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Judgment
This appeal is filed by the company, Big Star Productions Private Limited, (for brevity ""the company"") along with its director under Section 252(3)
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 with the Registrar of Companies, NCT of Delhi and Haryana on 24.08.2010 under the
provision of Companies Act, 1956 having CIN U74300DL2010PTC207400.
The company is having registered office at D-33, Vikashpuri, New Delhi-110018.
The authorized share capital of the company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each and the issued, subscribed and paid
up 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:
a. To produce, buy, sell, distribute, import, export or otherwise deal in feature films, tele-films, television, serials, advertisement films, corporate films,
documentaries, sports films, cartoon films, scientific and educational films, motivational films, talkies ( of every description) cinema slides and shorts in
all their branches and to erect, construction, purchase, take or lease or hire otherwise acquire and maintain film production studios, laboratories,
cinemas, picture places, halls, theatres, concert halls, theatrical companies, entertainment groups, touring talkies, and all other kinds of buildings
necessary or required to carry on the businesses of the company and also to do such business on behalf of or in collaboration with films, Division,
Doordarshan, NDFC, Central and State Government, bodies and other public and private sector companies in India and abroad, television programs
and video and audio cassettes.
And others.
As per the notice of non- compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements for the
last two years, 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 appellants further submit 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
before striking of the name of the company.
The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:
a. The copy of Bank Statement of the company, issued by Kotak Mahindra Bank, Saket Branch, Delhi from 01.04.2016 to 30.09.2017 having closing
balance of Rs. 58,831.60/- reflecting various transactions done by the company.
b. The copies of financial statements of the company for the financial years from 31.03.2011 to 31.03.2017 The turnover as per last audited balance
sheet as on 31.03.2017 is Rs. 1,88,19,944.00/- and corresponding profit is Rs. 5,22,795/-.
c. The copies of Income Tax Returns filed for the assessment year 2013-14 to 2017-18. The tax paid by the company for A.Y. 2017-18 is
Rs.7,04,738/- and refund for the same period is Rs. 5,100.
d. The copy of Service Tax Registration Certificate vide Service Tax Code No. AAECB2267KSD001 issued by Central Board of Direct Taxes dated
07.01.2011
e. The copy of Goods and Service Tax Registration Certificate vide Goods and Service Tax Identification No.07AAECB2267K1ZL issued by Central
Board of Direct Taxes dated 26.06.2017.
The appellants submit that the professionals engaged by the company to ensure statutory compliances under the provision of Company Act, 2013
has failed to file its Balance Sheet and Annual Returns with Registrar of Companies for Financial Year 2014, 2015 and 2016.
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 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 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:
a. That the company at the time of its name was struck off was carrying on business.
b. Or it was in operation
c. Or it is otherwise just that the name of the company be restored on the register.
The Appellants have submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct
company as per section 252 of the Act. 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 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.