Bds Security Services Private Limited vs Registrar Of Companies Nct Of Delhi And Haryana And Ors

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the M/s. BDS Security Services Private Limited and its Directors (for brevity the 'Company'), under Section 252 of the Companies Act, 1956 (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, issued vide notification No. ROC/DELHI/248(5)/STK-7/2879 and published on 30.06.2017 by Registrar of Companies, the respondent herein.

The Appellant states that, the company was incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana under the Companies Act, 1956 on 10.08.2011 with CIN U74920 DL2011 PTC223552, having its registered office at Flat No. 25, Arvindo Apartment, Near NCERT, Adchini, New Delhi - 110017.

The Authorized Share Capital of the company is Rs. 1,00,000/- divided into 10,000/- equity shares of Rs. 10/- each. The 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, as per the Master Data Annexed.

The main objects of the company are:

(i) To carry on the business of security services, detectives, investigators and man power recruitment agency. To provide facility management, housekeeping services, supply security personnel, security guards, security gunmen, Ex-servicemen, personnel security officers, body guards, security guards, servants, labour for factories, companies, houses, Airlines, Airports, farm houses and any other filed.

(ii) To plan, establish, set up and carry on the business of rendering, investigations, detective and security services and facility management services in all their sphere and areas.

(iii) To carry on the business, selection, recruitment, placement and training of guards, skilled and unskilled managerial, administrative, technical supervisors, security guards, gunmen, security officers and other personnel services elsewhere and to provide consultancy therefore.

(iv) And the other main object.

The appellant further states that, a sweeping action was initiated by the ROC, at the instance of MCA, in striking off the names of several Companies who had failed to file their Statutory Returns. The Appellant Company has not filed its Annual Returns and Balance Sheet for F. Y. 2011-12 to 2016-17, thereby giving rise to the surmise that the company was not in operation. Consequently, its name was struck off vide notice STK-7 dated 30.06.2017 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance with law and issuing a notification in the Official Gazette. The names of the affected companies were posted on its website.

The Respondent herein had issued purported Public Notice bearing No. ROC-DEL/248/STK-5/721 dated 27.04.2017 and had sought explanation from the company as to why its name should not be struck off from the register of companies, on account of not carrying on any business or operation for a period of two immediately preceding financial years and having not made any application, within such period, for obtaining the status of a dormant company under section 455 of the Companies Act, 2013 (Act). Consequently, its name was struck off vide notice bearing No. ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017 (name of the company is reflected at SI. No. 2782), whereby name of 24280 companies have been struck off from the Registrar of Companies and the Company has been dissolved.

As per the notice of non-compliance of provision of the Companies Act, 2013, the said company has not filed its Annual Returns and Balance Sheet for F. Y. 2011-12 to 2016-17, 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 brought forward the following documents about it being in operation and functional during the period of striking off:

i. The copy of Bank Statements of the Company of ICICI Bank Limited for the period 02.04.2014 to 11.11.2016 showing various transaction details of the company and reflecting closing credit balance of Rs. 14,184.00 as on 11.11.2016.

ii. The copies of Audited Financial Statements of the company for the F. Y. 2013-2014 to 2014-15. The Financial Statement for F. Y. 2014-15 reflects Fixed Assets in form of Tangible Assets of Rs. 10,040/-. and Current Assets in form of Cash and Cash Equivalents of Rs. 1,86,443/-. Revenue from Operations of Rs. 10,999,164/-, Other Expenses of Rs. 22,829/- and Employee benefit Expenses of Rs. 7,139,063/-.

iii. The copies of Income Tax Returns for the Assessment Years 2012-13 & 2015-16. The tax paid by the company for A.Y. 2015-16 is Rs. 2,00,180.

The ROC has filed its reply on 27.07.2018 in which it has been stated that the company had not filed its Annual Returns and Balance Sheet since its incorporation. However, the ROC further submits that the company was struck off by the office of ROC, as neither the company was carrying on any operation for a period of two immediately preceding financial years, nor it obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.

The Income Tax Department has filed its reply on 13.09.2019 in which it has been submitted that the Company has filed its Income Tax Return for the A. Y. 2012-13 to 2015-16 and the company has not filed Income Tax Return for the A.Y. 2016-17 and 2017-18. It further states that there are no pending cases against the Company. The grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company carrying on business or was in operation at the time of striking off its name, and where it appears "just" to the adjudicating authority that the name of the company is to be restored to the Register of Companies and the Section 252(3) further contemplates that one of the above 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.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and during the period preceding strike off, therefore it could not be termed as a defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) 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 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.