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Judgment
This appeal is filed by the company, M/s Ethnic Hotels Private Limited (for brevity the 'Company), through its Shareholder, Mr. Vikas Bishnoi
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 27.05.2008 having CIN U55101DL2008P1C178649.
The company is having registered office at 102, Nirmal Tower, Barakhamba Road, New Delhi.
Authorized share capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each and issued, subscribed and paid up share
capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
The main objects of the company are:
i. to carry on the business of hotels, motels, restaurants, resorts, recreation centre, holiday camps, amusements parks, guest houses, banquets halls,
picnic spot, canteens, caterers, cafes, taverns, pubs, bars, beerhouses, refreshments rooms, clubs and lodging or apartment, shopping complex, house
keepers, discotheques, swimming pools, health clubs, baths, dressing rooms, health centre, conference centre, gymnastics, yoga centre, catering and
hospitality services, massage and beauty parlors in and outside India and related activities thereto.
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 since
incorporation, 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:
i. The copy of sale deed for purchase of two plots of agricultural land admeasuring about 1 Kanal 16 Marle for consideration of Rs. 6,75,000/- and the
other plot of 21 Kanal 6 Marle for consideration of Rs.2,14,00,000/-, dated 20.08.2008, in favour of the company, situated at village Bilaspur Tehsil 86
District Gurgaon.
ii. The copies of financial statements of the company for the financial years ending on 31.03.2014 up to 31.03.2017. The Balance Sheet as on
31.03.2017 reflects tangible fixed assets of Rs. 2,23,64,193/- and Loss of Rs. 10,000/-.
iii. The copy of collaboration agreement, dated 22.08.2008, executed between the appellant company with the developer M/S Hari Kripa
Infrastructure Pvt Ltd. for utilizing the said plot of land of the company for construction of a hotel/motel/commercial complex project, land
admeasuring 5.4 acres 85 5.3 acres, situated at village Bilaspur, Tehsil 85 District Gurgaon, for consideration of the development of entire land.
iv. The copies of Income Tax Returns filed for the assessment years 2013-2014 to 2017-2018 as NIL returns.
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 no outstanding demand against the Assessee and has no objection if the
company is considered for revival.
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.