Asra Infotech Pvt. Ltd. vs Registrar Of Companies And Anr.

This appeal is filed by the company, M/s Asra Infotech Private Limited (for brevity the 'Company), through its Director, Mr. Raghuvinder Singh,

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. ROC-DEL/ 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 10.06.2008 having CIN U72300DL2008PTC179306.

The company is having registered office at J-1-74, Saket, New Delhi-110017.

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 up gradation of software, website, webpage, internet, online electronic communication systems and

data processing and generally engage in the business of dealing with software, website, webpage, internet, online electronic communication systems

and data processing.

And other main objects.

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

financial year ending on 31.03.2011, 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 no notice under section 248(1) of the Act in the form of STK-1 was served on Company or any of the directors or any

person on their behalf, before striking of the name of the company.

The appellant has further contended that the Registrar of Companies has not followed the procedure mentioned under section 248(1)(c) of

Companies Act, 2013 which provides ""Where the Registrar has reasonable cause to believe thatâ€" (c) a company is not carrying on any business or

operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a

dormant company under section 455, he shall send a notice to the company and all the directors of the company, of his intention to remove the name

of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any,

within a period of thirty days from the date of the notice.

And also pursuant to section 248(4) of Companies Act, 2013 which provides ""A notice issued under sub-section (1) or sub-section (2) shall be

published in the prescribed manner and also in the Official Gazette for the information of the general public.

And pursuant to Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 which provides ""Manner

of publication of notice-

(1) The notice under sub-section 1 or sub-section 2 of section 248 shall be in Form STK 5 or STK 6, as the case may be, and be-

(i) placed on the official website of the Ministry of Corporate Affairs on a separate link established on such website in this regard;

(ii) published in the Official Gazette;

(iii) published in English language in a leading English newspaper and at least once in vernacular language in a leading vernacular language newspaper,

both having wide circulation in the State in which the registered office of the company is situated.

Provided that in case of any application made under subsection 2 of section 248 of the Act, the company shall also place the application on its website,

if any, till the disposal of the application.

(2) The Registrar of Companies shall, simultaneously intimate the concerned regulatory authorities regulating the company, viz, the Income-tax

authorities, central excise authorities and service-tax authorities having jurisdiction over the company, about the proposed action of removal or striking

off the names of such companies and seek objections, if any, to be furnished within a period of thirty days from the date of issue of the letter of

intimation and if no objections are received within thirty days from the respective authority, it shall be presumed that they have no objections to the

proposed action of striking off or removal of name.

The appellant has further contended that the Registrar of Companies did not comply with the provisions of Section 248(6) of the Companies Act,

2013 before passing the Order under Section 248(5) of the Companies Act, 2013. The provisions of section 248(6) of the Companies Act, 2013 is

reproduced below:

The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realization of all

amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if

necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company:

Provided that notwithstanding the undertakings referred to in this sub- section, the assets of the company shall be made available for the payment or

discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the Register of Companies.

However, without going into the controversy of the latches in following the due procedure of law by Registrar of Companies before the final act of

striking off the name of the company from the register of companies maintained by Registrar of Companies for non-filing of statutory documents by

company for the relevant period, by Registrar of Companies through publication of notice on 30.06.2017, the appellant has preferred to prove with

documents and records that the company was in operation and doing business during the period of striking off the name of the company as a better

remedy.

The Appellant has submitted that the company was not able to continue its business activities properly because of circumstances beyond its

control, as the appellant was involved in disputes with the Greater Noida Industrial Development Authority and parties to the Memorandum of

Understanding dated 21.01.2014.

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 company issued by HDFC Bank, from 25.03.2014 to 14.07.2017, reflecting various transactions done by the

company during the period of striking off and having closing balance of Rs. 1,93,405/- .

ii. The copies of financial statements of the company for the financial years ending on 31.03.2015 up to 31.03.2017. The Balance Sheet as on

31.03.2017 reflects non-current assets as advance for plot of Rs. 33,388,920/-

iii. The copies of Income Tax Returns filed for the assessment years 2016-17 to 2017-18 as NIL Return.

iv. The copy of application, dated 15.07.2008, for allotment of industrial plot along with the acknowledgement for payment of Rs. 12,10,000/- by the

company and the copy of letter of allotment, having letter no. 3115, dated 20.08.2008, issued by Greater Noida Industrial Development Authority, for

allotment of industrial plot no. admeasuring 2,200 square meters located at Greater Noida, U.P., in the name of the company to set up a computer

manufacturing unit. The total cost of the project as per the Project Report was Rs. 7,81,00,000/-

v. The copy of letter of allotment, having letter no. 3115, dated 20.08.2008, issued by Greater Noida Industrial Development Authority, for allotment of

industrial plot no. admeasuring 2,200 square meters located at Greater Noida, U.P., in the name of the company to set up a computer manufacturing

unit.

vi. The copy of the order of the Honorable High Court of Judicature at Allahabad dated 10.05.2016 in WC no. 21388/2016 which stayed the

registration of the said industrial plot.

vii. The copy of the order of the Honorable Supreme Court of India dated 26.08.2016 in SLP no. 15427 of 2016 which stayed the effect and operation

of the order passed by the Honorable High Court of Judicature at Allahabad dated 10.05.2016 in WC no. 21388/2016 also stayed the cancellation of

plot sale deed and the penalty demand raised against the company by the Greater Noida Industrial Development Authority till further orders.

viii. The copy of the Memorandum of Understanding dated 21.01.2014 for purchasing a plot bearing no. INS-02, Sector Chi V, Greater Noida

Industrial Development Area admeasuring 1.5 Acres.

ix. The copy of lease deed between Greater Noida Industrial Development Authority and company dated 26.03.2017 for industrial plot bearing no.

INS-02, Sector Chi V, Greater Noida Industrial Development Area, Gautam Budh Nagar, U.P.

x. The certified copy of arbitration award, signed and delivered by Mr. Avtar Singh, Sole Arbitrator, dated 27.03.2017 in favour of the company with

respect to the dispute regarding Memorandum of Understanding dated 21.01.2014

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 because it was involved in disputes with the Greater Noida Industrial Development Authority and parties to the Memorandum

of Understanding dated 21.01.2014 and 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 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 Appellant 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 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 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.