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Judgment
This appeal is filed by the company, M/s Altus Health Care Private Limited (for brevity the 'Company), through its Promotor, Mr. Kiran Magotra,
along with its Members 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. ROCDEL/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 13.02.2009 having CIN U85191DL2009PTC187611.
The company is having registered office at C-54, 2nd Floor, Fateh Nagar, New Delhi-110018.
Authorized capital of the Company is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each and issued, subscribed and paid up capital
of the company Rs.10,00,000/- fully subscribed divided into divided into 1,00,000 Equity Shares of Rs.10/- each.
The main objects of the company are:
i. To carry on the business as importers, buyers, manufacturers, makers, refiners, processors, Stuckists, suppliers, distributors, whole sellers, retails,
consultants and exporters in beauty health, toiletry, and cosmetic products, all kinds of ayurvedic medicines and various other allied ayurvedic products
of similar nature such as all preparations used externally or internally by men and women to condition and beautify body, by cleaning, coloring,
applying, massaging, spraying, softening or protecting the skin, hair, nails, lips, eyes or any part of the body; synthetic, herbal or vegetable based; cold
cream, Face powder, dusting powder, lipstick, bath salts, bath gel, bath oils, nail polishes, color cosmetics, hair lotions, hair sprays, shampoos, soaps,
synthetic detergents, hair coloring dyes, tints, rinses, henna, hair bleaches, mascara and hair removers.
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 stated that the company is a going concern as is evident from its Statement of Profit and Loss Account and Bank Statement
of the Company but due to lack of knowledge and competence of appellants the relevant provisions of Companies Act, 2013/1956 could not be
complied regarding filing of financial statements and annual returns with Registrar of Companies.
The Appellants has 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 Syndicate Bank, as on 20.02.2018, reflecting various transactions done by the company during the period of striking
off and having closing balance of Rs. 211.46/-.
ii. The copies of financial statements of the company for the financial years ending on 31.03.2010 up to 31.03.2017. The Balance Sheet as on
31.03.2017 reflects Trade Payables of Rs. 42,78,559/- and Trade Receivables of Rs. 10,90,000/- and has incurred loss of Rs. 4,534 as per audited
Profit and loss Account as on 31.03.2017.
iii. The company has incurred employee benefit expense of Rs. 234/- for the financial year ending on 31.03.2017.
iv. The copies of Income Tax Returns filed for the assessment years 2016-17 to 2017-18 as NIL Return.
v. The copy of certificate issued by Central Excise Office dated 01.02.2016 for export of medical preparations, baby care products and Cosmetics and
the copies of invoices raised for removal of excisable goods from factory on payment of duty under Rule- 11 of Central Excise Rule, 2002 dated
01.02.2016 of Rs. 10,17,575/-
vi. The copy of receipt dated 03.02.2016 issued by Bhavna Roadways for delivery of consignment worth Rs. 32,825/-
vii. The copy of form 402, for declaration under Section 68 of the Gujarat Value Added Tax Act, 2003, for movement of goods within the State or
goods moving outside the State dated 03.02.2016 with respect two commodities.
viii. The copy of Marine Cargo Specific Voyage Policy issued by The New India Assurance Company Limited for the cargo sum of Rs. 21,43,496/-
having Bill of lading number BSS DEL 0112016 dated 28.02.2016
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.