GAGAN Credits Pvt. Ltd. And Anr. vs Registrar Of Companies

The appeal under Section 252(3) of the Companies Act 2013 (Act) is filed by Gagan Credits Private Limited share-holder for restoration of the

name of Agache Associates Limited (AGACHE) in the register of companies maintained by the Register of Companies NCT of Delhi and Haryana

(ROC). The list of shareholders of Agache has been filed as Annexure A3. The shareholders include Gagan Credits Private Limited (Appellant)

holding 37,193 equity shares. Vide order sheet entry dated 25.04.2019, it was noted that the master data shows that Agache was incorporated in 1978

but the master data discloses that there are no directors in the company and in its report, ROC also reflects the same position. The appellant was

thereupon directed to produce the shares certificates to show that it is a member of Agache. The compliance was made by Dairy dated 24.05.2019

and the copy of the share certificate Regd. Folio No, 014 Certificate No. 000042 for 37,193 shares with distinctive nos. 65490-102682 was annexed as

annexure Al.

The appeal is signed by Sh. Kamal Hemrajani authorized representative of shareholder Gagan Credits Private Limited. The affidavit of Sh. Kamal

Hemrajani certifying the contents of the appeal is at page 26. A copy of the board resolution dated 29.11.2018 of Gagan Credits Private Limited giving

authority to Sh. Kamal Hemrajani is at page 28.

The master data of Agache is at Annexure A2 and shows that Agache was incorporated on 27.06.1978 and it CIN is U51909DL1984PLC017506.

The registered address is given at Eros Apartment, Nehru Place, New Delhi, 110019. Therefore, the jurisdiction lies with this bench of the tribunal.

4 The master data shows that the authorized capital is Rs. 25,00,000, and paid up capital Rs.12,50,000. The memorandum and article of association of

Agache is at Annexure A 1 (Colly).

It is stated that Agache has been actively doing business since its incorporation and that Agache has 11 employees on 30.11.2018 and is regularly

paying the salary to its employees and also making its contribution to the employee provident fund organization and regularly filing the returns to the

employee provident fund organization. It is also submitted that Agache has fixed assets in the form of land at 15 Ratan Babu Road Cossipore, Kolkata

and Agache is also having warehouses on the said land and used to give the warehouse to others for using the same for the purpose of warehousing

and have valid license agreement with the licensee. It is submitted that Agache in the due course of its business has provided services to various

tenants up to 30.11.2018, raised number of invoices and also received payment against the invoices. Payment for telephone service is stated to be

continuously made. It is submitted that Agache is paying property tax to the Kolkata Municipal Corporation and also paying electricity charges to

Calcutta Electricity Supply Corporation. It is submitted that Agache had annual turnover for the past financial years2006-2007 to 2018-2019. It is

stated that Agache got registered with GST vide registration no. 19AAACA9911H1ZN and is regularly paying GST and filing returns before the

authorities the bank statements up to 30.11.2018 are stated to be annexed along with copies of income tax returns filed for the period of 2014-15 to

2017-2018. Civil suit bearing CS/53/2009 is stated to be filed by Agache against one of the companies namely Dolly Entertainment Private Limited &

Ors. and pending before the Hon'ble High Court of Kolkata.

It is submitted that balance sheet and annual return of Agache for the year 2009 to 2017 could not be before the ROC and that the official entrusted

with the responsibility of filing the documents did not inform the management about the filing status and this resulted in non-compliance. It is submitted

that in the financial year 2017 when Agache was ready to file its balance sheet on MCA Portal, the company saw its status as struck off. It is prayed

that Register of companies be directed to restore the name of Agache in the ROC.

Vide order dated 17.01.2019, the ROC and Income Tax Department were directed to file reply. The reply cum affidavit on the ROC has been filed

by diary dated 15.02.2019 stating that Agache has not filed its financial statement since its incorporation due to which the ROC had reasonable cause

to believe that Agache was inactive and in terms of Section 248(1) of the Act, read with Rule 7 of the Companies (Removal of Name of Companies

from the Register of Companies) Rules, 2016, action of striking had been initiated. It is prayed that Agache may be directed to prove that it was

carrying on business or in operation and it is just the name of the company be restored to the register and Agache may also be directed to file the

financial statements and cost be awarded in favour of the ROC.

The Income Tax Department has filed its report by Diary dated 05.04.2019 giving details of Income Tax Returns filed for assessment years 2012-

2013 to 2017-2018 and stating that the pending proceeding is only in respect of scrutiny case for assessment year 2017-2018.

During the course of the hearing, the learned counsel for the appellant has relied on the appeal and is pleaded that Agache is regularly conducting

its business and preparing its financial statements time to time as per provisions of Companies Act 1956/2013 and therefore, the name of Agache be

restored in the ROC. The id. Authorized representative of ROC has relied on the report. The learned counsel for the Income Tax Department has

also relied on the report submitted.

We have carefully considered the submissions as the learned counsel for the appellant, authorized representative of ROC and learned. Counsel for

the Income Tax Department and have also perused the record. The provisions of Section 252(3) of the Act are 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.

In the present case, the appeal is filed by a member of Agache and within the period of 20 years of the publication of notification in official gazette

under Section 248(5) of the Act. Therefore, the only issue requiring consideration is whether Agache was, at the time of its name being struck off,

carrying on business or in operation or otherwise it is just the name of the company be restored to the register of company. The name of Agache has

been struck off from the register of companies vide form No. STK-7 Notice no. ROC/DELHI / 248(5) / STK-7/4865 dated 08.08.2018 and the name

of Agache is at serial no. 799 of the notice (Annexure A16). The audited balance sheets from 2009 to 2017 have been filed at Annexure A 10(Colly).

The details of fixed assets on 31.03.2017 are at Page 377 and show that Agache owns land as well as building. The profit & loss account shows

revenue from operation of Rs.1,18,58,537 and Rs. 1,27,92,517 for the financial years ending on 31.03.2016 and 31.03.2017 respectively. As per note

16, the revenue from operation is comprised of income from licence fee and income from supervisory and management services. The income from

licence fee is Rs. 63,11, 431 and Rs. 67,91,500 for the financial year 2015-2016 and 2016-2017 respectively. The Income from Supervisory and

Management Services is of Rs.55,47,106 and Rs. 60,01,017 for financial years 2015-2016 and 2016-2017 respectively. There are employee benefit

expenses of Rs.41,77,829 and Rs. 46,27,100 for the financial years 2015-2016 and 2016-2017 respectively. The appellant has stated that it is registered

with GST and has enclosed copies of GST payment receipts for deposits on 18.06.2018 and 16.07.2018 Copies of some invoices in respect of licence

fee and supervisory / maintenance and management during the period September to December 2018 have been filed. Copies of some receipts for

payment of electricity charges to CESC Limited has been filed at Annexure A8 (Colly). Property tax bill of 2018-2019 of Kolkata Municipal

Corporation is also filed in Annexure A9 (Colly). Copies of some banks statements are filed as Annexure Al2(Colly) to substantiate the plea that the

company is carrying on operation.

The financial statements for the financial years ending 31.03.2014 and 31.03.2015 also show revenue from operation on Rs. 10,716,182 and

Rs.10,888,516 respectively as well as employee benefit expenses of Rs. 3,605,612 and Rs.3,986,766 for the financial years ended on 31.03.2014 and

31.03.2015 respectively.

The Income Tax Department has furnished the details of Income Tax Return filed for assessment years 2012-2013 to 2017-2018 in which the

returns were filed between the dates of 23.03.2014 to 31.10.2017 i.e., before the date of striking off of 08.08.2018. The details furnished by the

Income Tax Department show that the income/loss returned was for amounts between Rs. 0 and Rs.9,01,920/

Both the ROC and Income Tax Department have not any raised any objection to the restoration of the name of the company in the register of

companies.

In view of the above discussion, we are satisfied that at the time of striking off of its name from the register of companies, Agache was carrying

on business and was in operation and therefore, the conditions provided for Section 252(3) are satisfied. We therefore direct that the name of the

company M/s. Agache Associates Limited be restored to the register of companies.

Accordingly, this appeal is allowed. The notification published in the Official Gazette of India dated 08.08.2018 serial no. 799 thereof with regard

to the name of Agache Associates Limited bearing CIN No. U51909DL1984PLC017506 is hereby declared illegal and is set aside. The restoration of

the company's name to the Register will however be subject to its filing all outstanding documents required by 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 on payment

of cost of Rs.40,000/- to be paid to the Prime Minister Relief Fund. The name of the 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(5) of the Companies

Act, 2013,

Liberty is granted to the respondent to proceed with penal action against the company, if so advised, on account of the company's alleged default

in compliance with any provisions of the Companies Act, 2013.

Liberty is also given to the Income Tax Department to initiate action for delayed / non-filing of income tax returns and recovery of outstanding

demand, if any.

The Appeal is disposed of accordingly.

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