Elite HR Practices India Pvt. Ltd. vs Registrar Of Companies

This Appeal has been filed by M/s Elite HR Practices India Private Limited CIN: U74999 DL2009 PTC 193347 invoking the provision of section

252 of the Companies Act, 2013 for restoration of the name of the appellant company in the register maintained by the Registrar of Companies, NCT

of Delhi and Haryana.

As per the averments Elite HR Practices India Private Limited was incorporated on 19.08.2009 and has its registered office at 70-A, Fateh Nagar,

Tilak Nagar, New Delhi-110018 within the jurisdiction of this Tribunal. The main object of Company is to carry on the business of human resource

consulting.

A sweeping action was initiated by the RoC at the instance of MCA in striking of the names of several Companies who had failed to file their

Statutory Returns. The appellant had failed to file its Annual Returns and Financial Statements after the Financial Year Ending 31.03.2015 thereby

giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off by the Respondent from the

Register of Companies under Section 248 of the Companies Act, 2013, 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 company admits its default in carrying out the statutory compliances but submits that the same was due lack of professional guidance,

inadvertence &, oversight

In order to corroborate its business operation the petitioner has placed before us the following evidence:

I. Copy of Audited Financial Statements for FY ending 31.03.2016 and 31.03.2017 reflecting revenue from operation as Rs. 2,11,13,488/- and

1,71,32111/- respectively. It also has substantial cash deposits in the Bank on which interest has been accruing regularly. Apart from the same, it has

availed Short Term Loans, and has current and non current assets, Trade receivables etc.

II. Copy of Income Tax Return filed prior to the impugned action along with Form 26AS in respect of Tax Deduction on their business proceeds.

III. Copy of GST Registration,

IV. Copy of Bank Statement issued by HDFC Bank showing various business receipts and Fixed deposits maintained with them.

The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes

that if in the opinion of the Tribunal it is considered just and equitable to restore the name of the company in the Register of Companies, it may direct

the RoC to restore the name in its Register.

The case of the appellant is covered by a catena of judgments where restoration has been duly allowed. As per the law laid down, a chance should

be given to the company, its members and creditors to revive the company, giving them the opportunity of carrying on the business if the court is

satisfied that such restoration is necessary in the interest of justice.

A perusal of the documents referred to in paragraph 5 above, reflects that the appellant has been in active business which is evident from its

various Form 26AS on record. It also has certain Assets which necessitate restoration of its name in the Register of Companies. The assumption of

RoC that the company was not in operation was merely on grounds of non-filing of the Statutory Returns. The Act itself provides for redressal of

these defaults. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to

disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various Courts it

should only be in exceptional circumstances that Courts should refuse restoration where the company has been struck for its failure to file annual

return as that would be excessive or inappropriate penalty for that oversight.

Accordingly, the petition is allowed subject to payment of costs of Rs. 25,000/-to the Prime Minister Relief Fund. The restoration of the petitioner

company's name in the Register will be subject to their filing all outstanding documents for the defaulting years as required by law and completion of

all formalities, including payment of any late fee or other charges which are leviable by the respondent for the late filing of statutory returns. The name

of the petitioner company shall then stand restored in the Register of the Registrar of Companies (RoC), as if its name of the company had not been

struck off.

The direction for freezing the Bank Account(s) of the appellant company, if on this ground, shall consequently be also set aside immediately to

enable the company carry out its business operation. Compliance of this order for restoration shall be made by the respondent with all its consequential

effects within one week of compliance by the appellant.

The petition is disposed of accordingly.

Let the copy of the order be served to the parties.