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Judgment
This appeal is filed by the company, M/s FM Management Private Limited (for brevity the 'Company), through and along with its Directors, Mr.
Vinayak Chandru Mahtani, Mr. Puneet Rai and Mr. Vikas Dhawan, 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 20.03.2007 having CIN U93090DL2007PTC160775.
The company is having registered office at A-9, Kirti Nagar, New Delhi-110015.
Authorized share capital of the Company is Rs. 5,00,000/- divided into 50,000 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 or vocation of acting as advisers and consultants on all matters and problems relating to the Technical Industries, civil,
administration, finance, and organization, management, commencement or expansion of industry, purchasing techniques and business (including
construction of plants and buildings), production, purchases, sales, material, and cost control, marketing, advertisement, publicity, personnel, export and
import to and for institutions, concerns, bodies, associations (incorporated or unincorporated), departments and services of the Government public or
local authorities, trusts, scientific research and development centers and to be appointed as technical, financial, industrial administration, civil
consultants.
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 during
the period of strike off, 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 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, 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 on 30.06.2017, 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 Appellants have further 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 of Andhra Bank, from 22.12.2009 to 13.11.2017, reflecting various transactions done by the company,
during the period of striking off, having the closing balance of Rs. 15,10,389/-
ii. The copies of financial statements of the company from 2013 to 2017. The Balance Sheet as on 31.03.2017 reflects tangible fixed assets of
Rs.32,61,354.79/- and revenue from operation of Rs. 8,77,250/-
iii. The financial statements for the year 2017 reflects other income of Rs. 22,77,736/- by the profit from sale of sale of assets.
iv. The company has incurred employee benefit expense of Rs. 15,36,025/- for the financial year ending on 31.03.2017.
v. The copies of Income Tax Return the assessment years 2014-15 to 2017-18. The Income Tax Return for assessment year 2017-18 reflects
business loss of Rs. 9,95,620/-.
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 not filed its reply in spite of several opportunities given by the Tribunal. The appellants have duly filed Income
Tax Returns for assessment year 2014-15 to 2017-18.
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 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 in terms of above order.
Let the copy of the order be served to the parties.