Dismissal of appeal by the High Court without keeping in view the relevant provisions is not legally sustainable.

1.Leave has been granted in this appeal.

2.The appeal is filed against the final judgment and order dated 09.08.2016 passed by the High Court of Judicature for Rajasthan at Jaipur in DBITA No.53 of 2000. The High Court had dismissed the appeal filed by the appellant as having become infructuous.

3.The appeal involves a short question.

4.The appellant is the Union of India - Income Tax Department, and the respondent is the assessee in the appeal.

5.The appellant filed an appeal under Section 260-A (of Income Tax Act, 1961), 1961 in the High Court of Rajasthan (Jaipur bench) against the order dated 28.04.2000 of the Income Tax Appellate Tribunal (ITAT).

6.The High Court dismissed the appeal as having rendered infructuous, leading to the filing of this appeal in the Supreme Court by the Income Tax Department. The impugned order of the High Court stated that the name of the respondent-assessee company had been struck off from the register under Section 560(5) of the Companies Act, 1956, and therefore, the appeal had become infructuous.

7.The main question in this appeal is whether the High Court was justified in dismissing the appeal on the ground of it being infructuous.

8.The appellant's counsel appeared before the court, but no one appeared for the respondent (assessee).

9.After hearing the arguments and examining the record, the court allows the appeal, sets aside the impugned order, and remands the case to the High Court for a fresh decision on the appeal on its merits in accordance with the law.

10.The impugned order was dismissed by the High Court based on the grounds of it being rendered infructuous due to the striking off of the respondent's name from the register under Section 560(5) of the Companies Act, 1956.

11.The High Court dismissed the appeal on the basis that the respondent company had been dissolved due to an order passed by the Registrar of Companies under Section 560(5) of the Companies Act. According to the High Court, an appeal filed against a dissolved company does not survive for consideration on its merits.

12.However, the Supreme Court finds that the High Court was incorrect in dismissing the appeal as infructuous.

13.The High Court failed to consider Section 560(5) (of Income Tax Act, 1961) proviso (a) of the Companies Act and Chapter XV of the Income Tax Act, which specifically deal with liability in special cases and discontinuance of business or dissolution.

14.These provisions govern the liability of companies whose names have been struck off under Section 560(5) of the Companies Act and outline how their liabilities under the Companies Act and Income Tax Act should be addressed.

15.Since the High Court did not consider these relevant provisions, the impugned order is legally unsustainable and must be set aside.

16.Therefore, the appeal is allowed, the impugned order is set aside, and the case is remanded to the High Court for a fresh decision on the appeal in accordance with the law, taking into account the relevant provisions of the Companies Act and the Income Tax Act. The High Court's decision should not be influenced by any observations made by the Supreme Court on the merits of the case.

17.The Supreme Court refrains from making any observations on the merits of the controversy in this appeal and requests the High Court to decide the appeal within six months, considering its age.

[ABHAY MANOHAR SAPRE]

[DINESH MAHESHWARI]

New Delhi;

March 12, 2019

1. Leave granted.

2. This appeal is filed against the final judgment and order dated 09.08.2016 passed by the High Court of Judicature for Rajasthan at Jaipur in DBITA No.53 of 2000 whereby the High Court dismissed the appeal as having become infructuous filed by the appellant herein.

3. The appeal involves a short question as would be clear from the facts stated infra.

4. The appellant is the Union of India­ Income Tax Department. The respondent is the assessee in the appeal out of which this appeal arises.

5. The appellant herein filed an appeal under Section 260 (of Income Tax Act, 1961)­A of the Income Tax Act, 1961(hereinafter referred to as “the Act”) in the High Court of Rajasthan (Jaipur bench) against the order dated 28.04.2000 of Income Tax Appellate Tribunal (ITAT) in ITA No 226/JP/1999.

6. By impugned order, the High Court dismissed the appeal as having rendered infructuous giving rise to filing of this appeal by way of special leave by

the Income Tax Department in this Court.

The impugned order reads as under:

Ón the last date of hearing when the matter cam 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 sub­-section(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 these change 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.”

7. The short question, which arises for

consideration in this appeal, is whether the High

Court was justified in dismissing the appeal filed by

the Income Tax Department on the ground that it

has rendered infructuous.

8. Mr. A.N.S. Nadkarni, learned ASG appeared for

the appellant. None appeared for the respondent

(assessee) though served.

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.

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 Income Tax Act, 1961) of the

Companies Act, 1956.

11. In other words, the High Court was of the view

that since the respondent­ Company stands

dissolved as a result of the order passed by the

Registrar of the Companies under Section 560(5) (of Income Tax Act, 1961) of

the Companies Act, 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) (of Income Tax Act, 1961)

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".

14. 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 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 and 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.

18. Indeed, having formed an opinion to remand

the case for the reasons mentioned above, we

refrain ourselves from making any observation on

merits of the controversy involved in this appeal.

Since the appeal is quite old, we request the High

Court to decide the appeal preferably within six

months.

[ABHAY MANOHAR SAPRE]

[DINESH MAHESHWARI]

New Delhi;

March 12, 2019