HKN Hydel Power Company Private Limited Through Ms. Saroj Verma vs Registrar Of Companies, Himachal Pradesh

Ajay Kumar Vatsavayi, J

The present petition in Form NCLT No. 9 is filed by HKN Hydel Power Company Private Limited (hereinafter referred to as the 'petitioner' or 'company') under Section 252(3) of the Companies Act, 2013 (hereinafter referred to as the 'Act') seeking restoration of the name of the Company in the Register of Companies. The CIN of the Company is CIN No. U40101HP2006PTC030372. As per the master data of the petitioner-company, the company was incorporated on 21.06.2006. The registered address of the petitioner-company is at Swaran Chambers Akhara Bazar, Kullu, in the State of Himachal Pradesh and therefore, the matter lies within the territorial jurisdiction of this Tribunal.

The petition is accompanied by affidavit which is signed and verified by Saroj Verma, one of the shareholder of the petitioner-company. The same is at Page 37 of the paper book. The petition is also accompanied by Board Resolution of the petitioner-company, wherein, Ms. Saroj Verma, Shareholder of the petitioner-company has been authorized to file the petition on behalf of the petitioner-company. The petitioner has also annexed List of Directors as on 31.03.2019 as well as list of equity shareholders as on 31.03.2019, the same are at Annexure A-3 and Annexure A-4, respectively.

The petitioner has also annexed certificate of incorporation of the Company, the same is at Annexure A-2 of the petition. It is stated in the petition that the authorized share capital of the petitioner-company is Rs. 1,00,000/- (Rupees One Lakh only) divided into 10,000 equity shares of Rs. 10/- each. The issued, subscribed and paid capital of the company is Rs. 1,00,000/- divided into 10,000/- equity shares of Rs. 10/- each. The Memorandum and Articles of Association are part of the record and the same is at Annexure A-2 of the paper book. The main objects of the Company are as under:

"1. To carry on the business to generate, receive, produce, improve, buy, sell, resell, acquire, use, transmit, accumulate, employ, distribute, develop, handle, protect, supply and to act as agents, brokers, representatives, consultants, collaborators or otherwise to deal in electric power and steam in all its branches or such place or places as may be permitted by appropriate authorities by establishment of Fuel Oil, Naptha or Gas, Thermal power plants, hydro power plants, atomic power plants, wind power plants, solar power plants and other power plants based on any source of energy as may be developed or invented in future."

It is stated in the petition that the Registrar of Companies, Himachal Pradesh, (hereinafter referred to as the 'ROC') struck off the name of the Company from the Register of Companies due to defaults in filing of the balance sheets and annual returns for the financial years from 2014-15 to 2016-17 by initiating the proceedings under Section 248 of the Act. It is also stated that the name of the company had been struck off by ROC under the provisions of Section 248 of the Act, vide Form No. STK-5 dated 29.06.2018 and thereafter, vide Form No. STK-7 dated 11.09.2018, the ROC published the striking off the petitioner company's name in the Official Gazette on 11.09.2018, Annexure A/5 (Colly), pursuant to the provisions of Section 248(5) of the Act. The name of the Company is stated to be at Serial No. 101 in the Form STK-7.

It is submitted that the petitioner-company that non-compliances of the statutory requirements were neither intentional nor deliberate, but only due to negligence on the part of the Accountant, who was authorized by the management for filing the balance sheets and annual returns with the ROC and ITR with the Income Tax Department, but he did not file the returns and did not even apprise the board about his failure to file the necessary returns. It is further stated that the company/directors were convening its Board Meetings and General Meetings as required during the period.

It is further submitted that the petitioner-company has filed Income Tax Returns for the Assessment Years 2016-17 & 2017-18 and 2018-19. The same are at Annexure A/7 of the petition.

During the course of arguments, the authorized representative of the petitioner-company submitted that in the event of restoration of the name of the Company in the Register of Companies, the Company shall file all outstanding statutory documents.

The ROC has filed the report, vide Diary No. 4537 dated 03.09.2019. It is stated that the Company had not filed the statutory annual documents with the ROC for the last 2 years i.e. 2015-16 and 2016-17 due to which the ROC had reasonable cause to believe that the Company was inactive and in terms of provisions of Section 248 of the Act, the name of the Company was struck off from the Register of Companies and Gazette Notification in terms of Section 248 of the Companies Act, 2013 was published notifying the names of companies which were struck off. A copy of Gazette of India notification no. 37 is at Annexure 2 and the name of the company is appearing at Sr. No. 101. It has been prayed that the Company may be directed to show that at the time of striking off, it was carrying on business or was in operation and that the company be directed to file all the pending documents including all the due Annual Returns and Balance Sheets along with the requisite fee and additional fee as prescribed in the Rules; cost may be imposed on the petitioner for avoiding filing of the statutory documents of the Companies Act, 1956/2013.

During the course of hearing, the authorized representative for the petitioner-company pleaded that the conditions provided for in Section 252(3) of the Act, are satisfied and that the Company was engaged in one Hydro Electric Project with the Government of Himachal Pradesh at the point of time when name of the Company was struck off from the Registrar of Companies.

Mr. Krishan Lal, Income Tax Officer, Kullu in its report, filed vide Diary No. 4688 dated 11.09.2019, wherein it is stated that no demand is outstanding against the petitioner-company. It is also stated that no proceedings are pending with the Income Tax Authorities.

We have heard the authorized representative for the petitioner and the learned counsel for the Income Tax Department and have also perused the record.

The relevant Section 252(3) of the Act is 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"

The present petition is filed by the Company and is within the period of 20 years from publication in the Official Gazette of notice under Section 248(5) of the Act. Therefore, the only issue requiring consideration is whether 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.

The Company is stated to be engaged in the business of generating, receiving, producing, improving, buying, selling, reselling, acquiring, using, transmitting, accumulating, employing, distributing, developing, handling, protecting, supplying and to act as agents, brokers, representatives, consultants, collaborators or otherwise to deal in electric power and steam in all its branches or such place or places as may be permitted by appropriate authorities by establishment of Fuel Oil, Naptha or Gas, Thermal power plants, hydro power plants, atomic power plants, wind power plants, solar power plants and other power plants based on any source of energy as may be developed or invented in future. The financial statements for financial years 2014-15 to 2016-17 have been filed as Annexure A-6 of the petition. The year wise details of revenue from operations for the last 3 years are as follows:

Financial Year

Particulars

Amount (Rs.)

2013-14

Revenue from operations

NIL

2014-15

Revenue from operations

NIL

2015-16

Revenue from operations

NIL

2016-17

Revenue from operations

NIL

The petitioner-company has attached the copy of the Bank Account Statement for the period of 01.01.2014 to 20.05.2019, in which it could be seen that there are no transactions except the incidental bank charges being debited by the Bank in the account.

As per Annexure A-7 of the petition, Income Tax Returns are stated to be filed for the assessment years 2016-17, 2017-18 and 2018-19. The gross total income for the assessment years 2016-17, 2017-18 and 2018-19 is stated to be NIL for all these three years.

It could be seen that the company has not generated any revenue since operation. It is also submitted that the company is involved in the development of project and due to its pendency, the company has failed to generate any revenue from it. It is also stated that the company has incurred preliminary expenses amounting to Rs. 8,17,227/- till the financial year 31.03.2018. It is contended that two projects named as SAROD-1 (1.50 MW) and SAROD-II (1.00 MW) SHEP, were allotted to the company by the Himachal Pradesh Energy Development Agency (HIMIRUJA) but the company intended to club the aforesaid into two projects. It is also stated that HIMURJA consented to the request of the company for changes in elevation after clubbing of SAROD-1 (1.5 MW) and SAROD-II (1.00 MW) SHEPs and the new project SAROD (4.50 MW) was approved by HIMURJA. This decision was conveyed to the company vide letter dated 26.05.2011 and the copy of the same is attached as Annexure A/8 of the petition. Copy of office order issued by Directorate of Energy Government of Himachal Pradesh dated 26.09.2015 giving consent for setting up of Hydro Power Project is attached with the petition as Annexure A/9. Copy of Implementation Agreement for SAROD Hydro Electric Project (4.50 MW) with HIMURJA with the Government of Himachal Pradesh on 05.07.2016 is at Annexure A/10. It is also submitted that the petitioner-company has obtained necessary approvals from Public Works Department, Fisheries and Wildlife Departments and copies of the same are marked as Annexure A/11 of the petition.

In view of the above discussion, the petitioner-company has been able to show that it was carrying on business or in operation at the time of its name being struck off from the Register of Companies as it is involved in one SAROD Hydro Electric Project with the Government of Himachal Pradesh and the petitioner has attached abundant evidence in respect of the same. In the submissions made on behalf of the ROC and Income Tax Department, no objection to the restoration of the name of the Company, has been raised.

It is therefore, held that the ingredients provided for in Section 252(3) of the Act, are satisfied.

In view of the above, the petition is allowed and the name of the company be restored in the Register of Companies, subject to deposit of Rs. 20,000/- (Rupees Twenty Thousand only) as costs with the Pay and Accounts Officer, Ministry of Corporate Affairs within a period of three weeks from the receipt of certified copy of this order. Further directions are issued as under:

a) The petitioner shall deliver a certified copy of the order to the Registrar of Companies within 30 days from the date of receipt of certified copy of this order;

b) On such delivery, the Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette;

c) The company is directed to pay the requisite fee for filing the Balance Sheets and Annual Returns up to date with the applicable fee and the additional fee as prescribed in the Rules;

d) The company shall deposit the costs of Rs. 20,000/- with the Pay and Accounts Officer of Ministry of Corporate Affairs within three weeks from the date of receipt of certified copy of this order;

e) The company shall file pending financial statements and Annual Returns with the Registrar of Companies and comply with the requirements of the Companies Act, 2013 and rules made thereunder within one month of the notification of restoration of the company's name in the Register of Companies;

f) The Registrar of Companies will be at liberty to proceed against the company and its officers for the delay in filing of the Balance Sheets and Annual Returns for the years in default; and

g) The Income Tax Department may take necessary action as per law for non-filing or belated filing of the Income Tax Returns of the Company for any of the assessment year and also for recovery of outstanding demand, if any.

Copy of this order be communicated to the petitioner, Income Tax Department and the Registrar of Companies, Himachal Pradesh.