Income Tax Officer vs Registrar Of Companies Delhi

IN THE MATTER OF: Income Tax Officer ...Appellant

Versus

Registrar of Companies Delhi & Ors. ...Respondents

Present: For Appellant : Mr. Gaurav Gupta, SSC, Mr. Shivendra, JSC and Mr. Yojit Pareek, Mr. Surya Jindal, Mr. Aryama Singh Rajput, Advocates. For Respondents : Appearance not marked.

ORDER

(Hybrid Mode)

08.09.2026: The Appellant is before us as against the impugned order

of 05.08.2025, by virtue of which the Appellant's Restoration Application,

being Restoration Application No./28/ND/2025, has been rejected on the

ground of non-compliance with the provisions contained under Rule 105 of

the NCLT Rules, because of the fact that the appellant has failed to take

steps to serve notices on the Respondent on restoration application.

2. When this company appeal was preferred, by an order of 27.01.2026,

it was observed that the notices be issued to the Respondent and the same

was directed to be served through all modes. Since the Respondent was not

Page 1 of 5 served, this Tribunal, by an order of 02.04.2026, had directed the Appellant

to serve the Respondent by substitutive mode of service. In compliance

thereto, the appellant makes a statement at bar that, he has taken steps by

way of publication and, in compliance thereto, he has filed an affidavit of

service. In that eventuality, we will have to proceed on merits on premise

that Respondents have been deemed to be served with the notices.

3. The matter was called repeatedly, but none appears for the

Respondent. Hence, we don't have any other option except to proceed to

decide the company appeals on its own merits.

4. The fact that emerges from the records is that the proceedings of

Appeal No. 189/252/ND/2024 was taken up before the Ld. NCLT, Delhi, on

06.05.2025 and the same was dismissed because of non-appearance of the

Appellant, observed in the order dated 06.05.2025. The order dated

06.05.2025 is extracted here under:-

"None appeared on behalf of the Appellant on 21.01.2025. Appellant appeared through Mobile phone on 11.03.2025 which is not permitted as per the direction issued by the NCLT and also mentioned in the Cause List. However, despite of the above said direction, today again, Ld. Counsel for the Appellant is present through Mobile Phone. In view of this conduct of the appellant of non-appearance through prescribed mode, the present appeal i.e. Appeal No. 189/252/ND/2024 stands dismissed for non-prosecution."

5. Although, the order itself observes that the Appellant took a stand

that they did made attempted to participate in the proceedings through

online, but that was not accepted by the Ld. Tribunal, seeking recall of the

Page 2 of 5 order 06.05.2025, the Appellant has filed a Restoration Application on

04.06.2025 praying thereof that, owing to the grounds that have been

narrated by the Appellant, particularly that as contained in Para 3 of the of

the application, being Restoration Application No./28/ND/2025 seeking

recall of the order dated 06.05.2025.

6. When this application ie Restoration Application No. 28/ND/2025

came up for consideration before the Ld. Tribunal, the Ld. Tribunal had

initially issued notices on the restoration application, to the Respondents,

but it seems that there had been some failure on the part of the Appellant to

take steps to serve notice on the Respondents on the restoration application,

which has attracted the implications contained under Rule 108 of the NCLT

Rules, resulting into the dismissal of the Restoration Application

/28/ND/2025, observing thereof that since the Appellant has failed to take

steps, hence, it was observed the application would stand rejected due to the

non- compliance of the order dated 30.06.2025 directing issuance of notice

to the Respondent on the Restoration Application. The provisions of Rule 108

of the NCLT Rules reads as under:

"108. Consequence of failure to take steps for issue of fresh notice.--Where, after a summon has been issued to the other side, and returned unserved, and the applicant or petitioner or appellant, as the case may be, fails to take necessary steps within a period as ordered by the Tribunal from the date of return of the notice on the respondent, the Registrar shall post the case before the Bench for further directions or for dismissal for non-prosecution."

Page 3 of 5 7. If the implications and the purpose of Rule 108, is taken into

consideration, it is not to be utilized as a weapon to curb the litigation or to

restrict a party for seeking redressal of its grievance as against the impugned

order, rather at that point of time when the Appellant has failed to take steps

on the Restoration Application, a pragmatic view ought to have been adopted

by the Ld. Tribunal for dispensation of justice, to ensure to Appellant to take,

by giving them yet another opportunity to take steps for serving the

respondent, rather than attracting the provisions contained under Rule 108

of the NCLT Rules for dismissing the Restoration Application. If the reasons

for the absence of 06.05.2025 are taken into consideration, the reason for

dismissal was it is not that the Appellant was not participating in the

proceedings, but it was observed that his participation, as observed was not,

as per the reckoned mode of participation in accordance with the guidelines

issued by the NCLT, as observed in the impugned order.

8. If the Appellant was participating in the proceedings on 06.05.2025,

may be by a mode which was not reckoned under law, as observed under the

order dated 06.05.2025, that cannot be a reason to dismiss the proceeding

for want of prosecution. Hence, recall that was sought of the order of

06.05.2025 should have been reasonably considered by the Ld. Tribunal,

while pragmatically considering the implications of Rule 108 of the rules, the

Appellants failing to take steps to serve the Respondents on the Restoration

Application. Taking an overall consideration of the matter, and particularly

from the perspective that the efforts are to be made to ensure that the matter

Page 4 of 5 is decided on merits rather than in the absence of any of the parties to the

proceedings, without letting them an opportunity to substantiate their case

on merits before the Ld. Tribunal, we feel that the order dated 05.08.2025

deserves to be quashed. The Restoration Application No /28/ND/2025 was

required to be considered by the Ld. Tribunal, NCLT, on its own merits.

9. Considering the reasons for absence of the Appellant on 06.05.2025,

the impugned order dated 05.08.2025 would stand quashed. The Restoration

Application No./28/ND/2025 is restored to its original number which is

directed to be reasonably considered by Tribunal on its own merits, in the

light of observations that have been made by us, as to the reason for

dismissing the application for want of prosecution. Subject to the aforesaid,

the company appeal would stand allowed. The Tribunal is requested to

consider the Restoration Application itself as expeditiously as possible, but

not later than one month from the date of production of the certified copy of

this order.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Arun Baroka] Member (Technical)

[Indevar Pandey] Member (Technical) MT/Beena

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