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Judgment
This appeal is filed by the company, M/s Altus Health Care Private Limited (for brevity the 'Company), along with its Directors under Section
252(1) of the Companies Act, 2013 (for brevity 'the Act') against the order of striking off the name of the company passed by the respondent under
section 248 (1) of the Act read with Rule 7 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 published
on 30.06.2017 vide notification no. ROC-DEL/248(5)/STK-7/2879 by Registrar of Companies, the respondent herein.
The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of
Delhi and Haryana on 21.09.2011 having CIN U74900DL2011PTC225314.
The company is having registered office at 1/25, Third Floor, Near Gurudwara Lalita Park, Laxmi Nagar, Delhi -110092
Authorized issued, subscribed and paid up share capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs. 10/- each.
The main objects of the company are:
i. To carry on the business of importers, exporters, buyers, sellers, contractors, distributors, whole sellers, retailers, agents, brokers, consultants or
dealers in all kinds of machineries, spares, accessories, equipment, components, process, designs, software, hardware, direct or indirect raw material,
stores, packing material for textiles, engineering, technical or any other industry or products, commodity or goods.
And other main objects.
As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements since
incorporation, the name of the company was struck off in terms of provision of Section 248(1) of the Companies Act, 2013 read with Rule 7 and Rule
9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016.
The appellants have submitted that no notice under section 248(1) of the Act in the form of STK-1 was served on Company or any of the directors
or any person on their behalf, before striking of the name of the company.
The appellants have further contended that the Registrar of Companies has not followed the procedure mentioned under section 248(1)(c) of
Companies Act, 2013 which provides ""Where the Registrar has reasonable cause to believe thatâ€" (c) a company is not carrying on any business or
operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a
dormant company under section 455, he shall send a notice to the company and all the directors of the company, of his intention to remove the name
of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any,
within a period of thirty days from the date of the notice.
And also pursuant to section 248(4) of Companies Act, 2013 which provides ""A notice issued under sub-section (1) or sub-section (2) shall be
published in the prescribed manner and also in the Official Gazette for the information of the general public.
And pursuant to Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 which provides ""Manner
of publication of notice-
(1) The notice under sub-section 1 or sub-section 2 of section 248 shall be in Form STK 5 or STK 6, as the case may be, and be-
(i) placed on the official website of the Ministry of Corporate Affairs on a separate link established on such website in this regard;
(ii) published in the Official Gazette;
(iii) published in English language in a leading English newspaper and at least once in vernacular language in a leading vernacular language newspaper,
both having wide circulation in the State in which the registered office of the company is situated.
Provided that in case of any application made under sub-section 2 of section 248 of the Act, the company shall also place the application on its
website, if any, till the disposal of the application.
(2) The Registrar of Companies shall, simultaneously intimate the concerned regulatory authorities regulating the company, viz, the Income-tax
authorities, central excise authorities and service-tax authorities having jurisdiction over the company, about the proposed action of removal or striking
off the names of such companies and seek objections, if any, to be furnished within a period of thirty days from the date of issue of the letter of
intimation and if no objections are received within thirty days from the respective authority, it shall be presumed that they have no objections to the
proposed action of striking off or removal of name.
However, without going into the controversy of the latches in following the due procedure of law by Registrar of Companies before the final act of
striking off the name of the company from the register of companies maintained by Registrar of Companies for non-filing of statutory documents by
company for the relevant period, by Registrar of Companies through publication of notice of on 30.06.2017, the appellant has preferred to prove with
documents and records that the company was in operation and doing business during the period of striking off the name of the company as a better
remedy.
The Appellants have brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copy of Bank Statement of company issued by Indian Bank, as on 23.03.2018, reflecting various transactions done by the company during the
period of striking off.
ii. The copies of financial statements of the company from 31.03.2012 up to 31.03.2017. The Balance Sheet as on 31.03.2017 reflects fixed assets of
Rs. 18,366/- and the company has profit of Rs. 68,670/-
iii. The company has incurred employee benefit expense of Rs. 3,68,672/- for the financial year ending on 31.03.2017.
iv. The copies of Income Tax Returns along with 26 AS filed for the assessment years 2012-13 to 2017-18. The tax paid for assessment year 2017718
is Rs.66,560/-
It is further submitted by the Appellants that the failure to file financial statements and annual returns with the Registrar of Companies, NCT of
Delhi and Haryana was due to inadvertence on part of the management and due to lack of professional guidance and as such there was no wilful or
mala-fide motive behind non-filing of the Financial Statements and Annual returns.
The Registrar of Companies has stated that it has no objection if the name of the Company is restored on proving by the Company that it was
carrying on business or was in operation and the Company be also directed to file financial statements up to date with appropriate filing and additional
fees.
The Income Tax Department has submitted in its report that there is no outstanding demand against the Assesse and has no objection if the
company is considered for revival.
The Section 252(3) contemplates that one of the three conditions are required to be satisfied before exercising jurisdiction to restore company to its
original name on the register of the Registrar of Companies namely:
i. That the company at the time of its name was struck off was carrying on business.
ii. Or it was in operation
iii. Or it is otherwise just that the name of the company be restored on the register.
The Appellants have submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct
company. Thus, taking into consideration the provisions of Section 252(3) of the Companies Act, 2013 which vests this Tribunal with a discretion
where the Company whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when
the name was struck off and also keeping in consideration that it is just to do so can restore the name of the Company in the Register and in the
interest of all stakeholders including the Appellants itself who seeks restoration of the name of the Company in the register maintained by Registrar of
Companies, the company deserved to be restored.
Accordingly, this appeal is allowed. The Public Notice of Registrar of Companies striking the name of the company is set aside. The restoration of
the company's name to the Register of Registrar of Companies is ordered subject to its filing of all outstanding documents with proper filing fees along
with additional fees required under law and completion of all formalities, including payment of any late fee or any other charges which are leviable by
the respondent for the late filing of statutory returns, and also subject to payment of cost of Rs. 25,000/- to be paid to Prime Minister's Relief Fund.
The name of the Appellants Company shall then, as a consequence, stand restored to the Register of the Registrar of Companies, as if the name of
the company had not been struck off in accordance with Section 248(1) of the Companies Act, 2013.
The appeal is disposed of accordingly.
Let the copy of the order be served to the parties.