Bluelemon Technologies Private Limited vs Union of India

L. N. Gupta, Member (T)

The present Appeal has been preferred by M/s Bluelemon  Technologies Private Limited (hereinafter referred to as the 'Appellant Company') invoking the provisions of Section 252 (1) of the Companies  Act, 2013 for restoration of the name of the Appellant Company in the  register of the Registrar of Companies, NCT of Delhi and Haryana (RoC).

As per the averments made in the Appeal, Bluelemon Technologies Private Limited was incorporated as a Private Limited Company on 30.10.2009 with CIN No. U74900DL2009PTC253645 and having its  registered office at A-68, 2nd Floor, Freedom Fighter Enclave, Neb  Sarai, New Delhi -110068, within the territorial jurisdiction of this  Tribunal.

It is submitted by the Appellant Company that the Main objects of the Appellant Company, inter alia, was as under:

"To carry on in India or elsewhere the business of design, development, testing, Maintenance and distribution of software products, including importing, exporting, buying, selling and exchanging such products and to undertake research and development of IT processes, infrastructure facilities, product designing and development based on product requirements, re-engineering, adaptation and fine tuning of software products and other analysis for optimizing designs and providing strategic solutions in the areas of development, design, testing, training, quality assurance and maintenance and any other professional services relating to software development, software testing and quality assurance of software products."

It is submitted by the Appellant Company that the RoC Delhi and Haryana initiated proceedings under Section 248 of the Companies Act 2013 and struck off the name of the Appellant Company from its  Register vide Notice No. ROC/DELHI/248(5)/STK-7/4865 dated 08-08-2018. The name of the Appellant Company appeared at serial no. 3598 of the list of companies, whose names were struck off due to default in statutory compliances. It is further added that the ROC struck off the Appellant Company's name from the register due to defaults in statutory compliances, namely failure to file Financial Statements & Annual Returns.

The Appellant Company has submitted that it was active since its incorporation. In order to corroborate its submission, the Appellant

I. Copies of the Audited Balance Sheets for the Financial Years 2015-16 and 2016-17,

II. Copies of the Income Tax Returns for the Assessment Year 2018-2019 depicting loss of Rs. 64,085/- in the assessment year, and

III. Bank statement issued by Induslnd Bank showing entries for the period from 01.04.2016-22.03.2018.

That the applicant has submitted that the Respondent No. 1 herein, pursuant to the provisions of Sub-Section (1) and Sub-Section  (4) of the Section 248 of the Companies Act, 2013 read with the Rule 7  of  the  Companies  (Removal  of  Names  of  the  Companies  from  the Register of the Companies) Rules, 2016 published a Show-cause vide Notice No-ROC-DEL/248/STK-5/2018/2912 dated 18-06-2018 on its website along with the list of 31,250 Companies. The list also included the name of the Appellant Company at Serial No. 4725. The ROC had asked all the Companies including the Appellant Company to show cause or object why its name should not be removed from the register of the companies maintained by it for the reasons mentioned therein.

It is submitted by the Appellant Company that consequent upon receipt of aforesaid STK-5 notice, it had taken curative steps to file all  the pending statutory returns with the office of the ROC/ Respondent No.1 on 01.08.2018. Copies of the Challans filed for the Financial Year 2015-16 and 2016-17 have been placed on record on pages 41 to 44 of the Appeal. The scanned copies of the Receipts are reproduced overleaf:

Per Contra, the RoC in its report dated 31.05.2021 has submitted the following :

"4. That the company was incorporated on 30.10.2009 and the last Annual Return and Balance Sheet submitted by the company to this office, before it was considered to be struck off, pertain to the financial year that ended on 31.03.2017. Moreover, no subsequent documents had been filed by the company with this office to obtain the status of a "Dormant Company" under Section 455 of the Companies Act, 2013. Hence, this office had reasonable cause to believe that the company was not in operation, and therefore, the name of the company was considered for striking off from the Register of Companies."

The appellant has also placed its Master Data downloaded from the MCA Website reflecting that the last balance sheet was filed on 31.03.2017. The Master Data of the Company is reproduced below:

Heard the parties, perused the Appeal records and reply filed by the Respondent No.1/ROC. During hearing, the Appellant Company reiterated the arguments as averred in the Appeal.

We note that the present Appeal has been filed by Appellant  under Section 252(1) of the Companies Act, 2013, the contents of which are reproduced below :

Appeal to Tribunal -

"(1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies:

Provided that before passing any order under this section, the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned:

Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period of three years from the date of passing of the order dissolving the company under section 248, file an application before the Tribunal seeking restoration of name of such company."

While perusing the reply of the ROC dated 31.05.2021, we observe that the respondent no. 1/ROC in its reply has submitted :

"6. That the Respondent most respectfully submits that the action of striking off of the present Company was legal and justified and was the result of the operation of the law, as the company was not carrying on any operations for a period of two immediately preceding financial years (as indicated by non-filing of the financial statements of the Company for two or more years)".

(Emphasis supplied)

The aforesaid averment of ROC shows that the action in terms of the striking off the name of the Appellant Company on 08-08-2018 from its register was taken by ROC due to non-filing of the financial statements by the Appellant Company for immediate two consecutive years.

We, however, observe from the Master Data of the Appellant Company, Receipts placed by the Appellant on record, and Reply filed by the RoC/ Respondent No.1 that the last financial statements shown as filed is of the Financial Year ending 31.03.2017, which was the last financial year due before the date of the striking off the Appellant Company. Therefore, in our considered view, the ground of non-filing of the financial statements for two or more years for striking off the name of the Appellant Company does not exist and the action of ROC is not justified.

In sequel to the above, the Appeal is Allowed subject to payment of costs of Rs.25,000 (Twenty Five Thousand) only to the Prime Minister's Relief Fund, and Rs 25,000 (Twenty Five Thousand) only to the Ministry of Corporate Affairs, the proof of which will be furnished by the Appellant to the Registry of this Tribunal and ROC within 07 days. The Registrar of this Tribunal shall maintain the information about such deposits in a separate E-register.

The  restoration  of  the  Appellant  Company's  name  in  the Register will be subject to completion of all formalities as required by law. The name of the Appellant Company shall then stand restored in the Register of the Registrar of Companies (RoC), as if its name had not been struck off.

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 operations. Compliance of this order for restoration shall be made by the Respondent No.1 with all its consequential effects within one week of all compliances made by the Appellant Company.

Let the copy of the Order be served to the Parties.