Apul Buildtech Private Limited And Anr vs Registrar Of Companies

This appeal is filed by the erstwhile director of the company, Apul Buildtech Private Limited (for brevity the ‘Company’), through its director

Mr. Ajay Kumar 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 No. 1 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 No. 1 herein.

The company was incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT

of Delhi and Haryana on 02.02.2012 having CIN U45200DL2012PTC230926.

The company is having registered office at 216-A, Gauatm Nagar New Delhi-110049. The Authorized share capital of the Company is

Rs.1,00,000/- and issued, subscribed and paid up share capital of the Company is Rs.1,00,000/-

The main objects of the company are:

i. To carry on the business of development and construction of building and management and operation of corporate park, retail business place, hotel,

restraint, banquet and all types of real estate activities and to carry on the business of construction of residential houses, commercial buildings, flats

and factory’s sheds and building in or out side of India and to act a builders, colonizers and civil and constructional contractors.

ii. 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, 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 submitted that the company was in operation and the business activities were carried out by the company during the period of

striking off, but the reporting of such activities through Annual Returns and Financial Statement had not been filed with Registrar of Companies due to

inadvertence on part of the management.

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 Catholic Syrian Bank from the period 01.04.2016 to 29.06.2018 reflecting various

transactions done by the company and having closing balance of Rs 75,524/-

ii. The copies of Financial Statements of the company for the financial years from 31.03.2014 to 31.03.2018. The Balance Sheet as on 31.03.2017

reflects cash and bank balance of Rs. 2,000,000/- and Profit of Rs. 1,58,340/-

iii. The company has incurred employee benefits expense of Rs. 1,61,854/- for the financial year ending on 31.03.2017.

iv. The copies of Income Tax Returns filed for the assessment years 2013-14 & 2017-18. The tax paid for the assessment year 2017-18 is Rs.

53,629/-.

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 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 not submitted its report but the appellant company has annexed the income tax returns for the assessment years

2013-14 to 2017-2018.

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 Appellant have submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as a 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 off 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 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.