Attar Singh Sharma And Anr. vs Registrar Of Companies And Anr.

This appeal is filed by the erstwhile directors Mr. Attar Singh Sharma and Mr. Sanjeev Kumar Sharma of the company, M/s AKS Infracon 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 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 16.10.2006 having CIN U70109DL2006PTC154808.

The company is having registered office at 215 Village Devli, Delhi-110092.

Authorized share capital of the Company is Rs.5,00,000/-divided into 50,000 equity shares of Rs.10/- each and issued, subscribed and paid up share

capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

The main objects of the company are:

i. To carry on the business as owners, builders, colonizers, developers, promoters, proprietors, occupiers, lesser, interior decorators, civil contractors,

maintainers of residential, commercial and industrial buildings, malls, multiplex, resorts, hotels, motels, colonies, mills and factory sheds, and buildings,

workshop building, cinema house building and to deal in all kinds of immovable properties whether belonging to the company or not.

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 since

incorporation, 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 company issued by Allahabad Bank, from 01.04.2014 to 29.03.2017, reflecting various transactions done by the

company during the period of striking off and having closing balance of Rs. 3,20,066/-

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

reflects tangible fixed assets of Rs. 21,82,026/-and Loss of Rs. 6,44,154/-

iii. The copies of Income Tax Returns filed for the assessment years 2014-15 to 2017-18. The tax paid for assessment year 2016-17 is Rs. 22,540/-

iv. The copies of four different sale deeds, executed by four different parties in favor of the appellant company executed on different dates, which are

the sub divisions of the property situated at Tehsil Faridabad, Sidhaula admeasuring about 15 marla each for total consideration of Rs. 3,57,500/- for all

the properties, which is reflected in the balance sheet of the appellant company.

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 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 an outstanding demand of Rs.1,90,321/- against the Assessee but 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 of possession of immovable property by the company and further efforts of investment to be

made in immovable property by the company and 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.