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Judgment
This Appeal has been filed by M/s. BIR Automobile Finance Private Limited invoking the provisions of Section 252 of the Companies Act, 2013 for
restoration of the name of the Appellant Company in the register maintained by the Registrar of Companies, NCT of Delhi & Haryana.
As per the averments, M/s. BIR Automobile Finance Private Limited was incorporated on 01.11.2013 as a private limited company and has its
registered office at 1-99, Kirti Nagar, New Delhi110015 having CIN No. U65900DL2013PTC259764. The business of the appellant company is
providing finance for fulfillment of hire or purchase requirements of a cars, buses, lorries, ships, aircrafts of all descriptions, machinery, tractors,
equipment's, ancillaries etc. of the transport undertaking meaning of a company, corporation or departmental undertaking which is engaged in the
operations, management, repairs, maintenance, manufacture or trading of any mode of transport be it by road, sea, or air.
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 had failed to file its Financial Statements and Annual Returns since the Financial Year ended on 31.03.2015 thereby
giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off by the Respondent from the
Register of Companies under Section 248 of the Companies Act, 2013 vide notification dated 08.08.2018. They admit their default in carrying out the
statutory compliance but submits that the same was due to lack of professional guidance.
By filing reply, Registrar of the Company justifies its order but in course of hearing, AROC submitted that ROC has no objection if the name of the
Company is restored.
Similarly, Income Tax department has also not raised any objection.
We have also heard the ld. Counsel appeared for the appellant, who in the course of his arguments submitted that the Appellant is ready to submit
its Financial Statements and Annual Returns before the respondent. He further submitted that the Appellant Company has been in continuous business
operation, regular in preparing its annual return and balance sheets and filing income tax returns with the competent authorities and has certain assets
which necessitate restoration of its name in the record of ROC. In order to corroborate this submission, the appellant has placed before us the
following evidence:
i. Copy of Income Tax Returns for A.Y. 2014-15, 2015-16, 2016-17 and 2018-19.
ii. Copy of Audited Balance Sheet reflecting Revenue from Operations at Rs. 30,96,884/- for the Financial Years ending 31st March, 2019. It has
current and non-current assets and liabilities including Trade Receivables and Cash and Cash Equivalents.
iii. Copy of Bank Statements of Current Account having with HDFC Bank Limited, Kirti Nagar in the name of Appellant Company for the period
from 01.04.2017 to 31.03.2020 also placed on record showing operation in their account.
iv. Copy of Goods & Service Tax Registration Certificate bearing no. 07AAFCB7298D1ZI in favor of the Appellant Company along the latest GST
Returns in Form GSTR-3B.
The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013, which includes
that if it is just and equitable to restore the name of the company in the Registrar of Companies, it may direct the RoC to restore the name in its
Register.
The appellant has been able to satisfy this Bench that it has certain assets, which necessitate and justify restoration of its name in the Register of
Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow
restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various High Courts, it should
only be in exceptional circumstances that Courts should refuse restoration, where the company has been struck off for its failure to file annual return
as that would be excessive or inappropriate penalty for that oversight.
Accordingly, the Appeal is hereby allowed and the order of Registrar by which the name of Company was struck off is set aside subject to
payment of costs of Rs. 25,000/- to be deposited to the Prime Minister's Relief Fund and Rs. 50,000/- to be deposited in the account of the Ministry of
Corporate Affairs. The name of the appellant company is hereby restored in the Register of the Registrar of Companies (RoC), as if name of the
company had not been struck off, subject to their filing all outstanding documents for the defaulting years and completion of all formalities, including
payment of any late fee or other charges, as required under the law, within one month from the date of this order.
The direction for freezing the Bank Account(s) of the Appellant company, if on this ground, shall consequently be also set aside immediately to
enable the company to carry out its business operation. Compliance of this order for restoration shall be made by the respondent with all its
consequential effects within a week of compliance by the appellant.
Let the copy of the order be served to the parties.