Himanshu Mani Tripathi And Another vs Registrar Of Companies Nct Of Delhi And Haryana

Hemant Kumar Sarangi, Member (Technical)

The present appeal is filed by the Ex-Director Mr. Himanshu Mani Tripathi of M/s Total Broadcast Solutions Private Limited (for brevity the

‘Company’), under Section 252(3) 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(5)/STK-7/4865 and

published on 08.08.2018 by Registrar of Companies, the respondent No. 1 herein.

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 14.02.2012 with CIN UU72200 DL2012 PTC231500, having its registered office at C-17, Flat No. 502, New

Ashok Nagar, Delhi, New Delhi - 110096, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 1,0, 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:

(i) To do trading and services in the field of Broadcast Product and Information Technology products. To carry on turnkey, offsite, off-shore or

subcontracting the business of developing, designing, programming, maintenance of Broadcast product, software and to buy, sale, purchase, assemble,

import, export, stockiest, distributors, designers, agents, traders and exchangers in all kind to broadcast products, comuters, computer hardware,

computer software, conversion, data entry, software implementation, system study, software documentation and related components, computer

peripherals, integrated circuits, computer printers, transformers, monitors, uninterrupted power supply system, networking of local area and wide area,

and other related items.

(ii) To design, host, promote, maintain, upgrade, rent and sell of web pages, websites, internet applications and software including online placement,

education, entertainment and matrimonial and to carry on business of internet, software development, web advertising, internet classifieds, print

classified, web content design and development, web publishing, networking, network integration, e-mail and massaging solutions, web enabled

automation system and solutions, intranet, extranet, e-business, e-commerce, electyronic data interchange (EDI) solutions, cyber solutions, product

catalogs, yellow pages listing and all other internet related products and services and to register, renew, transfer and setup of internet domain name as

registrar, sub-registrar and principal agent.

(iii) To provide consultancy services in the field of broadcast products, computer system, software, hardware, media, peripherals and allied items,

computer personnel and computerization in general.

(iv) To carry on business of providing support logistics and distributions services for the various activities mentioned in clauses (1) to (3). And to carry

on any and all business related or incidental to the objects and purposes referred to in the foregoing.

(v) And the other main object.

The appellant further states that, a sweeping action was initiated by the ROC, at the instance of MCA, in striking off the names of several

Companies who had failed to file their Statutory Returns. The Appellant Company has not filed its Annual Returns and Balance Sheet for F. Y. 2015-

16, thereby giving rise to the surmise that the company was not in operation. Consequently, its name was struck off vide notice STK-7 dated

08.08.2018 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance with

law and issuing a notification in the Official Gazette. The names of the affected companies were posted on its website.

The Respondent no. 1 herein had issued purported Public Notice bearing No. ROC/DELHI/248/STK-5/2018/2912 dated 18.06.2018 and had sought

explanation from the company as to why its name should not be struck off from the register of companies, on account of not carrying on any business

or operation for a period of two immediately preceding financial years and having not made any application within such period for obtaining the status

of a dormant company under section 455 of the Companies Act, 2013 (Act). Consequently, its name was struck off vide notice bearing no.

ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018 (name of the company is reflected at Sl. No. 22026), whereby name of 24280 companies have

been struck off from the Registrar of Companies and the Company has been dissolved.

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 Sheet

for F. Y. 2015-16, 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 financial statement upto the year ending 31.03.2015, alongwith other statutory documents, were duly filed by

the Company with the Respondent no. 1 after 30.09.2015 (duly reflecting in the Master Data of the Company). The company was active and was

carrying out its business 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 said facts are evident from the Bank Account statement

of the Company for the relevant period.

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

i. The copy of Bank Statements of the Company of AXIS Bank for the period 02.04.2015 to 31.03.2016 showing various transaction details of the

company and reflecting closing credit balance of Rs. 1443.97 as on 31.03.2016.

ii. The copies of Audited Financial Statements of the company for the period from 2013-14 to 2017-18. The Financial Statement for F. Y. 2017-18

reflects Noncurrent Assets in form of Fixed Tangible Assets of Rs. 1,18,322/- Current Assets in form of Inventory of Rs. 18,05,245/- and Revenue

from Operations is Rs. 25,69,376/-.

iii. The copies of Income Tax Returns for the Assessment Years 2013-14 to 2016-17 and 2018-19. The tax paid by the company for A.Y. 2018-19 is

Rs. NIL.

iv. Copy of GST Returns.

The ROC has filed its reply on 25.06.2019 in which it has been submitted that the Company had not filed its Financial Statement since Financial

Year ended on 31.03.2016. 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 not filed any reply in spite of being given repeated opportunity to do the same. Hence, the present appeal is

being decided in the absence of any reply from the Income Tax Department.

The grounds contemplated under section 252(3) 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(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 off the name of the company is hereby declared illegal

and 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.