ACHIEVER Construction Pvt. Ltd. vs Registrar Of Companies

This Appeal has been filed by MIS Achiever Construction Private Limited CIN: U45200DL2009PTC190143, invoking the provision of section 252

of the Companies Act, 2013 for restoration of the name of the appellant company in the register maintained by the Registrar of Companies, NCT of

Delhi and Haryana.

As per the averments Achiever Construction Private Limited was incorporated on 11.05.2009 and has its registered office at WZ-910, 2nd Floor,

Ring Road, Naraina, New Delhi-110028 within the jurisdiction of this Tribunal. The main object of Company is to carry on the business of

Construction.

A sweeping action was initiated by the Roe at the instance of MCA in striking of the names of several Companies who had failed to file their

Statutory Returns. The appellant had failed to file its Annual Returns and Financial. Statements since incorporation thereby giving rise to the surmise

that the business of the company was not in operation. Consequently, its name was struck off by the Respondent from the Register of Companies

under Section 248 of the Companies Act, 2013, upon taking steps in accordance with law and issuing a notification in the Official Gazette. The names

of the affected companies were posted on its website.

The appellant company admits its default in carrying out the statutory compliances but submits that the same was due to lack of professional

guidance, inadvertence & oversight.

In order to corroborate its business operation the petitioner has placed before us the following evidence:

I. Copy of Audited Balance Sheet of the appellant company reflecting Deferred Tax Liabilities for the year ending 31st March 2017 as Rs. 1,419,834/-

. It also has Current Liability for the Financial years ending 2016 & 2017 as Rs. 5,470,758/- & Rs.4,989,685/-. Besides Revenue from operation for the

Financial year ending 31st March 2016 as Rs. 2,293,023/- & Cash & Cash equivalents.

II. Copy of Form 26AS showing TDS deposited on the income accruing to the appellant company.

III. Copy of Provident Fund Registration Certificate.

IV. Copy of GST Registration & Service Tax.

The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes

that if in the opinion of the Tribunal it is considered just and equitable to restore the name of the company in the Register of Companies, it may direct

the RoC to restore the name in its Register.

The case of the appellant is covered by a catena of judgments where restoration has been duly allowed. As per the law laid down, a chance should

be given to the company, its members and creditors to revive the company, giving them the opportunity of carrying on the business if the court is

satisfied that such restoration is necessary in the interest of justice.

A perusal of the documents referred to in paragraph 5 above, reflects that the appellant has been in business which necessitate restoration of its

name in the Register of Companies. The assumption of RoC that the company was not in operation was merely on grounds of non-filing of the

Statutory Returns. The Act itself provides for redressal of these defaults. A step as stringent as what has been taken at least requires an opportunity

to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor

equitable. As per several decisions of various Courts it should only be in exceptional circumstances that Courts should refuse restoration where the

company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight.

Accordingly, the petition is allowed subject to payment of costs of Rs. 25,000/- to the Prime Minister Relief Fund. The restoration of the petitioner

company's name in the Register will be subject to their filing all outstanding documents for the defaulting years as required by law and completion of

all formalities, including payment of any late fee or other charges which are leviable by the respondent for the late filing of statutory returns. The name

of the petitioner company shall then stand restored in the Register of the Registrar of Companies (RoC), as if its name of the company had not been

struck off.

The direction for freezing the Bank Account(s) of the appellant company, if on this ground, shall consequently be also set aside immediately to

enable the company carry out its business operation. Compliance of this order for restoration shall be made by the respondent with all its consequential

effects within one week of compliance by the appellant.

The petition is disposed of accordingly.

Let the copy of the order be served to the parties.