M/s. Ahuja Exims Pvt. Ltd. vs Registrar Of Companies

That the present Company Application has been preferred by M/s Ahuja Exims Private Limited (hereinafter referred as the Applicant Company)

under Section 420(2) of Companies Act, 2013 read with rule 11 of NCLT Rules 2016 with the following prayers :

Allow this Application by Correcting the mistake Apparent on the face of record;

Consider the documents filed on 17.10.2020 and thereafter;

Restore the name of M/s Ahuja Exims Private Limited in the register of RoC;

Consider the observation made by the Income Tax department in its report;

And pass such other orders/ directions as may deem just and proper in the interest of justice.

To put succinctly, the facts of the case are that the Applicant Company had preferred an Appeal under Section 252 of Companies Act 2013 before

this Tribunal, which was registered as Appeal No. 283/ND/2020. The Appeal was dismissed by this Tribunal vide order dated 21.10.2020.

That while the Appeal was under consideration, certain clarifications were sought from the Appellant Company on 05.10.2020, which were required

to be submitted by 08.10.2020. The list of the clarifications sought is reproduced below:

1) That the Appellant Company has submitted only the Balance Sheets from the Financial year 2015-16 to 2018-19 prepared subsequently

to the date of Striking off There is nothing else submitted on record to indicate that the Appellant Company was in operation at the time of

striking off

2) In view of the above, the Appellant Company is directed to submit the following:

a) The Bank statement from the year 2017 to 2019.

b) Any other document viz, IT Returns for the Assessment years from 2015-16 to 2019-20, to indicate that the Appellant Company was in

operation at the time of striking off

c) Details of Fixed Assets like Land, Building etc, if any, wherefrom the Appellant Company has been in operation.

d) The purpose of revival of the Appellant Company.

3) The Appellant Company is directed to provide the aforesaid documents by way of an Affidavit by the 8th October 2020.

That through this Application, it is submitted by the Applicant Company that it had filed the documents/clarifications on 17.10.2020. It has been

further submitted that the Income Tax Department had given details about the Returns filed by the Applicant Company from the Assessment Years

2007-08 to 2016-17 vide its report dated 07.10.2020.

That after going through the present Application and hearing submissions made by the Applicant Company, this Bench observes that the

clarifications were sought by this Tribunal from the Appellant Company on 05.10.2020, which were required to be submitted by 08.10.2020. The

Applicant Company itself through the present Application has admitted that it had filed the requisite clarifications/documents on 17.10.2020, whereas

the last date notified to file the same was till 08.10.2020. Further, the clarifications were sought from the Applicant Company not from the Income Tax

Department. Hence, there is no mistake apparent on the face of record in the order dated 21.10.2020, which may require any rectification.

That at this stage, through the current Application, consideration of documents filed after 08.10.2020 will tantamount to review of the order dated

21.10.2020, whereas this Tribunal is having no jurisdiction to review its own order. Here, it is worthwhile to refer to the Judgement of Hon'ble

NCLAT dated 17.09.2020, passed in the Review Application No. 09 of 2020 in the Company Appeal (AT)(Insolvency) No. 848 of 2019 in the matter

of Deepakk Kumar Vs M/s Phoenix ARC Pvt. Ltd.:

The term 'record' in Section 420 of the Companies Act, 2013 means record to the proceedings of the case. An error must be a 'patent

error' and not a mere 'wrong decision'. Where two views are possible and the matter is debatable, the order cannot be rectified by mistake

apparent from record as per decision 'Commissioner of Income Tax' V. 'East India Cotton Association Ltd.' (1984) 149 ITR pg. 274. When

there is no mistake apparent from the record in the judgement delivered by a Tribunal, then an application for review filed by the

concerned Applicant cannot be construed to be one under Section 420(2) of the Companies Act or under Rule II of (NCLAT' Rules, 2016.

It is worth for this Tribunal to recollect and recall the decision of Hon'ble Supreme Court in 'Lily Thomas' V. 'Union of India' reported in

AIR 2000 Supreme Court pg. 1650 at spl. Pg. 1665 wherein it is held that the power to rectify or amend the order is exercised to remove the

mistake without disturbing its finality.

Be that as it may, in view of the above, review of the order dated 21.10.2020 or consideration of documents at this stage is not permissible under

law. There is no mistake apparent on the face of record in the order dated 21.10.2020, which may require any rectification. The Application, being

devoid of merits, is Dismissed.

It is, however, made clear that any of the observations made in this order shall not be constructed as an expression of opinion on merits of the

documents annexed after 08.10.2020 by the Applicant Company. Further, the rights of the Applicant Company to agitate before any other forum shall

not be prejudiced on account of dismissal of this Application.

Let the copy of the Order be served to the Parties.