Goodrich Global Furnishing India Pvt. Ltd vs Registrar Of Companies, Delhi And Ors

Dr. Deepti Mukesh, J

The present appeal is filed by the Goodrich Global Furnishing India Pvt. Ltd. and its directors (for brevity the 'Company'), under Section 252(1) of the Companies Act, 1956 (for brevity 'the Act') against the order of striking off the name of the company, passed by the Respondent No. 1 under section 248 (1) of the Act, issued vide notification No. ROC/DELHI/248(l)/STK-7/6217 and published on 29.10.2019 by Registrar of Companies.

The Appellant states that, the company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana under the Companies Act, 1956 on 09.09.2009 with CIN U36100DL2010PTC208082, having its registered office at 803, Arjun Nagar Kotla, Mubarakpur, New Delhi - 110003 within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 50,00,000/- the issued, subscribed and paid up share capital of the Company is Rs. 1,00,000/- as per the Master Data Annexed.

The main objects of the company are:

(a) To carry on the business of Designers, Decorators, Printers, furnishers, Residential interior architecture, Product designing, Furniture & furnishings, Urban design & town planning, Electrical designing, Turnkey projects, Mechanical designing and to persist the business for installation of wallpaper, trading of glue & tools and of house and office furnishing as manufacturers, agents, interior decorators, distributors, dealers, hirers, repairers, cleaners and warehouses of furniture, carpets, linoleums, floor covering, curtains, pavement, household utensils, china and glass goods, fittings, other commercial and residential furnishing, upholstery, designing and printing and household requisites of all kinds and all things capable of being used therewith or in the maintenance, repair or manufacture thereof.

(b) And the other main objects.

The Appellant Company had from the date of its incorporation been engaged in business and had been regularly complying with the provisions of the statutory filing of returns, namely, filing of Financial Statements and Annual Returns for the relevant and concerned financial years.

That in/around the first/second week of August, 2019, the Appellant Company received a notice from the Respondent No. 1 dated 19.07.2019 bearing ref. No. ROC Delhi 248(1)3599872019 alleging that the Appellant Company has not been carrying any business since the last two (2) financial years. That the said notice was to the utter shock of the Appellant Company as the Appellant Company since the day of its incorporation had been engaged in the business and had been regularly complying with the provisions of statutory filing, given the fact that the engaged Chartered Accountants always used to ensure the Appellant Company about the factum of the relevant filings being done. That as soon as, the said notice was received by the Appellant Company, the same was immediately sent to the engaged Chartered Accountants for necessary and immediate action to which it was assured by them to the Appellant Company officials that the same is being looked upon and will be immediately dealt/complied with.

The Respondent No. 1 through Notice dated November 16, 2019 struck off the name of the Appellant Company alleging that the Appellant Company has not been carrying on any business or operation for a period of two immediately preceding financial years, however, contrary to the same the Appellate Company starting from the date of its incorporation has been carrying on business and continuing till the date of the striking off the name of the Appellant Company and the same is evident from the documents being filed along with the present appeal herein categorically showing that the Appellate Company has been regularly carrying on business and had been filing the annual forms/returns with the Respondents in compliance of the statutory provisions.

The Respondent herein had issued Public Notice bearing No. ROC/DELHI/248(1)/STK-5/2019/3789 dated 09.08.2019 at entry No. 2765. Consequently, its name was struck off vide notice bearing No. ROC/DELHI/248(l)/STK-7/6217 dated 29.10.2019 (name of the company is reflected at SI. No. 2765).

As per the notice of non-compliance of provision of the Companies Act, 2013, the said company has not filed its Annual Returns and Balance Sheets immediately for two preceding financial years. Hence, 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.

That it is pertinent to mention that admittedly the annual returns for the financial year 2016-2017 had been filed by the Appellant Company on 31.03.2017, which details the turnover and net worth of the Company; the said factum evidences that the Company is actively carrying on its business. However, there had been an inadvertent default in not filing the annual returns and the financial statements for the financial year 2017-2018 i.e., only for one year. That with respect to the financial year 2018-2019, t he last date for the filing of Form AOC-4 (Financial Statements) and the Form MGT-7 (Annual Returns) had still not expired as the last dates are 30.11.2019 and 31.12.2019 respectively. Therefore, it can be safely asserted that the default if any for non-filing of the annual returns is at best for one year.

Admittedly there has been a default (delay) in non-filing the provisional forms for the financial year 2017-2018 only (being a year only taking the case of the Respondent No. 1 at the highest) and in no manner whatsoever, can it be concluded that the Appellant Company has not been carrying its operations for the last two financial years has been alleged by the Respondent No. 1 in lieu of the fact that till 31.03.2017 annual return reflecting the net worth and turnover of the Company has been filed on behalf of the Appellant Company. Furthermore, without prejudice to the same, the said statutory provisional forms for the year of 2017-2018 could have still been filed subsequent to the payment of appropriate late fees pursuant to the provisions, nevertheless, the Respondent No. 1 chose to, in an arbitrary manner, strike off the name of the Appellant Company.

Without Prejudice to the same, it is pertinent to mention that the Appellant Company has been active since its incorporation i.e., 2010 and has been maintaining the documents as required under the provisions of the Companies Act, 2013.

The Appellant has brought forward the following documents about it being in operation and functional during the period of striking off:

i. Copy of Bank Statements of the Company of ICICI Bank from March, 2019 reflecting balance of Rs. 4,46,623.17/-.

ii. Copies of Audited Financial Statements of the company for the period from 2015-16, 2016-17 to 2017-18. Financial Statement for F. Y. ended 2018 reflects Fixed Assets in form of tangible Assets is Rs. 15,96,369/-. Current Assets in form of Cash and Cash Equivalents is Rs. 11,78,687/-.

iii. Copies of Income Tax Returns for the Assessment Years 2014-15 to 2016-17 and 2018-19 with Rs. 4307-/.

The ROC has filed its reply on 19.12.2019 in which it has been submitted that the Company had not filed its Financial Statement for the years 2015-16 and 2016-17. However, the ROC further submits that the company was struck off by the office of Respondent because neither the company was carrying on any operation for a period of two immediately preceding financial years, nor obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.

The Income Tax Department has filed its reply on 06.02.2020 in which it has been submitted that the Company has filed its Income Tax Return for the A. Y. 2012-13 to 2018-19. It further states that as per the details found on ITBA system, a total demand of Rs. 9,08,720/- is outstanding against the Appellant Company and no cash deposits have been made by the company in the period of demonetization.

The grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company carrying on business or was in operation at the time of striking off its name, and where it appears "just" to the adjudicating authority that the name of the company is to be restored to the Register of Companies and the Section 252(3) further contemplates that one of the above 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.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and during the period preceding strike off, therefore could not be termed as defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) 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 off the name of the company is hereby declared illegal and 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.