7/2016 regarding empanelment of Jr/Sr Standing Counsels already had that provision.
2. M/o Law & Justice has however repeatedly been requesting that a Joint Secretary level officer from MOLJ shall be requested to be part of the Screening Committee in each and every zone. Necessary modification in the aforementioned instructions in this regard is under consideration in the Board at present.
3. In view of the above it is requested that representation of M/o Law & Justice in all the Screening Committees proposed to be constituted, may be
4. This issues with the approval of Member (A&J).
Yours faithfully
(Aashwita Lal)
DCIT/OSD(Judl.II)
Tele: 26882637
Copy to:
The Database Cell with a request to upload it on irsofficersonline.gov.in
F.No. 225/423/2017-ITA.II
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
North Block, New Delhi, the 29th of December, 2017
To
All Principal Chief-Commissioners of Income-tax/Principal Directors-General of Income-tax
Sir/Madam,
Subject: Filing of references for restoration of ‘struck off’ companies under Companies Act, 2013-regd.
During this financial year, a large number of companies have been ‘struck off’ from the register of companies under section 248(5) of the Companies Act, 2013. As per section 248 of the Companies Act, 2013, the ‘strike off of a company from the register of companies does not apply as far as payment/discharge of liabilities or obligations of the company is concerned. Therefore, right of the revenue to recover arrear demand is not affected in any manner whatsoever in case of ‘struck off companies. However, pursuant to being ‘struck off from the register, these companies have ceased to exist leading to uncertainty regarding various other proceedings which were already underway under the Income-tax Act, 1961 in case of these companies.
2. On consideration of the matter, Board has decided that request/appeal for restoration of name of the ‘struck off company with retrospective date from the date of being ‘struck off shall be made by the income-tax department in following situations:
i. where proceedings under section 143(3)/144/147/153A/153C/set-aside cases were already in progress; or
ii. where proceedings under section 143(3)/144/147/153A/153C are contemplated in near future; or
iii. where Departmental Appeals were pending; or
iv. where Penalty proceedings already initiated were pending; or
v. where Prosecution proceedings were initiated /launched.
3. While filing a request/appeal, it should be duly emphasized that restoration is being requested to protect the legitimate interests of revenue. It may also be emphasized that the concerned company had apparently committed serious violations of provisions of Income-tax Act rendering the entity liable to consequences as per the Income-tax Act and restoration of the company in the register of companies would enable the Income-tax Department to take the pending proceedings to a logical conclusion. In the request/appeal, it may also be emphasized that since some of the pending proceedings are of time-barring nature, the matter may be taken up most urgently. The Department should request revival of the ‘struck off’ company from the date of ‘strike off’.
4. In this regard, in course of sixth meeting of the Task Force on Shell Companies set up by the PM0 on 30th November, 2017, a suggestion was made by DGCoA that IT Department may approach the Registrar of Companies (RoC) for taking up the matter of revival of these companies before the National Company Law Tribunal (NCLT). It was also suggested that protection of interest of revenue would be a strong ground in favor of such a restoration. Accordingly, it has been decided that Assessing Officers on a case to case basis shall immediately make a reference to the respective regional RoCs for revival of ‘stuck off’ companies in situations mentioned in para 2 above. A format of letter is enclosed as Annexure for this purpose.
5. As an alternative, jurisdictional Income-tax authorities on a case to case basis shall also file an appeal before the NCLT for revival of ‘struck off’ company immediately. The legal provisions for restoration/revival of ‘struck off’ company are given in section(s) 248 to 252 of the Companies Act, 2013 read with Rule 87A of the NCLT (Amendment) Rules, 2017 and the Companies (Removal of Name of Companies from the Register of Companies) Rules, 2016. The Department should request revival of the ‘struck off’ company from the date of ‘strike off’.
Enclosure: as above
(Rohit Garg)
Director (ITA.II), CBDT
Copy to:-
1. PS to Secretary (Revenue)
2. Chairman, CBDT & All Members, CBDT
3. All Joint Secretaries/CsIT, CBDT
4. Joint Secretary, Min. of Corporate Affairs
5. JCIT (Database Cell) for uploading on departmental website
(Rohit Garg)
Director- ITA.II, CBDT
Annexure
To
RoC
……………………..
……………………..
Subject: Request for revival of companies ‘struck off by the MCA where income-tax proceedings are pending/contemplated-regd.-
Kind reference is invited to the above.
2. Some of the companies ‘struck off by the MCA recently are assessed with the undersigned. Certain income-tax proceedings are/were pending in the case of these companies as per the details below:
| S.No. | Name of Company/Companies | PAN No. | CIN | Proceedings pending/contemplated u/s | Assessment Year |
3. In view of the fact that the above mentioned companies have been ‘struck off, the fate of pending proceedings in these cases have become uncertain. Whereas interest of revenue is involved in above mentioned pending proceedings, it is requested that RoC may take up the issue of revival of these companies from the date of ‘striking off before the NCLT u/s 252 of the.Companies Act.
4. Kindly treat this as most urgent.
Yours faithfully,
(Assessing Officer)
