Dwarka Investments Pvt Ltd vs Registrar Of Companies Jammu And Kashmir

Harnam Singh Thakur, Member (Judicial)

This Company Petition has been filed by Appellant-Dwarka Investments Private Limited, CIN: U45201CH2004PTC027178 through its Shareholder, Mr. Parveen Dhoundiyal under Section 252(3) of the Companies Act, 2013 for restoration of name of the struck off company in the Register of Companies, maintained in the office of the Registrar of Companies, Jammu and Kashmir. It is stated that the name of the company was struck off pursuant to the copy of notice of Form No. STK-5 dated 26.04.2017. Copy of notice of Form No. STK-5 is attached with petition as Annexure-7. Copy of Master Data of the company is attached with the petition as Annexure-3.

It is contended that the company has not submitted the Financial Statements and Annual Returns before the Registrar of Companies for the period subsequent to the year ending 31.03.2014. Copies of the financial for the year 2014-15 to 2018-19 and with Income Tax Return for the year 2015-16 to 2019-20 are enclosed as Annexure-5 and 6 respectively with the main petition.

It is submitted that the petitioner company, with its registered office in New Delhi, inadvertently missed to file the financial statements and annual returns with the RoC, and it will be unfair to the company and its creditors if the name of the company is struck off. Hence, the petitioner prayed for passing of an order for restoration of the name of the Appellant Company.

Notices were issued to the Registrar of Companies, Jammu and Kashmir and Income Tax Department. However, none appeared on behalf of ROC despite service. The affidavit of service for the same was filed vide Diary No. 01537/01 dated 26.03.2021 and compliance affidavit with respect to intimation of next date of hearing to Roc was filed vide Diary No. 01537/4 dated 28.03.2022. Since, none appeared on behalf of RoC thus, it is presumed that there is nothing adverse to say against Petitioner Company by RoC.

It has been stated by the Income Tax Department in its report filed vide Diary No. 01537/2 dated 17.02.2022 through Virender Kumar Rathee, Income Tax Officer, Ward 1(1), New Delhi that the company has filed the Income Tax Returns from the Assessment Year(s) 2008-09 to till date as per ITBA. Learned counsel for the said department has stated as per order dated 09.03.2022 that there is no demand outstanding and no proceeding is pending against the company and IT Department has no objection for the restoration of the name of the company in the Roc.

Further, it is stated that the company is neither a shell company nor any illegal transaction has taken place in the company. As per order dated 09.03.2022, the applicant company was directed to furnish affidavit to the effect that at the time of striking off the name of the company, the company was carrying on business or was in operation. To the said order, compliance affidavit has been filed vide Diary No. 01537/4 dated 28.03.2022 where the Appellant has submitted that the company has purchased a land admeasuring 3 Kanals and 5 marlas situated at Shahidi Chowk, Jammu, which is worth approximately ₹ 3 Crores and the same is reflecting in all the balance sheets of the company under the head of 'Inventories', including of the year 2015-2016, 2016-2017, 2017-2018, 2018-2019, etc. and the land is not a fixed asset of the company but is inventory as recorded in the Balance Sheets, therefore, the same was obtainable for carrying out the business of the company. It is further submitted that since the object of the company is to purchase and further lease or develop or sell the land and the aforementioned land available being available in the inventory of the company, therefore, this clearly shows that the company was a going concern as on 26.04.2017, when the name of the company was struck off. That the company has duly filed its Income Tax Return upto the Assessment period of 2019-20.

After considering the submissions of the learned counsel on behalf of the petitioner and on a perusal of the report of Income Tax Department, the financial statements submitted by the petitioner company, and other documents placed on record, this bench holds that applicant company is a running concern and it would be just, equitable and fair in the interest of justice to provide an opportunity to the company to rectify its defaults and continue the business.

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

a. The Registrar of Companies, Jammu and Kashmir, the respondent herein, is directed to restore the original status of the Petitioner 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 Petitioner Company is directed to file all pending statutory documents including annual accounts and annual returns along with prescribed fees/additional fee/fine as decided by Registrar of Companies, Jammu and Kashmir within 45 days from the date on which its name is restored on the Register of Companies maintained by the Registrar of Companies, Jammu and Kashmir.

c. The petitioner is directed to deliver a certified copy of this order to the Registrar of Companies, Jammu and Kashmir within thirty days of the receipt of this order.

d. On such delivery and after due compliance with the above directions, the Registrar of Companies is directed to publish the order in the official gazette under his 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, Jammu and Kashmir to take appropriate action in accordance with law, for any other violation/offences, if any committed by the Petitioner 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 ₹20,000/- (Rupees Twenty 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.

The CP No.145/ Chd/J & K/ /2021 is disposed of accordingly.

The Registry is directed to send e-mail copies of the order forthwith to all the parties including the counsel.

Certified copy of this order, if applied for, be issued upon compliance with all requisite formalities.