Madhusudan Singh vs Registrar Of Companies And Anr.

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Ex-Director of Zigma Probuild (P) Limited (for brevity the ‘Company’), 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, issued vide notification no. ROC / DELHI / 248(5) / STK-7 / 4865 and published on 08.08.2018 by Registrar of Companies, the

respondent herein.

It is stated that the company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana on under

the Companies Act, 1956 on 24.05.2012 with CIN U70200 DL 2012 PTC 236441, having its registered office at 1205-1208A, 12th Floor, Inderprakash

Building, Barakhamba Road, New Delhi â€" 110001, within the jurisdiction of this Tribunal. The company is engaged in the business of

“construction of residential houses, commercial buildings, flats and factory’s sheds and buildings in or outside of India and to act as

builders, colonizers and civil and constructional contractors, to purchase in exchange, sell and mortgage any estates, lands, agricultural

lands, buildings easements or such other interest in any immovable property and to develop and to turn to account by laying out, plotting

and preparing the same for building purposes, constructing building, etc.â€​

The Authorized Share Capital of the company is Rs. 1,00,000/- divided into 10,000 equity shares of Rs. 10/-each. The 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, as per the Master Data Annexed.

It is submitted by the appellant that a sweeping action was initiated by the ROC at the instance of MCA in striking of the names of several

Companies who had failed to file their Statutory Returns. The appellant had not filed its Annual Returns and balance sheet since its incorporation,

thereby giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off vide STK-7 dated

08.08.2018 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance with

law and issuing a notification in the Official Gazette. The names of the effected companies was posted on its website.

Accordingly, the Company had purchased various lands for the purpose developing them in collaboration with other companies engaged in the

similar business vide registered sale Deeds, dated 08.08.2013 and 19.09.2014, respectively.

Mr. Madhusudan Singh, the Appellant herein and Mr. Stanislas Linda were appointed as Directors of the Company on 24.05.2012 and 25.06.2016,

respectively.

The financial statement upto the year ending 31.03.2014 alongwith other statutory documents were duly filed by the Company with the ROC (duly

reflecting in the Master Data of the Company). The company was active and was carrying out its business during the said period. The said facts are

evident from the Bank Account statement of the Company for the relevant period.

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 Sale Deed of the Company executed on 08.08.2013 at Khata / Khatauni no. 32/57, Khasra No. 415/246 as per jamabandi 2009-2010

admeasuring 00-04-38 Hectare and Khata / Khatauni No. 1/1, Khasra No. 250 as per Jamabandi 2009-2010 admeasuring area 00-02-03 hectare and

Khata / Khatauni No. 35/60, Khasra No. 247, 248, 249 and 251 as per Jamabandi 2009-2010 admeasuring 00-07-03 Hectare and Khata / Khatauni

No. 33/58, Khasra No. 416/246 and 417/246 as per Jamabandi 200-2010 admeasuring area 00-04-98 hectare totalling area 00-18-42 Hectare (1842 sq.

mtrs) including build up area (House) thereupon admeasuring 438 sq. mts. Situated in Mauja Sharai, Tehsil and District Shimla, Himachal Pradesh.

ii. The copy of Sale Deed of the Company executed on 19.09.2014 at Khasra No. 416/246 in piece and parcel of agriculture land admeasuring 00-76-

26 Hectare (7626 sq. mtrs) comprising Khata / Khatauni No. 34/59, Khasra No. 257 as per Jamabandi for 2009-2010 Situated in village Sarai and and

District Shimla, Himachal Pradesh.

iii. The copy of Bank Statements of the Company of HDFC Bank Ltd. for the period 13.09.2017 to 05.05.2016 showing various transaction details of

the company and reflecting closing balance of Rs. 2,22,941/- as on 05.05.2016.

iv. The copies of financial statements of the company for the financial years from 31.03.2016 to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects Fixed Assets as Capital work in progress Rs. 11,13,98,230/.

v. The copies of Income Tax Returns for the assessment years 2016-17 to 2018-19. The tax paid by the company for A.Y. 2018-19 is Rs. 0/.

The Appellant states that in the first week of September, 2018, it was learnt by the Appellant that in pursuance of a purported Public Notice bearing

No. ROC-DEL/248/STK-5/2018/2912 dated 18.06.2018, the Respondent herein had issued notice bearing no. ROC/DELHI/248(5)/STK-7/4865 dated

08.08.2018, whereby name of 24280 companies have been struck off w.e.f. 08.08.2018 from the Registrar of Companies.

The name of the company is reflected at Sl. No. 24243 of the notice bearing No. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.20118. In view of

the above notice, name of the company has been struck off from the Register of Companies and the Company has been dissolved.

The Income Tax Department has filed its reply on 26.06.2019 in which it has been submitted that the Company has not filed its Income Tax return

for A.Y. 2012-13 to 2013-14. However, the Company has filed its Income Tax Return from the FY 2014-15 to 2017-18. The Revenue further states

that there are no pending cases against the Company and no cash deposits have been made by the company in the period of demonetization.

The grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company carrying on business or was in operation at the

time of striking off its name, and where it appears “just†to the adjudicating authority that the name of the company is to be restored to the

Register of Companies and the Section 252(3) further contemplates that one of the above 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.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct

company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) 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 off 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.