Brijesh Tyagi And Anr. vs Registrar Of Companies And Anr.

This appeal is filed by the erstwhile Directors of the company M/s Omega Nutria Essentials 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 22.05.2012 having CIN U7U74900DL2012PTC236277.

The company is having registered office at K-11, Rear II Floor, Kailash Colony, New Delhi-110048.

Authorized share capital of the Company is Rs.1,00,000/-divided into 10,000 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 establish, start, operate, propagate, manufacture, produce, grow, cultivate, process, collaborate, import, export, sell, purchase or otherwise deal in

and marketing or multi marketing of health and nutrition products, food or food supplement, whether medicinal or aromatic, through plants or otherwise

or through usual or unusual herbs, planation or tuber crops, fruits, mushroom , nuts, fresh or canned, dehydrates or frozen fruits, vegetables r any

genetic combination thereof, fast foods, marine and sea foods, energy foods, bee keeping honey and its processing, sericulture and its processing and

to operate farming under satellite contractual buy-back schemes including cultivation and processing and medicinal and aromatic plants, usual and

unusual rare herbs, recycling of organic waste, fermentation and membrane process technologies,. Moreover to operate in the field of dieses

functional nutrition, hormonal balancing nutrition, medi nutritional salons, medi nutritional resorts, medi nutitional tv channels, medi Nutri hospitals,

imports and export of rare plants, algae and animals of known nutritional values, medi nutria education films production and selling and e commerce

and also nutritional fineness events.

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 HDFC Bank, from 28.06.2016 to 28.04.2017, reflecting various transactions done by the

company during the period of striking off and having NIL closing balance.

ii. The copies of financial statements of the company for the financial years from 31.03.2014 to 31.03.2018. The Balance Sheet as on 31.03.2017

reflects tangible fixed assets of Rs. 11,49,720/-and Loss of Rs. 84,383/-

iii. The company has incurred employee benefit expense of Rs. 2,54,714/- for the financial year ending on 31.03.2017.

iv. The copies of Income Tax Returns filed for the assessment years 2013-14 to 2018-19 as NIL return.

v. The copy of agreement for sale of business dated 31.01.2013 between Illuminata wellness private limited as seller and the appellant company as

purchaser, including the lease to the premises, the goodwill of the business, sellers rights and all assets owned and used by the seller for total

consideration of Rs. 60,00,000/-

vi. The copy of lease deed dated 16.05.2013 between Mr. Sanjiv Kohli & Mr. Sandeep Kohli as lessors and the appellant company as lessee for the

property situated at E-32, New Delhi, Part II, New Delhi admeasuring about 1800 square feet for the term of sixty months for annual rent of Rs.

6,00,000/-

vii. The copy of joint venture agreement dated 01.05.2013 between the appellant company and nail spa trainers and distribution private limited.

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. 1,56,690/- for the A.Y 2016-17 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 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.