Dipak Khanna And Anr. vs Registrar Of Companies And Anr.

The present appeal is filed by Mr. Dipak Khanna and Mrs. Anju Khanna (for brevity the ‘Appellants’), under Section 252 of the Companies

Act, 2013 (for brevity ‘the Act’) against the order of striking off the name of the company M/s Milenium Creations Private Limited (for brevity

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.

It is stated that the company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana on

19.05.2005 under the Companies Act, 1956 with CIN U18101DL2005PTC136417, having its registered office at W- 10A/7 Sainik Farms, New Delhi-

110062.

The Authorized Share Capital of the company is Rs. 1,00,000/- and issued, subscribed and paid up share capital of the Company is Rs. 1,00,000/- .

The main objects of the company are:

To carry on the business of manufacture, trader, importer, exporter, wholesaler, retailer and to act as an agent of all type of garments and made ups.

And other main objects.

As per the notice of non-compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements for

financial years 2011-12 to 2016-2017, 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 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:

a) The copies of financial statements of the company for the financial years from 31.03.2012 to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects Tangible assets of Rs. 32,70,761/- and Cash and Cash equivalents of Rs. 87,646/-.

b) The copy of Bank Statements of the Company of ICICI Bank for the period 01.04.2015 to 15.03.2018 showing various transaction details of the

company and reflecting closing balance of Rs. 24,981/- as on 15.03.2018.

c) The copies of Income Tax Returns filed for the assessment years 2013-14 to 2017-18. The tax paid by the company for A.Y. 2016-17 is Rs.

24,150/-.

d) The Copy of the Lease Agreement dated 03.08.2007 executed between Rajasthan State Industrial Development & Investment Corporation

Limited, Jaipur and appellant company M/s Milenium Creations Pvt. Ltd. for industrial plot situated at F-159, Industrial Area, Chopanki, Bhiwadi,

Rajasthan for period of 99 years commencing from 13.01.2007 for a total consideration of Rs. 14,75,619/-.

e) The Copy of the Sub-Lease Deed dated 06.03.2012 executed between appellant company M/s Milenium Creations Pvt. Ltd. through its Managing

Director Mr. Dipak Khanna and M/s KPH Holdings Pvt. Ltd. for industrial plot situated at F- 159, Industrial Area, Chopanki, Bhiwadi, Rajasthan for

period of 11 months commencing from 01.04.2012 for a monthly rent of Rs. 45,000/-.

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 pending in A.Y 2014-15 of Rs. 3,160/- and Rs.

24,150/- for A.Y. 2016-17 against the Assesse and has no objection if the company is considered for revival.

In this regard, the appellant has submitted that they had filed a rectification request with the Income Tax Department for A.Y. 2016-17 with

respect to the demand of Rs. 24,150/-. The Income Tax Department has vide its order dated 12.07.2017 and Ref. no. CPC/1617/U6/1713712349

rectified the said demand. Hence, the demand for Rs. 24,150/- has been nullified and after rectification, it is not appearing on the Income Tax Portal

also. The appellant has further submitted that the outstanding demand amounting to Rs. 3,160/- for A.Y. 2014-15 has also been duly deposited on

09.03.2019.

The grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company 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 have submitted sufficient evidence mainly the possession of immovable property by the company and further efforts of investment

to be made in immovable property by the company and that it has been in operation during striking off and therefore could not be termed as defunct

company. Thus, taking into consideration the provisions of Section 252 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 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.