Dhawan Leasing Private Limited vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Directors of M/s. Dhawan Leasing Private Limited (for brevity the 'Company'), under Section 252 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, issued vide notification no. ROC / DELHI / 248(5) / STK-7 / 2879 and published on 30.06.2017 by Registrar of Companies, the respondent herein.

It is stated that the company was incorporated as a Private Limited Company, with the Registrar of Companies, NCT of Delhi and Haryana, under the Companies Act, 1956 on 23.03.1994 with CIN U74899 DL 1994 PTC 058042, having its registered office at JG-II/767A, Outer Ring Road, Vikas Puri, New Delhi - 110018, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 30,00,000/- divided into 30,000 equity shares of Rs. 100/-each. The issued, subscribed and paid up share capital of the Company is Rs. 26,10,000/- divided into 26,100 equity shares of Rs. 100/- each, as per the Master Data Annexed.

The main objects of the company are:

(i) To carry on and undertake the business of leasing, hire, purchase, renting and to finance lease operation of all kinds of purchasing, selling, hiring, or letting on hire of all kinds of vehicles, motor cycles, buses, cars, scooters, taxies, plant and machinery, equipments, data processing equipments, office automation equipments, computer, householder articles, land, building, flats, agricultural land, Agricultural produce, consumer durables, electrical and electronic equipments, movable and immovable properties and all kind of other commodities and articles.

(ii) To leasing the industrial, Trading, Transporting, Loan facility and service enterprises by way of lending and advancing money, either with or without security and upon such term and condition as the company may think fir and to guarantee or become sureties for the performance of any agreement or contract entered into by any enterprises, with any financial institution, banks or other parties for obtaining finance whether for its long term capital, working capital or for any deferred payment finance.

(iii) To carry on the business of end leasing.

(iv) To carry on the business of advisors / consultant on hire purchase, lease and other such related matters there to in connection with the business as referred to in sub-clause (1) to (3) above.

(v) And the other main objects.

It is submitted by the appellant that, 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 not filed its Annual Returns and balance sheet since its incorporation, thereby giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off vide STK-7 dated 30.06.2017, by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, with effect from 07th June 2017, upon taking steps in accordance with law and issuing a notification in the Official Gazette. The names of the affected companies were posted on its website.

The Appellant states that in pursuance of a purported Public Notice bearing No. ROC/DELHI/248/STK-5/721 dated 27.04.2017, the Respondent herein had issued notice bearing no. ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017, whereby name of 24280 companies have been struck off w.e.f. 07.06.2017 from the Registrar of Companies. The name of the company is reflected at Sl. No. 5015 of the notice bearing No. ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017. In view of the above notice, name of the company has been struck off from the Register of Companies and the Company has been dissolved.

As per the notice of non-compliance of provisions of the Companies Act, 2013, in respect of filing of annual returns and financial statements for financial years ended 31st March 2016 and 31st March, 2017, 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 financial statement for the F. Y. 2010-11 to 2015-16 alongwith other statutory documents were duly filed by the Company with the ROC between 02.06.2017 to 13.06.2017 (duly reflecting in the Master Data of the Company). The company was active and was carrying out its business during the said period. The said facts are evident from the Bank Account statement of the Company for the relevant period.

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 Sale Deed executed on 07.01.2000 in respect of property measuring 100 square yards, situated at Property Number 21, Municipal bearing No. WZ-66/1, Village Keshavpur, now colony known as Manohar Nagar Colony, New Delhi.

ii. The copy of Bank Statements of the Company of Bank of India for the period 01.05.2000 to 25.08.2017 showing various transaction details of the company and reflecting closing credit balance of Rs. 11,9124.53 as on 25.08.2017.

iii. The copies of financial statements of the company for the financial years from 31.03.2014 to 31.03.2016. The Balance Sheet as on 31.03.2016 reflects Assets in form at Fixed Assets of Rs. 33,85,950.00 and Current Assets in form of Cash and Bank Balances of Rs. 31,866.53.

iv. The copies of Income Tax Returns for the assessment years 2016-17 and 2017-18. The tax paid by the company for A.Y. 2017-18 is Rs. NIL.

The ROC has filed its reply on 03.04.2019 in which it has been stated that the Company had not filed its Financial Statement since Financial Year ended on 31.03.2014. However, the ROC further submits that the company was struck off by the office of ROC, as neither the company was carrying on any operation for a period of two immediately preceding financial years, nor it obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013. That a similar appeal was filed by the appellant company, i.e. 33/252/ND/2018, which was dismissed on 18.04.2018 for non-presentation on the part of the appellant company.

The Income Tax Department has filed its reply on 25.03.2019 in which it has been submitted that the Company has not filed its Income Tax return for A.Y. 2013-14, 2014-15 & 2015-16. However, the Company has filed its Income Tax Return from the FY 2016-17 to 2017-18. The Income Tax Department further states that there are no pending cases against the Company and no cash deposits have been made by the company in the period of demonetization.

The grounds contemplated under section 252 of Companies Act, 2013 are namely, that the company is carrying on business or was in operation at the time of striking off its name, and where it appears "just" to the adjudicating authority that the name of the company is to be restored to the Register of Companies and the Section 252(3) further contemplates that one of the above 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.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) 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 off the name of the company is hereby declared illegal and 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.