Arun Bharti vs Registrar Of Companies

Hemant Kumar Sarangi, Member (T)

This appeal is filed by the erstwhile director of the company, Conflux Enterprises Private Limited (for brevity the `Company'), 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 08.08.2018 vide notification no. ROCDELHI/248(5)/STK-7/4865 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 15.02.2007 having CIN U51909DL2007PTC159318.

The company is having registered office at 48/33-34, 2 Floor, DSIDC Complex Opposite Police Station Pocket-2mayur Vihar, Pahse-1

Delhi110091. The Authorized share capital of the Company is Rs.10,00,000/- and issued, subscribed and paid up share capital of the Company is Rs

.8,20,000/-

The main objects of the company are:

i. To establish and carry on in India the business of importing, exporting, buying, selling, etc. chemicals and petroleum products and other items and to

act as franchisee of various reputed companies.

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.

It is submitted that on 18.06.2018, a notice under section 248(1) of the Companies Act, 2013 was sent to the company by the ROC but due to the

inadvertent mistake of a clerical staff of the company the same was not brought to the notice of the management and consequently the company

inadvertently failed to reply to the notice of the ROC.

The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:

i. The copies of Financial Statements of the company for the financial years from 31.03.2016 to 31.03.2018. The Balance Sheet as on 31.03.2018

reflects cash and cash equivalent of Rs. 798/- and Loss of Rs. 12,600/-

ii. The copies of Income Tax Returns filed for the assessment years 2017-18 & 2018-19. The tax paid for the assessment year 2018-19 is Rs. 1000/-.

iii. A copy of the share certificates in favor of the company along with cover letter issued by MIS Laxmi Barter Private Limited.

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.

10 . The Registrar of Companies and the Income Tax Department have not submitted their report but the company has filed its Income Tax Return

for the assessment year 2017-18 & 2018-19, which are duly annexed with the application.

11 . 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.

12 . 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.

13 . 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.