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Judgment
Dr. Deepti Mukesh, J
The present appeal is filed by M/s Agrawal Scaffolding India Private Limited (for brevity the 'Company') through 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, issued vide bearing No. ROC/DELHI/248(5)/STK-7/4865 dated on 08.08.2018 by Registrar of Companies, the respondent herein.
The Appellant states that, the company was incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana under the Companies Act, 1956 on 29.05.2007 with CIN U28133DL2007PTC164053, having its registered office at J-13, Dilshad Colony, New Delhi - 110095, within the jurisdiction of this Tribunal.
The Authorized Share Capital of the company is Rs. 5,00,000/- divided into 50,000 equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the Company is Rs. 1,50,000/- divided into 15,000 equity shares of Rs. 10/- each, as per the Master Data Annexed. 4. The main objects of the company are:
a. To carry on the business of Pipes scaffolding and pipefitting and shuttering.
b. To carry on in India and elsewhere the business of producing, assembling, repairing, altering, fabricating, converting, improving, handling, insulating, recondition, welding, dismantling, buying, selling, Importer, exporter and to act as agent and broker specification and deal in Pipes scaffolding and pipe fitting and shuttering.
The Respondent no. 1 herein had issued Public notice bearing No. ROC/DELHI/248/STK-5/2018/2912 dated 18.06.2018. Consequently, its name was struck off vide noticebearing No. ROC/DELHI/248(5)/STK-7/4865 dated on 08.08.2018 (Company's name appearing at Sl. No. 838) whereby name of 24280 companies have been struck off w.e.f: 08.08.2018 from the Registrar of Companies.
As per the notice of non-compliance of provisions of the Companies Act, 2013, the Appellant had not filed its Financial Statements since its incorporation, thereby giving rise to the surmise that the business of the company was not in operation. Consequently, the name of the company was struck off in terms of provisions of Section 248 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 Appellant has brought forward the following documents about it being in operation and functional during the period of striking off:
The copies of Audited Financial Statements of the company for the period from F. Y. 2014-15 to 2017-18. The Balance Sheet as on 31.03.2018 reflects Current Assets in form of Tangible Assets of Rs. 23,11,826/-, Inventories of Rs. 95,52,510/-. Cash and cash equivalents of Rs.11,50,228/-. Revenue from operation Rs. 7,40,57,392/-.
ii. The copy of Bank Statements of the Company in HDFC Bank Limited for the period 01.04.2018 to 31.03.2019 showing various transaction details of the company and reflecting closing credit balance of Rs. 07,85,729.30/- as on 30.03.2019.
iii. The copies of Income Tax Returns for the assessment years 2015-16 to 2019-20. The tax paid by the company for A.Y. 2019-20 is Rs. NIL.
iv. The Copy of the GST registration certificate and invoices.
v. EPF and ESI Challan cum return of employees.
The ROC has filed its reply on 08.01.2020 in which it has been stated that the company had not filed its Annual Returns and Balance Sheet since its incorporation. However, the ROC further submits that the company was struck off by the office of ROC, as neither the company was carrying on any operation for a period of two immediately preceding financial years, nor it obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.
The Income Tax Department has not filed any reply in spite of opportunities given to do the same.
The grounds contemplated under section 252 of Companies Act, 2013, are that the company was carrying on business or was in operation at the time of striking off its name, and where it appears "just" to the Adjudicating Authority that the name of the company is to be restored to the Register of Companies and the Section 252(1) further contemplates that one of the above three conditions are required to be satisfied before exercising jurisdiction to restore the company to its original name on the register of the Registrar of Companies.
The Appellant has submitted sufficient evidence that it has been in operation during the period preceding strike off, therefore it could not be termed as a defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) 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 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 Appellant 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 off the name of the company, is hereby declared illegal and 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 Rs. 25,000/- to be paid to Prime Minister's Relief Fund. The name of the Appellant 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.