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Judgment
Virendra Kumar Gupta, Member (T)
This Application has been filed under Section 252(3) of the Companies Act, 2013 for restoration of the name of the struck off company.
The facts, in brief, are that Company was incorporated on 12.09.2006 to carry on business of mechanical electrical and consulting engineers, electricians, supplier of electricity for the purpose of the light heat motive power and manufacturers of the dealer in machinery etc. The Company did not file its Annual Returns for Financial Year 2015-16, 2016-2017 and 2017-18 which resulted into belief on the part of Registrar of Company (ROC) that the company was neither carrying on business nor in operation. This belief was further strengthened due to the fact that the company had not taken status of dormant company under Section 455 of the Companies Act, 2013. Accordingly, Registrar of Companies, Gujarat (Dadra & Nagar Haveli) after complying with statutory formalities as specified under Section 248, struck off the name of the company on 14.08.2018.
Learned Counsel Mr. Ashutosh Dave appeared on behalf of the Applicant/Company through video conferencing.
Learned Counsel, appearing on behalf of the Applicant, submitted that due to inadvertent mistake Annual Returns and Financial Statements for the Financial Year 2015-16, 2016-17 and 2017-2018 could not be filed although the Company was always in operation and carrying on business. It was also contended that notice u/s 248(1) of the Companies Act, 2013 had not been served on the Company and its Directors. However, on a query, it was admitted that notice in Form STK-5 was published both in newspaper as well as Official Gazette as required u/s. 248(4) of the Companies Act, 2013. The Learned Counsel, thereafter, drew our attention to the Financial Statements for the year 31.03.2017 to 31.03.2018 to show that company was having liabilities of surplus profit as well as assets which clearly showed that it was carrying on business and in operation. However, no plausible reason could be given for non-filing of statutory returns as per the provisions of the Companies Act.
RoC did not appear, however, RoC filed its report wherein, it has been submitted that matter could be decided on merits considering the facts now available before the Tribunal.
We have considered the submissions made by learned counsel as well as ROC report and material on record. It is noted that company has failed to file returns for three Financial Years which prompted ROC, (Dadra & Nagar Haveli) Gujarat to strike off the name of such company from its Register of Companies. No plausible explanation has been given for such failure. Although, it has been claimed that notice u/s 248(1) was not served but it is noted that notice in Form STK-5 containing name of this company was published. The Company is no doubt having business operations and has got capital liabilities as well as assets in its balance sheet. Company has already substantial revenue of Rs. 33.64 Crores and Rs. 14.58 Crores in the year 31.03.2018 and 31.03.2017 respectively. The revenue is increased in yearly basis. Thus, the name of the company needs to be restored in the Register of Companies maintained by ROC, (Dadra & Nagar Haveli), Gujarat from the date of its striking off. However, for non-compliance of provisions of Companies Act, 2013 relating to filing of statutory returns without plausible explanation, even after having substantial operations, suitable cost needs to be imposed. Accordingly, the name of the Company is restored on payment of costs as stated hereinafter. We order as under:
ORDER
(i) The Registrar of Companies (Dadra & Nagar Haveli) Gujarat, the respondent herein, is ordered to restore the original status of the Applicant Company as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing status of Company from 'struck off to Active.
(ii) The Applicant Company is directed to file all pending statutory document(s) including Annual Accounts and Annual returns for the financial years in default along with prescribed fees/additional fee/fine as decided by ROC within 45 days from the date on which its name is restored on the Register of Companies by the RoC;
(iii) The Company's representative, who has filed the Company Appeal on behalf of the Applicant Company, is directed to personally ensure compliance of this order;
(iv) The restoration of the Company's name is subject to the payment of cost of Rs. 50,000/- (Rupees Fifty Thousand Only) for each year of default through online payment in www.mca.gov.in under miscellaneous fee by mentioning particulars as "payment of cost for revival of company pursuant to orders of Hon'ble NCLT in Appeal No. 201/252(3)/NCLT/AHM/2019" within 30 days from the date of this order.
(v) The Applicant is permitted to deliver a certified copy of this order with ROC within thirty days of the receipt of this order;
(vi) On such delivery and after duly complying with above directions, the Registrar of Companies, (Dadra & Nagar Haveli) Gujarat, is directed to, on his office name and seal, publish the order in the official Gazette;
(vii) This order is confined to the violations, which ultimately leads to the impugned action of striking off the name of the Company, and it will not come in the way of ROC to take appropriate action(s) in accordance with law, for any other violations/offences, if any, committed by the Applicant Company prior or during the striking off of the company.
The Company Appeal is disposed of accordingly.
Urgent certified copy of this order, if applied for, be issued upon compliance with all requisite formalities.