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Judgment
Pradeep R. Sethi, Member (T)
The appeal is filed by M/s. ISS Golden Goa Developers Pvt. Ltd. (Company) under Section 252 of the Companies Act, 2013 (Act) for restoration
of the name of the company in the Register of Companies maintained by the Registrar of Companies, Delhi & Haryana (ROC). Vide order dated
23.01.2018, it was directed that the Union of India, Ministry of Finance, Department of Revenue, through Department of Income tax C/o Principal
Chief Commissioner of Income-tax, C.R. Building, IP Estate, New Delhi-110002 is a necessary party and the same be impleaded as Respondent. The
amended Memo of Parties was filed by the Company by diary No. 1727 dated 26.02.2018. The Memo of Parties given above is as per the amended
memo filed.
It is stated in the appeal that the company was incorporated on 22.04.2008 and its CIN is U452000DL2008PTC177051. Its registered office is
stated to be situated at 202, EIL Apartment, Plot No.13, Pocket-6, Nasirpur, Dwarka, Phase-I, New Delhi. Therefore, the jurisdiction lies with this
Bench of the Tribunal.
The authorised, issued, subscribed and paid up capital of the company is stated to be Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each
and the entire share capital is stated to be held by the Directors of the company.
The memorandum and articles of association are filed at Annexure C. The main objects include:
To engage in infrastructure development, Real Estate Promotors, Developers & Project Management Association including civil, mechanical,
electrical and all other types erection, commission projects, project trading as well as consultant for execution of projects on turnkey basis for
equipments of industrial, domestic and other purposes.
It is stated that the company has been in operation since incorporation and was exploring business opportunity between 2010-2016 but due to slow
down in Real Estate scenario, the business was affected and it could not start its proposed project. It is stated that the company had prepared all
annual documents since 2010, but inadvertently could not file its annual documents. It is submitted that the company did not receive any notice u/s. 248
from the ROC and that the company was filing the income tax return since 2014 and mere non-filing of balance sheet and annual return with the ROC
does not mean that a company has failed to do its business operation since incorporation or a company is not carrying on any business or operation for
a period of two immediately preceding financial years. It is stated that the name of the company was struck off from the registrer of companies vide
form No. STK-7 dated 30.06.2017 and the name of the company is at serial No. 9235 of Annexure â€"A of the form No. STK-7.
It is stated that the directors of the company filed petition before the Hon’ble High Court of Delhi for removal of disqualification attracted u/s.
164(2) of the Act and the Hon’ble High Court of Delhi vide its order dated 20.12.2017 directed the directors of the company to file appeal before
the NCLT for revival of the company and hence the appeal is filed. The copy of the order dated 20.12.2017 of the Hon’ble High Court of Delhi is
at Annexure O. It is stated, inter alia, in para 6 of the order that the ld. Counsel for the petitioner seeks to withdraw the present petition with liberty to
file an appeal before the NCLT (if not already filed).
It has been prayed that ROC be directed to restore the name of the company in the register of companies in accordance with section 252(3) of the
Act.
Vide order dated 23.01.2018, notice to show cause as to why petition be not admitted was directed to be issued to the Respondents. Reply-cum-
affidavit on behalf of the ROC was filed vide diary No. 2048 dated 07.03.2018. It has been stated that the company filed its last annual return and
balance sheet for the financial year ended on 31.03.2009 and 31.3.2009 respectively. It is stated that the company was struck off in terms of Section
248(1) of the Act read with Rule 7, Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016
because of the fact that as per the record of the office of the ROC, neither the company was carrying on any operation for a period of two
immediately preceding financial years nor obtaining the status of a dormant company u/s.445 of the Act. It is prayed that the company be directed to
prove that it was carrying on business or was in operation and that it is just that the name of the company be restored to the register. It has also been
prayed that the company be directed to file the financial statements up-to-date.
The Income tax Department has submitted report vide diary No. 2514 dated 19.03.2018 stating that the company has filed its income tax returns
from assessment year 2008-09 to 2016-17 and that as per ITD system, no outstanding demand is pending against the company.
We have carefully considered the submissions of the learned Authorised Representative for the company; the Company Prosecutor and the
learned Counsel appearing on behalf of the Income tax Department and have also perused the records. The relevant provisions of section 252(3) of
the Act are as under:
252(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 appeal is filed by the company and within the time period given in Section 252(3) of the Act. Therefore, the only issued requiring
consideration is whether the company was, at the time of its name being struck off, carrying on business be restored to the register of companies. As
per STK-7 dated 30.06.2017, the name of the company was struck off register of the companies on 07.06.2017.
The financial statements for the financial year ending 31.03.2010 to 31.03.2017 have been filed at Annexure E. No revenue from operation is
being shown in the financial statement, except in the financial year ended 31.03.2015 in which contract receipts of Rs.20, 65,350/- have been shown.
However, financial costs and administrative expenses are shown to be incurred in the financial year ended 31.03.2015 to 31.03.2017. It has been
submitted by the company that it was exploring business opportunity in all the years between 2010-2016 but due to slow down in the real estate
scenario, the business was affected and it could not start its proposed project.
The balance sheet as on 31.03.2017 shows other current liabilities of Rs.47,15,000/-. As per details in Schedule 4, the amount, inter alia, include
advance from party New Excellent CGHS Ltd. Of Rs. 24,50,000/- and advance from sale of flat received from Simi Sharan (Rs.7,.50,000/-) and Smt.
Sonal Verma (Rs. 15,00,000/-). As regards New Excellent CGHS Ltd., a copy of agreement dated 09.06.2011 has been filed at Annexure G by which
civil works of Rs.5,82,46,650/-were to be completed by the company and a mobilisation advance of Rs.10,00,000/- was to be paid by the Cooperative
Housing Society to the company.
As regards the advance from sale of flats received from Sonal Verma and Simi Sharan, the registration forms-cum-agreement to sale of the flat
have been filed at page 1 to 6 of diary No. 11969 dated 29.11.2018. The agreement are dated 31.12.2012 and 17.07.2013 respectively and are in
respect of a residential colony scheme known as Sadanand Enclave situated at Khata No. 31, Khasra No. 157 at Vamanpuri, Tehsil Sitarganj, District
Udham Singh Nagar, Uttarakhand. Development agreement dated 15.06.2013 between Shri Jagdish Chander Sharma and the company in respect of
the property at Vamanpuri has been filed at page 7 of the diary No. 11969 dated 29.11.2018. The development agreement notes that the developer
agrees to pay Rs.38.90 lakhs to the land owner Sri Jagdish Chander Sharma.
[Vide diary No. 11969 dated 29.11.2018, agreement for construction-cum-sale dated 25.07.2008 between Shri R.S. Gowda and the company has
been filed at page 16 thereof. As per the agreement, the company is the purchaser/financier for a two bed room flat in Goa. The company agreed to
finance a sum of Rs. 16,00,000/-. Loans and advances given by the company as on 31.03.2017 ( page 138 of the appeal) include Rs.12,50,000/- to
R.S. Gowda advance against purchase of flat.
In view of the above evidence, the company’s contention is acceptable that it was in operation since incorporation and that it was exploring
business opportunity but due to slow down in the real estate scenario, the business was affected and it could not start its proposed projects. We have
already noted above that in financial year 2015-16, the company had shown contract receipts of Rs.20,65,350/- and that financial costs and
administrative expenses are being expended from financial year 14-15 onwards. We find that even in the earlier years, such costs were being
expended. We, therefore, conclude that the company has been able to show that it was carrying on business and was in operation at the time of its
name being struck off from the register of companies.
The conditions provided for u/s. 252(3) of the Act are thereby satisfied. We, therefore, allow the appeal and direct that the name of the company
ISS Golden Goa Developers Pvt. Ltd. be restored by the ROC to the register of companies.
Accordingly, this appeal is allowed. The Public Notice of Registrar of Companies striking the name of the company is set Companies is ordered
subject to:
i. the Income Tax Department being at liberty to proceed against the company for non-filing/delayed filing of returns and for recovery of the demand,
if any
ii. subject to its filing with the ROC 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 ROC for the late filing of statutory returns,
iii. and also subject to payment of cost of Rs. 25,000/- to the Prime Minister’s Relief Fund. The name of the Company shall then, as a
consequence, stand restored to the Register 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.