Easyway Consultancy Private Limited vs Registrar Of Companies, Punjab And Chandigarh

Ajay Kumar Vatsavayi, J

The present petition in Form NCLT No. 9 is filed by Easyway Consultancy Private Limited (hereinafter referred to as the 'petitioner' or 'company') under Section 252(3) of the Companies Act, 2013 (hereinafter referred to as the 'Act') seeking restoration of the name of the Company in the Register of Companies. The master data of the Company is at Annexure A-2 i.e. page 16 of the Petition. The CIN of the Company is CIN No. U74140CH2011PTC032709. As per the master data of the petitioner-company, the company was incorporated on 28.01.2011. The registered address of the petitioner-company is SCO 47-48, Second Floor, Sector 17-C, Chandigarh and therefore, the matter lies within the territorial jurisdiction of this Tribunal.

The petition is accompanied by affidavits which are signed and verified by Mr. Rasal Singh and Mr. Gurtej Singh, Directors of the petitioner-company. The same are at Page 9 to 12 of the paper book. The petition is also accompanied by Board Resolution of the petitioner-company, wherein, both the Directors of the petitioner-company have been authorized to file the petition on behalf of the petitioner-company. The petitioner has also annexed list of Directors as on 28.06.2019 as well as list of equity shareholders as on 28.06.2019, the same are at Annexure A-5 and Annexure A-6, respectively.

The petitioner has also annexed certificate of incorporation of the Company, the same is at Annexure A-4 of the petition. It is stated in the petition that the authorized, issued, subscribed and paid up share capital of the petitioner-company is Rs. 1,00,000/- divided into 10,000 equity shares of Rs. 10/- each fully paid up. The Memorandum and Articles of Association are part of the record and the same is at Annexure A-4 of the paper book. The main objects of the Company are as under:-

"1. To carry out business of providing consultancy & advisory services in the field of Finance, Accounting, Taxation, Audit, Controls & Risk including business process support and coaching in accounting, taxation, risk and control functions, manpower support and other related service inside or outside India.

To provide the consultancy service of Insurance Advisors, Insurance Agents and Corporate agency whether of Life Insurance or in General Insurance whether in the public sector or private sector subject to rules and regulation prescribe by the Insurance Regulatory Development Authority IRDA."

It is stated in the petition that the Registrar of Companies, Punjab and Chandigarh, (hereinafter referred to as the 'ROC') struck off the name of the Company from the Register of Companies due to defaults in statutory compliances, namely, failure to file financial statements and annual returns for the years ending 31.03.2016, 31.03.2017 and 31.03.2018. It is submitted that the notices, as required, under Section 248(1) of the Act, for STK-5 were not sent. The name of the Company is stated to be struck off from the Register of Companies, under the provisions of Section 248(5) of the Act, as per notice in STK-7 dated 11.09.2018. The name of the Company is stated to be at Serial No. 1983 in the Form STK-7.

It is submitted that the petitioner-company duly complied with rest of the provisions of the Act but due to health problems of Mr. Rasal Singh, Director of the company, who looks after statutory compliance works of the company, the company did not file annual financial documents with ROC including the balance sheets and annual returns for the financial years ending 31.03.2016, 31.03.2017 and 31.03.2018. It is further stated that the company has been regularly holding its Meetings of the Board of Directors and Shareholders.

It is further submitted that the petitioner-company has filed Income Tax Returns for the Assessment Years 2016-17, 2017-18 and 2018-19. The same are at Annexure A-11 (Colly).

During the course of arguments, the authorized representative of the petitioner-company submitted that in the event of restoration of the name of the Company in the Register of Companies, the Company shall file all outstanding statutory documents.

The ROC has filed the report, vide Diary No. 4423 dated 29.08.2019. It is stated that the Company had not filed the statutory annual documents with the ROC for the last 2 years i.e. 2015-16 to 2016-17 due to which the ROC had reasonable cause to believe that the Company was inactive and in terms of provisions of Section 248 of the Act, read with Rule 7 & 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, the name of the Company was struck off from the Register of Companies and Gazette Notification in terms of Section 248 of the Companies Act, 2013 was published notifying the names of companies which were struck off. A copy of Gazette of India notification no. 37 is at Annexure II and the name of the company is appearing at Sr. No. 1983. It has been prayed that the Company may be directed to show that at the time of striking off, it was carrying on business or was in operation and that the company be directed to file all the pending documents including all the due Annual Returns and Balance Sheets along with the requisite fee and additional fee as prescribed in the Rules; cost may be imposed on the petitioner for avoiding filing of the statutory documents of the Companies Act, 1956/2013.

During the course of hearing, the authorized representative for the petitioner-company pleaded that the conditions provided for in Section 252(3) of the Act, are satisfied and that the Company was carrying on business and was having revenue from operation at the point of time when name of the Company was struck off from the Registrar of Companies.

Ms. Veena Kathuria, Income Tax Officer, Ward-3(3), Chandigarh in its report, filed vide Diary No. 4394 dated 28.08.2019, wherein it is stated that a demand of Rs. 3,060 is outstanding against the petitioner-company for the Assessment Year 2013-14. It is also stated that no proceedings are pending with the Income Tax authorities.

We have heard the authorized representative for the petitioner and the learned counsel for the Income Tax Department and have also perused the record.

The relevant Section 252(3) of the Act is as follows:-

"(3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies"

The present petition is filed by the Company and is within the period of 20 years from publication in the Official Gazette of notice under Section 248(5) of the Act. Therefore, the only issue requiring consideration is whether the Company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies.

The Company is stated to be engaged in the business of providing consultancy and advisory services in the field of Finance, Accounting, Taxation, Audit, Control & Risks. The financial statements for financial years 2015-16 to 2017-18 have been filed as Annexure A-8 to A-10 of the petition. The year wise details of revenue from operations for the last 3 years are as follows:

Financial Year

Particulars

Amount (Rs.)

2014-15

Revenue from operations

1,798,301.00

2015-16

Revenue from operations

2,228,338.00

2016-17

Revenue from operations

7,525,608.00

2017-18

Revenue from operations

2,878,752.00

As per Annexure A-11 (Colly) of the petition, Income Tax Returns are stated to be filed for the assessment years 2016-17, 2017-18 and 2018-19. The gross total income for the assessment years 2016-17, 2017-18 and 2018-19 is stated to be Rs. 18,816/-, Rs. 65,817/- and Rs. 54,205/- respectively. The date of filing of the Income Tax Returns for the assessment year 2016-17 is 30.10.2017 and 2017-18 is 30.03.2018, which is before the date of striking of the name of the company from the Register of Companies.

In view of the above discussion, the petitioner-company has been able to show that it was carrying on business or in operation at the time of its name being struck off from the register of companies. In the submissions made on behalf of the ROC and Income Tax Department, no objection to the restoration of the name of the Company, has been raised.

It is therefore, held that the ingredients provided for in Section 252(3) of the Act, are satisfied.

In view of the above, the petition is allowed and the name of the company be restored in the Register of Companies, subject to deposit of Rs. 20,000/- (Rupees Twenty Thousand only) as costs with the Pay and Accounts Officer, Ministry of Corporate Affairs within a period of three weeks from the receipt of certified copy of this order. Further directions are issued as under:

a) The petitioner shall deliver a certified copy of the order to the Registrar of Companies within 30 days from the date of receipt of certified copy of this order;

b) On such delivery, the Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette;

c) The company is directed to pay the requisite fee for filing the Balance Sheets and Annual Returns up to date with the applicable fee and the additional fee as prescribed in the Rules;

d) The company shall deposit the costs of Rs. 20,000/- with the Pay and Accounts Officer of Ministry of Corporate Affairs within three weeks from the date of receipt of certified copy of this order;

e) The company shall file pending financial statements and Annual Returns with the Registrar of Companies and comply with the requirements of the Companies Act, 2013 and rules made thereunder within one month of the notification of restoration of the company's name in the Register of Companies;

f) The Registrar of Companies will be at liberty to proceed against the company and its officers for the delay in filing of the Balance Sheets and Annual Returns for the years in default; and

g) 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 year and also for recovery of outstanding demand, if any.

Copy of this order be communicated to the petitioner, Income Tax Department and the Registrar of Companies, Punjab and Chandigarh.