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Judgment
This appeal is filed by the company, M/s Kulwant International Private Limited (for brevity the 'Company), through its Director Mr. Sachinder
Singh, 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 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 10.01.2000 having CIN U74999DL2000PTC103171.
The company is having registered office at 3/2, III Floor Kirti Nagar Industrial Area, New Delhi.
Authorized share capital of the Company is Rs.50,00,000/- divided into 5,00,000 equity shares of Rs. 10/- each and issued, subscribed and paid up
share capital of the Company is Rs.1,35,200/- divided into 13,520 equity shares of Rs.10/- each.
The main objects of the company are:
i. To carry on the business of setting up departmental stores for sale, purchase and trading in terms of daily use, consumables, household items
including fresh, perishable, confectionary, soft drink, tinned, frozen and other items of daily/common use.
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 were overlooked inadvertently and had not been filed
with Registrar of Companies.
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 of Kotak Mahindra Bank, from 01.04.2013 to 07.04.2017, reflecting various transactions done by the
company during the period of striking off and having closing balance of Rs. 108,058 as on 29.03.2017.
ii. The copies of financial statements of the company for the financial years 31.03.2016 and 31.03.2017. The Balance Sheet as on 31.03.2017 reflects
cash and cash equivalents of Rs. 109, 464/- and loss of Rs. 430,011/ -
iii. The company has trade receivables of Rs. 2,673,418/- as on 31.03.2017.
The copies of Income Tax Returns filed for the assessment years 2016-17 to 2017-18. The tax paid for assessment year 2016-17 is Rs. 9490/-.
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 not with 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 outstanding demand against the Assessee of Rs. 1,78,500/- for assessment
year 2009-10 and Rs. 630/- of FBT. It 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 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 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.