Kewal Kishan Kumar And Anr. vs Registrar Of Companies And Anr.

This appeal is filed by the erstwhile directors Mr. Kewal Kishan Kumar and Ms. Sunanda of the company, M/s Divayarth Leasing And Finance

Private Limited (for brevity the ‘Company’), 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. ROC-DEL/248(5)/STK-7/2879 by

Registrar of Companies, the respondent herein.

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 24.02.1995 having CIN U74899DL1995PTC065799.

The company is having registered office at 24, SSI G T Karnal Road, New Delhi.

Authorized share capital of the Company is Rs.10,00,00,000/- divided into 1,00,00,000 equity shares of Rs.10/- each and issued, subscribed and paid

up share capital of the Company is Rs.9,12,03,900/- divided into 91,20,390 equity shares of Rs.10/- each.

The main objects of the company are:

i. To carry on and undertake the business of finance, investments including hire-purchase, leasing, bill discounting, money changer and operations of all

kinds of plant and machinery automobiles, shares and debentures including government, securities, laud and building, consumer durable goods or

otherwise deal with in any manner whatsoever including resale thereof regardless of whether the property purchased and lease be new and/or used.

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 since

incorporation, 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 company was in operation and the business activities were carried out by the company 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 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 company issued by Axis Bank, from 05.04.2011 to 23.12.2016, reflecting various transactions done by the company

during the period of striking off and having closing balance of Rs.10,603/-

ii. The copies of financial statements of the company for the financial years form 31.03.2006 to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects cash and cash equivalent of Rs. 3,07,492/- and Loss of Rs.13,78,18,590/-

iii. The copies of Income Tax Returns filed for the assessment years 2007-08 to 2017-18. The tax paid for assessment year 2016-17 is NIL.

iv. The copies of G.A.R.7 challans of returns filed by the company for financial year from 31.03.2006 to 31.03.2013.

v. The copies of TDS certificate for the financial year 2016-17 and 2017-18.

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 an outstanding demand of Rs. 20,63,45,469/- for the assessment year from

2012 to 2015 against the Assessee but has no objection if the company is considered for revival.

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 Appellant have submitted 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 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 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.