Appaloosa Engineering and Constructions Pvt. Ltd. And Anr. vs Registrar Of Companies And Anr.

This appeal is filed by the company, Appaloosa Engineering and Constructions Private Limited (for brevity the ‘Company’), through its

Member Mr. Zafar Khan, under Section 252(3) 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 with the Registrar of Companies, NCT of Delhi and Haryana on 13.04.2009 under the

provision of Companies Act, 1956 having CIN U74200DL2009PTC189307.

The company is having registered office H. No. 268, Block-A, Gali No. 17, Aali Vihar, Badarpur, New Delhi-110076.

Authorized share capital of the Company is Rs.1,00,000/-divided into 10,000 equity shares of Rs.10/- each and issued, subscribed and paid up capital

of Rs.1,00,000/-fully subscribed divided into divided into 10,000 Equity Shares of Rs.10/- each.

The main objects of the company are:

i. To carry on the business as consultants of mechanical, electrical, civil, electronics, communication, computer, agriculture, aeronautical, aviation and

construction engineering and to carry on the business as management and consultancy of Architectural, Project and Engineering. To carry on the

business of providing services and consultancy for setting up projects, preparation of project profiles, feasibility reports, know-how and technology

transfer, liaison with various firms and government agencies in India and abroad.

And other main objects.

As per the notice of non- compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements since

financial year 2010, 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 appellant has stated that notice under section 248(1) of the Act in the form of STK-1 was received by the Company before striking of the

name of the company, however, due to lack of professional guidance and paucity of time the required documents could not be filed in time nor the

explanation or justification was submitted by the appellant for non-filling of required documents and the name of the company was struck off from the

Register of Companies.

The Appellant 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 the company, issued by HDFC Bank, from 01.04.2017 to 20.01.2018, reflecting various transactions done by the

company, having closing balance of Rs. 19,56,129.82/-.

ii. The copies of financial statements of the company from 2010-11 to 2016-17. The Annual Accounts as on 31.03.2017 reflects revenue from

operation of Rs.36,89,936 /-

iii. The company has incurred employee benefit expense of Rs.16,92,950/- for the financial year 2016-17.

iv. The copy of list of employees employed by the company along with their pending salary with the company of Rs. 1,49,000/- as on 31.03.2018

v. The copies of TDS certificate in Form 26AS for the assessment years 2016-17 and 2017-18 reflecting total tax deducted by the company in

assessment year 2017-18 of Rs. 63,600/-

vi. The copies of Letter of Intent, for construction of various structures by the Appellant company, one issued by L & T construction dated 25.01.2017

and other two issued by Honeywell Automation India Limited dated 01.03.2013

vii. The copy of details of payment received by the Appellant Company from existing agreements, between 01.01.2017 to 31.10.2017, reflecting total

payment received of Rs. 89,42,662/-

It is further submitted by the Appellant 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 and substantial business transactions 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 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 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 cost 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.