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Judgment
Present appeal is filed by the company, M/s Modern Archinfrastructure Private Limited (for brevity the `Company'), through its Directors, Ms. Arti
Singh, and along with its member, Mr. Shashindra Singh, 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 06.01.2011 having CINU45200DL2011PTC212303.
The company is having registered office at UG-17, Westend Plaza, Kapashera, New Delhi-110037.
Authorized share capital of the Company is Rs. 10,00,000/-divided into 1,00,000 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 infrastructural works, civil mechanical electrical plumbing firefighting projects and engineering and construction works
and developers.
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 stated 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.
However, without going into the controversy of the latches in following the due procedure of law by Registrar of Companies before the final act of
striking off the name of the company from the register of companies maintained by Registrar of Companies, for non-filing of statutory documents by
company for the relevant period, through publication of notice on 30.06.2017, the appellants have preferred to prove with documents and records that
the company was in operation and doing business during the period of striking off the name of the company as a better remedy.
The Appellants have 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 Union Bank of India, from 01.04.2015 to 30.11.2017, reflecting various transactions done by the
company, during the period of striking off, having the closing balance of Rs. 23,316.50/ -
ii. The copies of financial statements of the company from 2013-14 to 2016-17. The Balance Sheet as on 31.03.2017 reflects tangible fixed assets of
Rs.1,43,892/- and revenue from operation of the company to the tune of Rs. 13,85,000/-
iii. The company has incurred employee benefit expense of Rs. 4,86,780/- in the financial year ending on 31.03.2017.
iv. The copies of Income Tax Return for the assessment years 2013-14 to 2017-18. The company has paid tax for assessment year 2017-18 of Rs.
15,944/-
v. The copy of VAT and CST returns for the year 2016-17 along with the copy of VAT registration certificate dated 07.04.2017 issued under
Haryana Value Added Tax Act, 2003.
vi. The copy of GST registration dated 01.07.2017 having GSTIN 06AAHCM3925A1ZV
vii. The copy of provident fund payment challans for the months of April, May and June 2017 reflecting payment of Rs. 10,962/- in June 2017.
viii. The copy of ESIC payment challan along with ESI registration for the month September 2017 to December 2017 reflecting payment of Rs.
8,832/- in December 2017.
ix. The copies of work order dated 25.02.2017 received from M/s Orris Infrastructure Private Limited for hardscape work at Sanskar Jyoti School
Project at sector-89, Gurgaon, Haryana.
x. The copies of purchase invoices in the name of the company issued by various entities from 22.04.2017 to 19.05.2018.
xi. The copy of rent agreement dated 31.12.2016 in favour of the company for the premises situated at plot no. 32, Firoz Gandhi Colony-II, near sector
-9 Petrol Pump, Gurgaon, Haryana.
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 not filed its reply in spite of several opportunities given by the Tribunal. The appellants have duly filed Income
Tax Returns for assessment year 2014-15 to 2017-18.
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. 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 in terms of above order.
Let the copy of the order be served to the parties.