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Judgment
This appeal is filed by the company, Jabhase Company Private Limited (for brevity the `Company'), along with its three directors under Section
252(3) 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 read with Rule 7 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 published
on 30.06.2017 vide notification no. ROC-DEL/248(5)/STK-7/2879 by Registrar of Companies, the respondent herein.
The company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana on 14.04.2012 under the
provision of Companies Act, 1956 having CIN U51900DL2012PTC234349.
The company is having registered office at D-19, Sector 2, DSIIDC, Bawana Industrial Area, Delhi-110039.
Authorized capital of the Company is Rs.5,00,000/- divided into 50,000 equity shares of Rs.10/- each and issued, subscribed and paid up capital of
Rs.5,00,000/- fully subscribed divided into divided into 50,000 Equity Shares of Rs.10/- each.
The main objects of the company are:
i. To carry on the business of inter-alia of all types of trading i.e. purchases, sale, marketing, import, export of Garment Products, Cosmetics Products,
Food Processing Projects and Engineering Products i.e. Processing Equipment and Packaging Machines, and any First moving Consumable products.
And others.
As per the notice of non- compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements for the
last two years, 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 appellants further submit that no notice under section 248(1) of the Act in the form of STK-1 was served on Company or any of the directors
or any person on their behalf before striking of the name of the company.
The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copy of Bank Statement of the company, issued by Bank of India, from 01.04.2016 to 12.02.2018 reflecting various transactions done by the
company having closing balance of Rs. 1,75,597.73/-.
ii. The copies of financial statements of the company for the financial years from 31.03.2015 to 31.03.2017 The turnover as per last audited balance
sheet as on 31.03.2017 is Rs. 17,82,756/-
iii. The balance sheet as on 31.03.2017 also reflects Tangible and intangible of total value amounting to Rs. 3,12,930/-
iv. The company has incurred employee benefit expense of Rs.9,60,973/- for the financial year 2016-17.
v. The trade payables for the financial year 2016-17 is Rs. 2,15,783/-
vi. The copies of Income Tax Returns filed for the assessment year 2015-16 to 2017-18. The tax paid by the company for A.Y. 2016-17 is Rs. 2,540/-
vii. The copy of VAT Return in Form DVAT 16 having TIN 07970420094 for the period from 01.04.2017 to 30.06.2017 showing refund of Rs. 2,691/-
viii. The copy of sales tax return having TIN 07970420094 for the period from 01.04.2017 to 30.06.2017 showing NIL Return.
ix. The copy of GST Return in form GSTR-3B for the month of August to December in financial year 2017-18 having GSTIN 07AACCJ8147N1Z2
showing NIL Return.
It is further submitted by the Appellant that the failure to file financial statements and annual returns with the Registrar of Companies, NCT of
Delhi and Haryana was due to inadvertence on part of the management and due to lack of professional guidance and as such there was no wilful or
mala-fide motive behind non-filing of the Financial Statements and Annual returns.
The Registrar of Companies has stated that it has no objection if the name of the Company is restored on proving by the Company that it was
carrying on business or was in operation and the Company be also directed to file financial statements up to date with appropriate filing and additional
fees.
The Income Tax Department has not filed its reply in spite of several opportunities given by the Tribunal. The appellants have duly Income Tax
Returns for assessment year 2015-16 to 2017-18. The appellant has put on record enough evidence to show that the company is in operation.
The Section 252(3) contemplates that one of the 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 namely:
i. That the company at the time of its name was struck off was carrying on business.
ii. Or it was in operation
iii. Or it is otherwise just that the name of the company be restored on the register.
The Appellants have submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct
company as per section 252(3) of the Act. Thus, taking into consideration the provisions of Section 252(5) 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 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.