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Judgment
Present appeal is filed by the company, M/s Fantasy Exim Private Limited (for brevity the `Company'), along with its director, Mr. Sanjeev Jain
under Section 252(3) 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 10.02.2004 having CIN U51909DL2004P1C124560.
The company is having registered office at 3435-3435, 1st Floor, Hauz Qazi, New Delhi-110020.
Authorized capital of the Company is Rs.1,00,00,000/- divided into 10,00,000 equity shares of Rs.10/- each and issued, subscribed and paid up
capital of the company Rs.68,05,000/- fully subscribed divided into divided into 6,80,500 Equity Shares of Rs.10/- each.
The main objects of the company are:
i. To carry on the business of buyers, sellers, dealers, distributors, agents, brokers, factors, manufactures, assemblers, stockiest, commission agents,
exporter & importer including purchases from and sales in domestic market and to act as import export house for all types of goods, articles
commodities including hardware and software.
And other main objects.
The appellants submitted that due to slack in business there was not much activities for the period in around 2012 onwards because of which, it has
failed to file statutory returns with effect from 31.03.2012. As per the notice, due to non- compliance of provisions of the Companies Act, 2013 in
respect to filing of annual returns and financial statements for the last two Years, 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 appellants further submit that no notice under section 248(1) of the Act in the form of STK-1 was served on Company or any of the directors
or any person on their behalf, before striking of the name of the company. And that the appellants were not given any opportunity of being heard prior
to striking-off the name of the company and the striking-off the name of the company which has caused great financial loss to its stakeholders.
May it be so, without going into the controversy that ROC while striking off the name of company did not follow the due procedure of law as per
provisions of the Company Act, 2013. The appellants prefer and opt 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 Appellants have brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copies of financial statements of the company for the financial years from 2012 to 31.03.2017. The turnover as per last audited Profit and loss
Account as on 31.03.2017 is Rs. 88,200/- and corresponding profit for the same period is Rs. 1,116/-
ii. The balance sheet as on 31.03.2017 also reflects fixed assets of total value to the tune of Rs. 88,01,532/-
iii. The company has incurred employee benefit expense of Rs. 59,583/- during the financial year 2016-17.
iv. The copies of Income Tax Returns filed for the assessment year 2016-17 and 2017-18. The tax paid by the company for A.Y. 2017-18 is Rs. 500/-
v. The copy of deed of conveyance executed on 25.01.2017 between Haryana Urban Development Authority and the company reflecting company as
the owner of the commercial property, of substantial value. Also, the copy of request made by the Appellant to Haryana Urban Development
Authority for extension for construction on the plot no. 93, sector-44, Gurgaon, Haryana, dated 24.05.2018 is submitted by the appellants.
It is further submitted by the Appellant 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 Assesse 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 Appellants have placed on record the evidence that it has been in operation since incorporation and therefore could not be termed as defunct
company as per section 252(3) of the Act. Thus, taking into consideration the provisions of Section 252(5) 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.