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Judgment
This appeal is filed by the company, M/s Jatin Garments Private Limited (for brevity the 'Company), through its Director, Mrs. Mala Devi, along
with its other Directors under Section 252(1) 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. ROCDEL/248(5)/STK-7/2879 by Registrar of Companies, the
respondent herein.
2 The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of
Delhi and Haryana on 16.09.2009 having CIN U17121DL20071=TC167841.
The company is having registered office at 1/25, Third Floor, Near Gurudwara Lalita Park, Laxmi Nagar, Delhi -110092
The authorized share capital of the company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each and issued, subscribed and paid up
share capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
The main objects of the company are:
i. To carry on the business of manufacturing, trading, buying, selling, dealing, producing, importing, exporting, whole selling, retailing and fabrication in
textile garments, ready-mades garments, yarn fabrics and other textile goods.
And other main objects.
As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements during
the period of strike off, 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 have submitted that no notice under section 248(1) of the Act in the form of STK-1 was received by the Company or any of the
directors or any person on their behalf, before striking of the name of the company. Further, the appellants submit that they have filed pending balance
sheets and copies of annual statements from financial year 2013-14 to 2015-16 with the Registrar of Companies on 17.06.2017 and the same is
reflected in the master data of the company at MCA website, which is post the notice of strike off dated 30.06.2017.
The Appellants have brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copies of financial statements of the company from 31.03.2015 up to 31.03.2017. The Balance Sheet as on 31.03.2017 reflects fixed assets in
the form of Industrial Plot valuing around Rs. 8,44,311.50/-
ii. The copies of Income Tax Returns filed for the assessment years 2016-17 and 2017-18 as NIL Return.
iii. The copy of Sale Deed dated 08.01.2007 and transfer Deed cum CIC Deed dated 24.10.2007 in favour of property with respect to Industrial Plot
No.-40, Block-C, Sector-88, Phase-II, Noida District, Gautam Budh Nagar (U.P.).
iv. The copy of Udyog Adhar Registration dated 30.12.2016 issued by Ministry of Micro, Small and Medium Enterprises.
It is further submitted by the Appellants 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 submitted in its report that there is no outstanding demand against the company and has no objection if the
company is considered for revival. However, Income Tax Department has stated that the company has filed its Return of Income for the first time of
the assessment year 2016-17 in December 2017. The appellants have stated in their rejoinder that the company being micro small company and due to
lack of finance available to the company, could not afford to employ any person on permanent basis to look after its day to day operation & statutory
compliances.
Further, the appellants have stated that the company has not received any notice since incorporation of non-filing of Return from the Income Tax
Department under clause(i) of sub-section (1) of Section 142 of the Income Tax Act. The aforesaid non-compliance of filing of yearly Income Tax
Return was totally unintentional, inadvertent and caused due to lack of proper legal/professional advise in time to promoters/Applicants and was
neither mala-fide not for any ulterior motive. Such non-compliance has neither caused any loss of revenue either to the Government or to any other
stakeholders nor caused any undue benefit from them.
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 some evidence that it has been in operation since incorporation and therefore could not be termed as defunct
company. 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 Appellants 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 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 Appellants 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.