BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI
COMPANY APPEAL (AT) INSOLVENCY NO. 245 OF 2022
[Under Section 252[1] and/or 252[3] of the companies act,2013]
IN THE MATTER OF :

Income Tax Officer ,Ward 26[3] ,new delhi …APPELLANT

VERSUS
Register of companies ,delhi &Ors
[M/S Vision Realcon Pvt Ltd.] …RESPONDENT

INDEX

SR. NO. PARTICULARS PG. NOS

1 Rejoinder on behalf of the Appellant in response to reply
filed by Respondent No. 3 and 4
2 Vakalatnama
3 Proof of Service

Through
Puneet Rai, Advocate
Senior Standing Counsel
Income Tax Department
D-3/16, LGF Ansari Road,
16 Daryaganj, New Delhi 110002
Phone 9810023745
Email-puneetraiadvocate@gmail.com
 BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
NEW DELHI
COMPANY APPEAL (AT) INSOLVENCY NO. 245 OF 2022
[Under Section 252[1] and/or 252[3] of the companies act,2013]
IN THE MATTER OF :

Income Tax Officer ,Ward 26[3] ,new delhi …APPELLANT

VERSUS
Register of companies ,delhi &Ors
[M/S Vision Realcon Pvt Ltd.] …RESPONDENT
REJOINDER ON BEHALF OF THE APPELLANT

1. That the contents of Para 1 are wrong and hence denied .The appeal has been
filed under companies act,1956
2. That the contents of Para 2 are a matter of record and thus requires no
comments.
3. That the contents of Para 3, 4 and 5 are wrong and hence denied. In this
regard, it is submitted that the present appeal is filed within the time period
with reference to section 252 of companies act which says
[3] If a company, or any member or creditor or workman thereof feels
aggrieved by the company having its name struck off from the register of
companies, the Tribunal on an application made by the company, member,
creditor or workman before the expiry of twenty years from the publication
in the Official Gazette of the notice under sub-section (5) of section 248
may, if satisfied that the company was, at the time of its name being struck
off, carrying on business or in operation or otherwise it is just that the name
of the company be restored to the register of companies, order the name of
the company to be restored to the register of companies, and the Tribunal
may, by the order, give such other directions and make such provisions as
deemed 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 from the register of companies.
That from the above it can be gathered that a company, or any member or
creditor or workman thereof feels aggrieved by the company having its name
struck off from the register of companies, the Tribunal on an application
made by the company, member, creditor or workman before the expiry of
twenty years from the publication
So the income tax department will come under the category of operational
creditor according to the judgement of Income Tax Officer Ward-3(1) Vs.
ROC (M/s. Arora Fincap Ltd.)
So income tax has filed appeal within the time limit
4. That the contents of Para 6 and 7 are a matter of record and thus
requires no comments.
5. That the content of para 8,9 and 10 is wrong as the company shall
not be deemed dissolved as per section 250 of companies act 2013
despite strike off under section 248 the company does not stand
dissolved for the purpose of discharge of obligation of the company
including obligation to file return and comply with statutory notice
and proceeding under income tax act 1961. also in the judgement of
of the Hon’ble Supreme Court passed in the matter of“Commissioner
of Income Tax, Jaipur V. Gopal Shri Scripts, Civil Appeal wherein it
Hon’ble Supreme Court has observed that under Chapter XV of the
In The Income Tax Act, there are separate provisions in respect of
“liability in special cases” and Clause (L) specifically deals with the
provisions of discontinuance of business or dissolution. We are
aware that even under Section 250 of the Companies Act, 2013, a
Company is given an exception from being considered as dissolved
when 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.
From the conjoint reading of Section 250 of the Companies Act 2013
and Chapter XV, Clause (L) of the Income Tax Act, we are of the
view that the Income Tax Department is empowered to assess the tax
liability of a Company even after its dissolution/striking off.

6. That the contention of para 11 and 12 is wrong Insurance

department will be considered as a creditor under section 252[3] of
companies act 2013 thus not time barred .t the present appeal is filed
within the time period with reference to section 252 of companies act
which says
[3] If a company, or any member or creditor or workman thereof feels
aggrieved by the company having its name struck off from the register of
companies, the Tribunal on an application made by the company, member,
creditor or workman before the expiry of twenty years from the publication
in the Official Gazette of the notice under sub-section (5) of section 248
may, if satisfied that the company was, at the time of its name being struck
off, carrying on business or in operation or otherwise it is just that the name
of the company be restored to the register of companies, order the name of
the company to be restored to the register of companies, and the Tribunal
may, by the order, give such other directions and make such provisions as
deemed 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 from the register of companies.
That from the above it can be gathered that a company, or any member or
creditor or workman thereof feels aggrieved by the company having its name
 struck off from the register of companies, the Tribunal on an application
made by the company, member, creditor or workman before the expiry of
twenty years from the publication
So the income tax department will come under the category of operational
creditor according to the judgement of Income Tax Officer Ward-3(1) Vs.
ROC (M/s. Arora Fincap Ltd.)
So income tax has filed appeal within the time limit
7. that the contention of para 13
8. that the contention of para 14

REJOINDER OF APPEAL
1. That the contents of Para 1 and 2 are a matter of record and thus requires no
comments.
2. That the contention of para 3 ,4 , 5 and 7 of reply is wrong as the company
shall not be deemed dissolved as per section 250 of companies act
2013 ,despite strike off under section 248 the company does not stand
dissolved for the purpose of discharge of obligation of the company
including obligation to file return and comply with statutory notice and
proceeding under income tax act 1961. also in the judgement of the Hon’ble
Supreme Court passed in the matter of“Commissioner of Income Tax, Jaipur
V. Gopal Shri Scripts, Civil Appeal wherein it Hon’ble Supreme Court has
observed that under Chapter XV of the In The Income Tax Act, there are
separate provisions in respect of “liability in special cases” and Clause (L)
specifically deals with the provisions of discontinuance of business or
dissolution. We are aware that even under Section 250 of the Companies
Act, 2013, a Company is given an exception from being considered as
dissolved when 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. From the conjoint reading of Section 250 of the Companies Act
2013 and Chapter XV, Clause (L) of the Income Tax Act, we are of the view
that the Income Tax Department is empowered to assess the tax liability of a
Company even after its dissolution/striking off.
thus respondent 3 and 4 hold the position of directors even after the strike
off
3. that the contention of para 6
4. that the contention of para 8 being correct
5. that the contention of para 9 is wrong and hence denied as section 250
clearly states that . 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.
the company clearly does not discharge its duty so it cannot stand dissolved
and the respondent itself is misleading the hon'ble tribunal
6. the contention of para 10 is wrong as income tax will come under the
category of operation credtion as mention in the judgement of M/s. Arora
Fincap Ltd. which says that The Term “Creditor” though not defined
under the Companies Act, 2013, is defined under Section 3 (10) of IBC,
 2016, which reads thus:“3. Definitions. –“creditor” means any person to
whom a debt is owed and includes a financial creditor, an operational
creditor, a secured creditor, an unsecured creditor and a decree-holder.”
Since the Term “Creditor” includes “an Operational Creditor”, we at this
stage, would refer to the definition of “Operational Creditor” as defined
under Section 5(20) of IBC 2016, which reads thus: Definitions. –
operational creditor” means a person to whom an operational debt is owed
and includes any person to whom such debt has been legally assigned or
transferred.” Operational debt” as defined under Section 5(21) of IBC, 2016
which reads thus: Definitions. – (21) “operational debt” means a claim in
respect of the provision of goods or services including employment or a debt
in respect of the payment of dues arising under any law for the time being in
force and payable to the Central Government, any State Government or any
local authority.” (Emphasis supplied) On perusal of the definition of
“Operational Debt”, it can be observed that dues arising under any law for
the time being in force and payable to the Central Government, any State
Government, or any local authority will be covered within the ambit of
Operational Debt. In terms of the above, the dues of the Income Tax
Department arising out of the dues under the Income Tax Act like the case
herein will be covered within the ambit of the Operational Debt. Hence, it
can be concluded that the Income Tax Department is an “Operational
Creditor” under Section 5(20) of the IBC 2016 and would be a “Creditor”
under Section 3 (10) of IBC, 2016.In view of the aforesaid findings, we are
of the considered view that the Income Tax Department is “a Creditor” for
the purpose of filing the present Appeal under Section 252(3) of the
Companies Act 2013, and accordingly, the Appeal is maintainable.

7. para 11
8. that the contention of para 12 is wrong and hence denied as section 252[3]
states that If a company, or any member or creditor or workman thereof feels
aggrieved by the company having its name struck off from the register of
companies, the Tribunal on an application made by the company, member,
creditor or workman before the expiry of twenty years from the publication
in the Official Gazette of the notice under sub-section(5) of section 248 may,
if satisfied that the company was, at the time of its name being struck off,
carrying on business or in operation or otherwise it is just that the name of
the company be restored to the register of companies, order the name of the
company to be restored to the register of companies, and the Tribunal may,
by the order, give such other directions and make such provisions as deemed
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 from
the register of companies.
that income tax department will come in the category of operation creditor
as mentioned in the judgement of Income Tax Officer Ward-3(1) Vs. ROC
(M/s. Arora Fincap Ltd.) so the claim is not time barred
9. that the contention of para 13 is wrong and hence denied as as the company
shall not be deemed dissolved as per section 250 of companies act 2013
despite strike off under section 248 the company does not stand dissolved
for the purpose of discharge of obligation of the company including
obligation to file return and comply with statutory notice and proceeding
under income tax act 1961. also in the judgement of
 of the Hon’ble Supreme Court passed in the matter of“Commissioner
of Income Tax, Jaipur V. Gopal Shri Scripts, Civil Appeal wherein it
Hon’ble Supreme Court has observed that under Chapter XV of the
In The Income Tax Act, there are separate provisions in respect of
“liability in special cases” and Clause (L) specifically deals with the
provisions of discontinuance of business or dissolution. We are
aware that even under Section 250 of the Companies Act, 2013, a
Company is given an exception from being considered as dissolved
when 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.
From the conjoint reading of Section 250 of the Companies Act 2013
and Chapter XV, Clause (L) of the Income Tax Act, we are of the
view that the Income Tax Department is empowered to assess the tax
liability of a Company even after its dissolution/striking off.
thus the notice issues to the company which is in existence for the
purpose of discharging its liabilities
10.That the contention of para 13 [b] is wrong and hence denied as section
252[6] clearly mention that 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
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. d the respondent is misleading the hon'ble tribunal by stating
wrong facts
11.That the contention of para 13 [c ] and [d] is wrong and hence denied as In
this regard, it is submitted that the present appeal is filed within the time
period with reference to section 252 of companies act which says [3] If a
company, or any member or creditor or workman thereof feels aggrieved by
the company having its name struck off from the register of companies, the
Tribunal on an application made by the company, member, creditor or
workman before the expiry of twenty years from the publication in the
Official Gazette of the notice under sub-section (5) of section 248 may, if
satisfied that the company was, at the time of its name being struck off,
carrying on business or in operation or otherwise it is just that the name of
the company be restored to the register of companies, order the name of the
company to be restored to the register of companies, and the Tribunal may,
by the order, give such other directions and make such provisions as deemed
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 from
 the register of companies. That from the above it can be gathered that a
company, or any member or creditor or workman thereof feels aggrieved by
the company having its name struck off from the register of companies, the
Tribunal on an application made by the company, member, creditor or
workman before the expiry of twenty years from the publication So the
income tax department will come under the category of operational creditor
according to the judgement of Income Tax Officer Ward-3(1) Vs. ROC
(M/s. Arora Fincap Ltd.)
So income tax has filed appeal within the time limit
12. para [e]
13.That the contention of para 13 [f] is wrong and hence denied as as per
section 250 of companies act 2013 despite strike off under section 248 the
company does not stand dissolved for the purpose of discharge of obligation
of the company including obligation to file return and comply with statutory
notice and proceeding under income tax act 1961. also in the judgement of
of the Hon’ble Supreme Court passed in the matter of“Commissioner
of Income Tax, Jaipur V. Gopal Shri Scripts, Civil Appeal wherein it
Hon’ble Supreme Court has observed that under Chapter XV of the
In The Income Tax Act, there are separate provisions in respect of
“liability in special cases” and Clause (L) specifically deals with the
provisions of discontinuance of business or dissolution. We are
aware that even under Section 250 of the Companies Act, 2013, a
Company is given an exception from being considered as dissolved
when 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.
From the conjoint reading of Section 250 of the Companies Act 2013
and Chapter XV, Clause (L) of the Income Tax Act, we are of the
view that the Income Tax Department is empowered to assess the tax
liability of a Company even after its dissolution/striking off.
14. para 14
15.that the contention of para 15 , 16 and 17 does not need any reply
16.That the contention of para 18 is wrong and hence denied as it is submitted
that the present appeal is filed within the time period with reference to
section 252 of companies act which says [3] If a company, or any member
or creditor or workman thereof feels aggrieved by the company having its
name struck off from the register of companies, the Tribunal on an
application made by the company, member, creditor or workman before the
expiry of twenty years from the publication in the Official Gazette of the
notice under sub-section (5) of section 248 may, if satisfied that the
company was, at the time of its name being struck off, carrying on business
or in operation or otherwise it is just that the name of the company be
restored to the register of companies, order the name of the company to be
 restored to the register of companies, and the Tribunal may, by the order,
give such other directions and make such provisions as deemed 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 from the
register of companies. That from the above it can be gathered that a
company, or any member or creditor or workman thereof feels aggrieved by
the company having its name struck off from the register of companies, the
Tribunal on an application made by the company, member, creditor or
workman before the expiry of twenty years from the publication So the
income tax department will come under the category of operational creditor
according to the judgement of Income Tax Officer Ward-3(1) Vs. ROC
(M/s. Arora Fincap Ltd.)
So income tax has filed appeal within the time limit
17. para 19

APPELLANT

THROUGH

Puneet Rai, Advocate

Senior Standing Counsel
Income Tax Department
D-3/16, LGF Ansari Road,
16 Daryaganj, New Delhi 110002
Phone 9810023745
Email-puneetraiadvocate@gmail.com