Devatwal Warehouse Private Limited vs Registrar Of Companies Delhi & Haryana

Harnam Singh Thakur, Member (Judicial)

This Company Petition has been filed by the Applicant, Devatwal Warehouse Private Limited (hereinafter referred to as the ‘Applicant/Company’), through its Shareholder Mr. Joginder Singh, who is stated to be 50% shareholder of the Applicant/Company. The present petition under Section 252(3) of the Companies Act, 2013 (hereinafter referred to as the ‘2013 Act’) has been filed against the public notice in Form No.STK-5 dated 18.06.2018 (Annexure 1) published by Registrar of Companies, NCT of Delhi and Haryana, respondent No.1, indicating its intention to remove/strike off the name of the Company from the Register of Companies maintained by it unless a cause is shown to the contrary within 30 days from the date of publication of the said notice due to default made by Applicant/Company in statutory compliances, namely, failure to file financial statement & annual returns for preceding financial years. Thereafter, respondent No.1 initiated proceedings under Section 248 of the 2013 Act for striking off the name of the company from the Register of Companies maintained by it and accordingly, vide public notice in Form STK-7 dated 08.08.2018 (Annexure 2), struck off the name of the company from the Register of Companies. The name of the Applicant/Company appears at Serial No.5352. In the present application, amongst certain other reliefs, a direction has been sought against respondent No.1 to set aside the proceedings against the Applicant/Company and to restore the name of the company in the register of companies maintained by Registrar of Companies, NCT of Delhi and Haryana.

The brief facts, as stated in the petition, are that Applicant/Company was incorporated under the Companies Act, 1956 on 22.10.2012, vide CIN:U63030HR2012PTC047485, and the same is registered with the office of Registrar of Companies, NCT of Delhi and Haryana. Its registered office is at Village and Post-Khijuri, Rewari, Haryana- 123302. The Applicant/Company is involved in the business to establish, purchase or otherwise acquire run, conduct and operate a cold storage warehouse, dry, storage warehouse, bonded ware houses for the preservation, storage and treatment of merchandise, food products, farm products, furniture and all other articles whether manufactured or not, both the foreign and indigenous production or manufacture etc. The main objections of the company have been set out in the Memorandum of Association of the Company (Annexure A-5). There are two shareholders of the applicant/company namely, Joginder Singh and Bed Ram, having equal shareholding in the Applicant/Company, who are also the directors of the Applicant/Company. Copies of list of shareholders and list of directors have been annexed as Annexure 3 and Annexure 4, respectively.

It has been submitted on behalf of the Applicant/Company that it has substantial assets and liabilities which are depicted from its financial statements (Annexure 7 colly) and the substratum of the company also continues to remain intact. It is further submitted that the Applicant/Company is carrying out its business operations and is following its objects. According to the applicant, the financial statements of the company depicts that the company is a going concern and is continuously carrying out its business operations.

It is contended on behalf of the Applicant/Company that since the Directors of the Company were not aware of the provisions of the 2013 Act regarding e-filing of the financial statements and Annual Return, therefore, after the introduction of MCA System, the company could not file statutory returns and the name of the company was struck off by respondent No.1 from the Register of Companies, maintained by it. It is further contended that the company owns a valuable immovable property in its name for the purpose of its business activities, which is situated at Khijuri Village, Dharuhera Tehsil, Rewari District and the company is using the same for its business and commercial purpose and as a result of which, the company assumes importance for its stakeholders.

Under the circumstances mentioned hereinabove, it has been prayed by the applicant that the name of the Company be restored and the Applicant/Company undertakes that in the event of revival of the Company and restoration of its name in the Register of Companies maintained by respondent No.1, the Applicant/Company shall file all its pending statutory documents and pay the additional fee as applicable with the office of Registrar of Companies.

Notices were issued to the Registrar of Companies, NCT of Delhi & Haryana and Income Tax Department, vide order dated 18.11.2021. The Registrar of Companies, NCT of Delhi and Haryana filed its report vide Diary No.01178/3 dated 21.07.2022 wherein it has been submitted that the Applicant/Company has not submitted any annual return and balance sheet since its incorporation and moreover, no subsequent documents had been filed by the Applicant/Company to obtain the status of a ‘Dormant Company’ under Section 455 of the 2013 Act. Thus, respondent No.1 had reasonable cause to believe that the company was not in operation and therefore, the name of the Applicant/Company was considered for striking off from the Register of Companies.

It is further stated in the report of Registrar of Companies that it had issued notice in the form of STK-1 on 02.06.2018 intimating the company and the directors of the company at their registered office about the aforesaid defaults, providing them a fair opportunity to respond and subsequently, a public notice for the same in the form of STK-5 dated 18.06.2018 was also issued and thereafter, the name of the company was struck off as per the provision of Section 248(1)(c) of the 2013 Act read with Rule 9 of the Companies (Removal of Names of Companies from Register of Companies) Rules, 2016, vide notice in form STK-7 dated 08.08.2016. Thus, it is submitted on behalf of Registrar of Companies that the action of the striking off name of the company was legal and justified and was the result of the operational of the law, as the company was not carrying on any operations for a period of two immediately preceding financial years. Thus, it has been urged before this Bench by the Registrar of Companies that the Applicant/Company be directed prove that the Applicant/Company was carrying on the business and was in operation at the time when its name was struck off. Further, it has been prayed that if this Bench considers the application for restoration of the name of the company, necessary documents may be passed to the Applicant/Company to file all the pending Annual Returns and Balance Sheets with respondent No.1 along with the requisite fee and additional fee as prescribed in the Rules.

Income Tax Department, respondent No.2, also filed its report, vide Diary No.01178/2 dated 31.05.2022, wherein it has been stated that as per the record available on ITBA/ITD/efilling portal, there is no demand/refund pending in the case of M/s Devatawal Warehouse Pvt. Ltd. (PAN:AAECD4389E). It is further stated in the said report that no assessment proceedings for any A.Y. is pending against the said entity and that Income Tax Department has no objection in the restoration of the company- M/s Devatawal Warehouse Pvt. Ltd.

When the matter was listed on 15.07.2022, the Applicant/Company was directed to prove that at the time when its name was struck off, it was carrying on the business and/or was in operation. In compliance thereof, rejoinder was filed vide Diary No.01178/4 dated 24.08.2022, wherein it has been stated that Applicant/Company was indeed in business or operation at the time of its name being struck off. It is further stated that the independently audited financial statements of the Applicant/Company for the FY ending 31.03.2018, 31.03.2019 and 31.03.2020, while may not show any substantial revenue, the same unequivocally clarifies that the Applicant/Company had substantial assets and liabilities and the substratum of the company also continues to remain intact. Further, not only this, the Applicant/Company also owns a valuable immovable property in its name, used for the purposes of its business activities, as mentioned in the original appeal.

We have heard learned counsel for the Applicant/Company and learned Senior Standing Counsel for the Income Tax Department. We have also carefully perused the record of the case file as well as the reports submitted by respondent No.1, Registrar of Companies, NCT of Delhi and Haryana, and respondent No.2, Income Tax Department.

After hearing and considering the submissions of the learned counsel on behalf of the Applicant/Company and on perusal of the record available before us, we are of the considered view that Income Tax Department has no objection in restoration of the name and the company was carrying on the business when its name was struck off. In these circumstances, it would be just, equitable and fair to provide an opportunity to the Applicant/Company to rectify its defaults and continue the business, in the interest of justice.

Accordingly, in exercise of the powers conferred on the Tribunal under Section 252 of the Companies Act, 2013, the petition is allowed with the following directions:-

a. The Registrar of Companies, NCT of Delhi and Haryana, respondent No.1 herein, is directed to restore the original status of the Applicant/Company as if the name of the company had not been struck off from the Register of Companies with the resultant and consequential actions like changing status of petitioner company from ‘struck off’ to ‘active’.

b. The Applicant/Company is directed to file all the pending statutory documents including annual accounts and annual returns along with prescribed fees/additional fee/fine as decided by Registrar of Companies, NCT of Delhi & Haryana within 45 days from the date on which its name is restored in the Register of Companies maintained by the Registrar of Companies, NCT of Delhi and Haryana.

c. The Applicant is directed to deliver a certified copy of this order to the Registrar of Companies, NCT of Delhi & Haryana within thirty days of the receipt of this order.

d. On such delivery and after due compliance of the above directions, the Registrar of Companies is directed to publish the order in the Official Gazette under its office, name and seal.

e. This order is confined to the violations, which ultimately led to the impugned action of striking off the name of the company, and it will not come in the way of Registrar of Companies, NCT of Delhi and Haryana to take appropriate action in accordance with law, for any other violation/offences, if any committed by the Applicant/Company prior to or during the period when the name of the company remained struck off.

f. The Income Tax Department may take necessary action as per law for non-filing or belated filing of the Income Tax Returns of the Company for any of the assessment years and also for recovery of outstanding demand, if any.

g. This order will be subject to payment of costs of ₹50,000/- (Rupees Fifty Thousand Only) to be paid in favour of “Pay and Accounts Officer, Ministry of Corporate Affairs” within three weeks from the receipt of the duly certified copy of this order.

Thus, CP No.84/Chd/HRY/2021 is allowed and disposed of accordingly. Registry is directed to send copy of this order through e-mail to all the parties including the counsel. Registry is also directed to issue certified copy of this order to the concerned parties.