Hyatt Petrochemcial Private Limited And Ors vs Registrar Of Companies

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Directors of M/s. Hyatt Petrochemical Private Limited (for brevity the 'Company'), under Section 252 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, issued vide notification No. ROC/DELHI/248(5)/STK-7/2879 and published on 30.06.2017 by Registrar of Companies, the respondent herein.

The Appellant states that, the company was incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana under the Companies Act, 1956 on 28.09.1993 with CIN U23209 DL1993 PTC052817, having its registered office at 33, Basrurkar Market, Moti Bagh, New Delhi - 110021, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 25,00,000/-. The issued, subscribed and paid up share capital of the Company is Rs. 25,00,000/-, as per the Master Data Annexed.

The main objects of the company are:

(i) To carry on the business of refining, blending processing, storing, supply, selling and distributing, petro-chemicals and any products, by products and derivatives thereof.

(ii) To purchase or otherwise acquire and to import, store, export, trade and deal in Petro-chemicals of all kinds, their products, by products and derivatives.

(iii) And the other main objects.

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 had filed its Annual Returns and Financial Statement since Financial Years ended 2011, due to the ongoing investigation into the affairs of the Appellant Company which began in the year 2011 vide FIR No. 213/2011, EOW, Delhi Police, the Company could not file relevant documents with the Respondent, thereby giving rise to the surmise that the company was not carrying on any business or operation for a period of two immediately preceding financial years, in pursuance of Public notice STK - 5 dated 27.04.2017. Consequently, its name was struck off vide notice STK-7 dated 30.06.2017 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-5/721 dated 27.04.2017 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-7/2879 dated 30.06.2017 (name of the company is reflected at Sl. No. 8522), 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 filed its Annual Returns and Financial Statement since Financial Years ended 2011, 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 31.03.2011 along with other statutory documents were duly filed by the Company with the ROC (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. Copies of Audited Financial Statements of the company for the period from F. Y. 2011-12 and 2018-19. The Balance Sheet as on 31.03.2019 reflects Current Assets inform of Cash and Bank Balances Rs. 54,10,015/-, other Current Asssets of Rs. 47,73,503/-and other income of Rs. 6,01,200/-.

ii. Copy of the TDS Certificates for the F. Y. from 2008-09 to 2018-19.

iii. Copy of FIR No. 2013/2011 dated 01.11.2011.

iv. Copy of the Charge Sheet dated 20.03.2019.

The ROC has filed its reply on 08.01.2020 in which it has been stated that the company had last filed its Annual Returns and Balance Sheet for year ended 2010-11. However, the ROC further submits that the company was struck off by the office of ROC, as neither the company was carrying on any operation for a period of two immediately preceding financial years, nor it obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.

The Income Tax Department had filed its reply on 16.01.2020 in which it has been submitted that the Company has last filed its Income Tax return for A.Y. 2011-12. Thereafter, no returns have been filed till date. The Revenue further states an amount of Rs. 857/- is due for the A. Y. 2011-12 and no cash deposits have been made by the company in the period of demonetization.

Records reveal that in the present case investigation against Appellant Company has been ongoing since 2011 and a chargsheet under sections 406/420/471 (read with 468, 467 IPC) - 120 B IPC, 66 (C) / 66(D)/71/73/74 IT Act in this regard has been filed by the investigation officer in the Court of CMM / South, Saket Court on 20.03.2019.

The grounds contemplated under section 252 of Companies Act, 2013, are that the company was 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 the 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 it 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 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 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.