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Judgment
This Appeal has been filed on 02.09.2022 by Mr. Gagan Goyal (hereinafter as Appellant no.2), Director of Chandra Sheela Goyal Builders And Developers Private Limited under Section 252(3) of the Companies Act, 2013, (hereinafter referred as the Act) praying for restoration of the Company’s name i.e. Chandra Sheela Goyal Builders And Developers Private Limited in the Register of Companies maintained by Registrar of Companies, Uttarakhand (hereinafter referred as “ROC/Respondent”).
Chandra Sheela Goyal Builders And Developers Private Limited (hereinafter called as ‘Company’) was incorporated on 16.02.2009 under the Companies Act, 2013 bearing CIN: U70102UR2009PTC032783. The registered office of the company is at Bhaniawala, Bhaniyawala, Dehradun-248144. The Company is carrying on the business as Civil Contractors and Builders for all kinds of buildings and civil structures, roads and bridges and the business of promotion, acquisition and development of land, houses, buildings for residential, commercial, industrial or other usages in the form of apartments, flats, complexes, industrial buildings/ sheds. The Authorized Share Capital of the Company is Rs.2,00,000/- consisting of 20,000 equity shares of Rs.10/- each. Issued, subscribed and paid-up Share Capital is also 20,000 equity shares of Rs.10/- each amounting to Rs.2 lakh.
It is stated that the Company has defaulted to file the statutory returns in time, such as Annual Return and Balance Sheet since 2015, as the business of the company was gone into continuous loss for the last four years ending 2018, 2019, 2020 and 2021, which business was affected due to some market forces and recent Covid spikes. Consequently, the ROC, Uttarakhand has initiated proceedings under Section 248(5) of the Companies Act, 2013 to strike off the name of the Company from the Register maintained by the ROC, Uttarakhand on suo moto basis.
It is also stated that the Appellant Company did not receive any show cause notice, nor was afforded any opportunity of being heard, before the ROC had proceeded to issue notice under Section 248(5) of the Companies Act 2013 publishing the name of the Appellant Company in the notification dated 28.08.2018, which was published in the Official Gazette of India dated 01──07 September, 2018. The list of struck off companies issued by the Respondent/ ROC, Uttarakhand, which is annexed as Annexure-7, page 47 with the present application and the name of the company appear at Serial No.319 of the said list. The Directors of the Company came to know the status of the Company has been marked as ‘struck off’ from the website of the Registrar of Companies while checking the Company’s Master Data.
In its instant application, the company pleaded for restoration of the name of the company in the register of RoC, taking following grounds.
The Appellants submitted that they were duly active in doing business activities and were continuously engaged in the business in the best possible efficient and prospective manner, and further are equally interested in carrying on the business under the same name and style, but due to some market forces and recent Covid spikes
The Appellants also submitted that the annual turnover of the Appellant Company, as per the Audited Balance Sheet, for the Financial Year, 2015-16 was Rs.24,45,355/- and 2016-17, 2017-18, 2018- 2019, 2019-20 and 2020-21 were Rs.0/-, that Company was doing business as per the main objects mentioned in the Memorandum of Association, which is annexed as Annexure-3 with the application. A copy of the audited Balance Sheet and Profit and Loss account for the FY 2015-16 and 2016-17 showing profits of Rs.56,178.50/- and Rs.270/- & F.Y. 2017-18, 2018-19, 2019-20 and 2020-21 of the Appellant Company, showing continuous loss for four years ending 2018, 2019, 2020 and 2021 were 0/-, 0/-, (4,24,316/-), and (1,18,480/-), but even the Appellant company showing continuous loss last four years, still having the enthusiasm to run the company despite the continuous loss and other aspects showing operation ability of the Company in Balance sheet and profit loss A/c along with Income Tax returns of A.Y. 2016-17, 2017-18 and 2018-19, which are annexed as Annexure- 8.
It is further submitted that the Appellant Company has been carrying on its operations on a going concern basis since its incorporation. Hence, for the sole reason that inadvertently the Appellant Company failed to file the statutory returns in time, striking off of the name of the Appellant Company from the Register of Companies maintained by the Respondent would result in bringing the working of an operating Company to stand still, thereby adversely affecting not only the Appellant Company but its shareholders, creditors, Sundry debtors, employees and other stakeholders and dealing parties.
It is also stated that the present strike off, will result in the three folded loss, which includes the Taxes that are paid to the Government, the loss of the employment by the casual employees of the Appellant who are required by time to time will also result in the indirect loss of employment, who are indirectly associated with the Company, and the Shareholders and Appellant itself in the form of the Investments made and goodwill earned in these years from hard work as otherwise the Shareholders and Directors will have to start from scratch in establishing another company which will be very harsh on the various stakeholders of the Appellant as well.
The Applicants have further stated that the current investments of Rs.71,85,019/-, which comprises of fixed deposits of Rs.60,00,000/- and accrued interests of Rs.11,85,019/- and Cash and Bank Balances of Rs.1,33,595.93/-. Whereas, the Bank account is suspended because of the Company was Struck-off and no further transaction could be made to run the business. The Company wanted to run the business, it is quite capable as the above figures are as per the last audited balance sheet of Financial Year ending 31st March, 2021 showing current investments and cash & bank balances in the Asset side in note no.13 & 16 respectively of M/s Chandra Sheela Goyal Builders And Developers Private Limited. The Current Investments mainly comprises of Fixed Deposits which can be used for business operations and to ensure the growth of the business. The Statements of Fixed Deposit is annexed as Annexure-9 with the present application.
Further, it is stated that the Applicant Company could not file its compliances due on time because the company status is showing as Strike off in the Master data.
The Applicant Company has also convened its Annual General Meeting regularly, therefore, it cannot be concluded that the Company is a defaulter or non-functional or a defunct Company. The Company has plans to expand its operations further and in case of need of further investment it is planning to invite funds by raising institutional finance. In case the company is not revived and remains struck off, it will be its unnatural death.
It is also stated by the Appellants in regard to the non-filing of returns with the respondent due to continuous loss incurred by the Applicant Company. But now the company is proposing to continue its business through new business opportunities emerging after the pandemic situation.
Further, it is submitted that the applicant company have not given any long term loans and advances as per the last audited balance-sheet for the F.Y. ending on 31st March, 2021 showing in assets side.
It is further submitted that the Company and its Directors were not received the notice from Registrar of Companies in form STK-5 pursuant to Section 248(1) of Companies Act, 2013 mentioning its intention to remove the name of the Company from the Register of Companies.
The ROC filed its report vide letter dated 25.04.2023 vide Diary No.1509 dated 24.05.2023 submitting that following observations :
“4.1- That as per MCA21 record, the DIN of the following Directors of the appellant company i.e. Chandra Sheela Goyal Builders and Developers Private Limited, are showing as ‘Deactivated’ :-
(1) Gagan Goyal DIN No.02491905
(2) Rajan Goyal DIN No.02493581
(3) Chandra Prakash Goyal DIN No.02493627
(4) Monika Goyal DIN No.02493655
(5) Rani Goyal DIN No.02497114
4.2-(i) That, as per the office record, the company has not filed the Annual Return and Balance Sheet since 2015.
(ii) That the respondent has Struck Off the name of the company from the Register of Companies on Suo-Moto basis on 28.08.2018 due to non-filing of Annual Return and Balance Sheet since 2015.
(iii) That consequent to striking off the name of the company, said petition is filed for restoration of the name of the company U/s 252 of the Companies Act, 2013.
4.4- The company has not been filed the Statutory Return i.e. Annual Return and Balance Sheet since 2015 onwards by way of online on the MCA portal along with requisite fee in the office of the Registrar of Companies-cum- Official Liquidator, Uttarakhand for the interest of stakeholders.
Relief(s) sought:
(a) It is, therefore, humbly prayed that the said appeal may be decided on merit subject to filing of all the pending Financial Statements along with additional fees as per the requirement of Companies Act, 2013/1956.
(b) The cost may be imposed on the petitioner/ company and its directors for default in filing of the statutory documents under the Companies Act, 2013/1956.
(c) Any other directions as may be deemed fit by the Tribunal in the facts and circumstances of the present case and in the interest of justice.
Report from the Income Tax Department is received on 06.01.2023 vide diary no.329. The same is reproduced as under :-
That as per the digital Database of the Department, the appellant Company has been allotted PAN No.-AADCC6354M and the status of Income Tax Return of the Company from A/Y - 2011-12 to 2022-23 shows that the Company has filed its Income Tax Returns for all the assessment years since its incorporation except for A/Y’s - 2014-15, 2019-20 & 2022-23 (no record found as per digital database for these three assessment years).
However, at this juncture it is respectfully submitted that it is mandatory for every company to file its return of income even in case of loss or if its income is nil as per the provisions of Section 139 of Income Tax Act, 1961 and there is neither any whisper not any reason has been given for not filing the returns of income for the 3 assessment years referred in the above paragraph.
That the ITR details of the Company as per the ITBA Portal of the Department are as under :-
Sl.
No.
Assessment Year
Income Returned (Rs.)
Date of filing
1.
2011 -12
0
31.03.2012
2.
2012-13
50510
31.03.2013
3.
2013-14
294740
27.09.2013
4.
2014-15
-
Not filed as per system
database
5.
2015-16
231650
30.01.2016
6.
2016-17
56180
29.03.2018
7.
2017-18
270
29.03.2018
8.
2018-19
0
27.10.2018
9.
2019-20
-
Not filed as
per system database
10.
2020-21
424320
24.03.2021
11.
2021-22
0
31.03.2022
12.
2022-23
-
Not filed as per system database
That on a perusal of the petition, it is seen that there were five Directors of the Company namely Mr. Gagan Goyal, Mr. Chandra Prakash Goyal, Mrs. Monika Goyal, Mrs. Rani Goyal and Mr. Rajan Goyal. The PAN of all directors were searched on departmental system. The PAN of Mr. Gagan Goyal is AGEPG2006Q and the ITR details of Sh. Gagan Goyal is as under :-
Sl.
No.
Assessment
Income Returned
(Rs.)
Date of filing
1.
2011-12
163600
06.03.2012
2.
2012-13
141690
28.10.2013
3.
2013-14
770890
28.10.2014
4.
2014-15
668070
25.03.2015
5.
2015-16
601990
29.03.2016
6.
2016-17
454090
29.03.2018
7.
2017-18
2616000
29.03.2018
8.
2018-19
2471840
30.03.2019
9.
2019-20
3867420
30.07.2020
10.
2020-21
4400430
16.03.2021
11.
2021-22
1064090
03.03.2022
12.
2022-23
1064090
03.03.2022
That the PAN of Mr. Chandra Prakash Goyal, is APYPG6799M and the ITR details of Mr. Chandra Prakash Goyal are as under:-
Sl.
No.
Assessment Year
Income Returned (Rs.)
Date of filing
1.
2011-12
188540
31.03.2012
2.
2012-13
-
-
3.
2013-14
312800
19.03.2014
4.
2014-15
350000
23.03.2015
5.
2015-16
512960
31.03.2016
6.
2016-17
398830
28.03.2018
7.
2017-18
439600
28.03.2018
8.
2018-19
442310
30.08.2018
9.
2019-20
530680
31.08.2019
10.
2020-21
819370
30.03.2021
11.
2021-22
578790
31.12.2021
12.
2022-23
2847140
27.10.2022
That the PAN of Mrs. Monika Goyal, is APYPG6798L and the ITR details of Mrs. Monika Goyal are as under :-
Sl.
No.
Assessment Year
Income Returned (Rs.)
Date of filing
1.
2011-12
152868
31.03.2012
2.
2012-13
-
-
3.
2013-14
Invalid return
28.10.2014
4.
2014-15
219580
25.03.2015
5.
2015-16
269070
29.03.2016
6.
2016-17
211740
29.03.2018
7.
2017-18
275520
29.03.2018
8.
2018-19
382400
29.08.2018
9.
2019-20
385370
28.08.2019
10.
2020-21
415433
27.12.2020
11.
2021-22
431100
25.12.2021
12.
2022-23
364550
28.07.2022
That the PAN of Mrs. Rani Goyal, is APYPG3844F and the ITR details of Mrs. Rani Goyal are as under :-
Sl.
No.
Assessment
Income Returned (Rs.)
Date of filing
1.
2011-12
237730
31.03.2012
2.
2012-13
251350
31.03.2013
3.
2013-14
338000
19.03.2014
4.
2014-15
505000
23.03.2015
5.
2015-16
1067380
31.03.2016
6.
2016-17
507800
31.03.2017
7.
2017-18
532400
28.03.2018
8.
2018-19
542500
28.08.2018
9.
2019-20
543000
30.08.2019
10.
2020-21
-
-
11.
2021-22
1446420
31.03.2022
12.
2022-23
1043220
30.07.2022
That the PAN of Mr. Rajan Goyal is ACDPG4420H and the ITR details of Mr. Rajan Goyal are as under :-
SI.
No.
Assessment Year
Income Returned (Rs.)
Date of filing
1.
2011-12
372270
31.03.2012
2.
2012-13
863860
30.09.2012
3.
2013-14
1877740
28.02.2014
4.
2014-15
1448280
23.03.2015
5.
2015-16
899700
31.03.2016
6.
2016-17
718000
31.03.2017
7.
2017-18
990700
28.03:2018
8.
2018-19
1025110
29.03.2019
9.
2019-20
2234190
31.01.2020
10.
2020-21
631170
15.02.2021
11.
2021-22
1108210
12.03.2022
12.
2022-23
2006790
05.11.2022
The income tax return filing status for A/Y - 2011-12 to 2022-23 of the directors of company shows that the directors are filing ITRs regularly except A/Y - 2012-13 by two directors i.e. Sh. Chandra Prakash Goyal and Smt. Monika Goyal.
That it is the admitted case of the appellant that its name has been struck off from the Register of Companies maintained by the Registrar of Companies as the Company had failed to file the statutory returns as contemplated under the Companies Act, in time.
That as per the data base of the Department, in the case of appellant Company, a demand of Rs.16,580/- is still outstanding for A/Y- 2010-11. As per CDBT letter F.No.225/423/2017-ITA-II dated 29.12.2017 read with letter of even number date 18.04.2018, photocopies of the letters dated 29.12.2017 and 18.04.2018 are annexed as Annexure No. CA-1.
That the Central Board of Direct Taxes vide their abovementioned letters dated 29.12.2017 and 18.04.2018 has directed income tax authorities to file restoration request/ appeal in the case of pending assessment/penalty/prosecution including instances of pendency of outstanding tax liabilities. Since, this case involves outstanding demand of Rs.16,580/-, the Department has no objection if the name of the appellant company is restored.
Both the above reports from ROC as well as Income Tax Department have been considered in the hearing held on 24.05.2023. ROC has not raised any objection on restoration of the company and only prayed that the instant appeal may be decided on merit subject to filing of all the pending Financial Statements along with additional fees as per the requirement of Companies Act, 1956 and the cost may be imposed on the petitioner company and its directors for default in filing of the statutory documents under the Companies Act, 2013.
In the report of the Income Tax Department also, it is stated that the instant case of the petitioner company involves outstanding demand of Rs.16,580/-, and hence, the Income Tax Department also has no objection if the name of the appellant company is restored. The Ld. Counsel for the petitioner company has also explained with details of present financial resources and assets available with the company to show that the company is capable of running the business and it is in the public interest to revive the company to prevent any loss of employment and loss to shareholders and directors and also to clear the outstanding taxes of the Government, especially income tax of Rs.16,580/- and further contribute in revenue of Government by paying taxes by carrying out and developing the business of the appellant company after its revival.
Considering the facts and circumstances and response from the concerned statutory authorities connected with the functioning of the companies as discussed in aforesaid paras, we find it in the interest of justice to allow the instant petition to the extent of directing the ROC, Uttarakhand, Dehradun to restore the name of the applicant company on the Register of Companies and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the Register of Companies and take such other and further action against the Petitioner Company in accordance with the statutory provision.
The restoration of the Company’s name will be subject to the payment of the cost of Rs.25,000/- (Rupees twenty five thousand only) through online payment in www.mca.gov.in under miscellaneous fees by mentioning particular as “Payment of cost for restoration of the company pursuant to orders in CP No.69/ALD/2022.”
This Petition is disposed of on the terms directed above. The ROC shall give effect to this order only after perusal of the compliance report of the cost imposed. The Company is directed to file all the statutory documents including Annual Accounts and Annual Returns along with the prescribed fees and additional fees as decided by the ROC, Uttarakhand, Dehradun within 45 days from the date on which its name is restored on the register of companies maintained by the Registrar of Companies, Uttarakhand, Dehradun. They shall also fulfil all the other relevant statutory compliances, such as under the Companies Act, 2013 the Income Tax Act, 1961, etc., in accordance with law.
The appellant company is directed to deliver a certified copy of this order with ROC, Uttarakhand, Dehradun within 30 days of the receipt of the order.
Certified copy of the order be issued upon making an application in the registry of this Tribunal by the appellants/ petitioners.
CP No.69/ALD/2022 stands disposed off accordingly.