Dynami Finvest Services Private Limited vs Registrar Of Companies And Anr.

Dr. Deepti Mukesh, J

This appeal is filed by the company, Dynamic Finvest Services Private Limited (for brevity the ‘Company’), through its Director Mr. Surinder

Singh under Section 252(1) 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 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.

The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of

Delhi and Haryana on 23.03.1995 having CIN U74899DL1995PTC066684.

The company is having registered office at 507 A, Rohit House, Tolstoy Marg, New Delhi-110001. The Authorized share capital of the Company is

Rs.3,25,00,000/- divided into 32,50,000 equity shares of Rs.10/- each and issued, subscribed and paid up share capital of the Company is

Rs.1,99,65,000/- divided into 19,96,500 equity shares of Rs.10/- each.

The main objects of the company are:

i. To assist, carry on and undertake the business of investment, finance and hire purchase of all moveable and immovables, borrowings and lending by

way of inert corporate deposits, foreign currency lending and borrowings, bill discounting and rediscounting, to represent, tie-up and/or undertake to tie

up with foreign banking companies, to tie-up for project and working capital finance, syndication of financial arrangements.

And other main objects.

As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements, 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 appellants have stated that no notice under section 248(1) of the Act in the form of STK-1 was received by the Company or any of the

directors or any person on their behalf and hence not afforded any opportunity of being heard before striking of the name of the company.

However, without going into the controversy of the latches in following the due procedure of law by Registrar of Companies before the final act of

striking off the name of the company from the register of companies maintained by Registrar of Companies, for non-filing of statutory documents by

company for the relevant period, through publication of notice, the appellants have preferred to prove with documents and records that the company

was in operation and doing business during the period of striking off the name of the company as a better remedy.

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 Bank Statement of company issued by HDFC Bank, from 01.09.2011 to 31.03.2013; Dena Bank from 01.04.2014 to 29.08.2016; Yes

Bank from 01.04.2016 to 29.06.2017 reflecting various transactions done by the company during the period of striking off and av8ing closing balance

of Rs. 32,000/- as on 29.06.2017.

ii. 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 cash and cash equivalent of Rs. 12,77,708/- and Loss of Rs. 6,069/-

iii. The copies of Income Tax Returns filed for the assessment years 2016-17 & 2017-18. The tax paid for the assessment year 2016-17 is NIL.

iv. The copy of transaction statement from 01.04.2016 to 31.03.2018 issued by National Securities Depository Limited for investment of appellant

company in Surya Pharmaceutical Private Limited.

v. The copy of the order of Income Tax Appellate Authority dated 29.05.2018 wherein the appeal has been restored and the appellant has been given

an opportunity of being heard for the proceedings pending against the company for the assessment years 2005-06, 2006-07, 2007-08, 2009-10 & 2010-

11.

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 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 are outstanding demand pending against the assessee company for the

assessment years 2005-06, 2006-07, 2007-08, 2009-10 & 2010-11 and the proceedings for the same are pursuing before the Income Tax Appellate

Authority.

The Section 252(3) contemplates that one of the 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 namely:

i. That the company at the time of its name was struck off was carrying on business.

ii. Or it was in operation

iii. Or it is otherwise just that the name of the company be restored on the register.

The Appellant have submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct

company. Thus, taking into consideration the provisions of Section 252(3) 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 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.