M/s. Axios Aviation Services Pvt. Ltd. vs Registrar Of Companies And Anr.

The appellant company M/ s. Axios Aviation Services Pvt. Ltd. (for brevity ""the company"") has filed this appeal under section 252 of the

Companies Act, 2013 (hereinafter called as the Act') through its Director Mr. Munish Gupta against the order of the Registrar of Companies (ROC),

NCT of Delhi and Haryana dated 07.06.2017. The order mentioning the name of the Company at Serial No. 2931 with CIN No.

U62100DL1999PTC098133 was duly published in Official Gazette on 30.06.2017. The name of the company has been struck off from the Register of

Companies maintained by the respondent ROC, under section 248(5) of the Act read with Rule 7 and Rule 9 of Companies (Removal of Name of the

Companies from the Register of the Companies) Rules, 2016.

It is stated that the company is in corporate under the provisions of Companies Act, 1956 as a Private Limited Company with the Registrar of

Companies, NCT of Delhi and Haryana on 29th January, 1999, having CIN U62100DL1999PTC098133.

The registered office of the company M/s. Axios Aviation Services Pvt. Ltd. is situated at 184 A, Ground Floor, Kh. No.1021, Near CISF Camp,

Mahipalpur, New Delhi-110037.

The authorized share capital of the company at the time of filing of this appeal is Rs.5,00,000/- divided into 500,000 equity shares of Rs.10/- each

and the issued, subscribed and paid up capital of the company is Rs. 1,00,200/- divided into 10,020 Equity Shares of Rs.10/- each.

The main objects of the company are:

To carry on the business of running Air Cargo Charters, buying, selling, renting, leasing and manufacturing of Aircrafts and Helicopters and for

providing all kinds of Aerial Services & other main objects.

It is the claimed that neither the Appellant nor any other person on behalf of the company has received any notices from ROC before publishing the

name of the appellant company in the Official Gazette on 27.04.2017.

The appellant company has complied with the statutory requirements of filing financial statements and annual returns till the financial year 2011-

2012 with the ROC.

It is further submitted that the Company assigned the work of filing of statutory returns and documents to the accountant However, failed to file the

same and did not inform the company or its directors, even though every year the balance sheet were prepared and audited.

It is further submitted by the Appellant that the company and its directors were not aware about the striking off the name of the company by the

Register of Companies till the accounts professional visited the ROC portal for uploading the balance sheet as on 31.03.2017.

The appellants further submit that without going into controversy of legality of striking off and in order to expedite the restoration of the name of

the company on the Roll of the ROC portal, the Appellant chooses to bring the following facts about it being in operation and functional during the

period of striking off and expedite the revival of the company:

a. The copy of financial statements of the company for the financial year from 2012-13 to 2016-17. The company balance sheet reflects the profit of

Rs. 51,432/- in the year 2016-17.

b. The copy of the statement of bank account of the company with HDFC reflects the closing balance of Rs13,70,050/- as on 12.12.2017.

c. The copies of Income Tax Returns filed for the assessment year 2014-15 to 2017-18. The tax paid by the company for A.Y 2016-17 is Rs.47,395/-

and for A.Y. 2017-18 is Rs. 23041/-.

d. The copy of permission letter dated 31.03.2013 from office of the Addl. Commissioner of Customs (Export) for feeding of Numeric Prefix '412' and

alpha code 'VI' and executed bond Rs. 5,00,000/- and Guarantee of Rs. 5,00,000/- with Deputy Commissioner for Air Cargo export and entered at Sr.

No. 105/Exp/Shed and 98/Exp/Shed.

e. The copy of license/ permission dated 21.04.2015 from Government of India, office of Director General of Civil Aviation for security clearance of

Company.

f. The copy of the authority letter dated 20.04.2015 from Air Asia for providing liaise consist of permissions for overfly and landing across the country.

g. The copy of agency agreement dated 09.12.2016 for selling cargo carriages with M/s Rossiya Airlines JSC to represent the carrier in selling air

carriage.

h. The copy of Service Tax registration certificate having Registration No. AACCA0444PSD002.

i. The copy of GST registration certificate dated 11.10.2017 having registration No. 07AACCA0444P2ZM.

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 there was no wilful or mala-fide

motive behind non-filing of the Financial Statements and Annual returns.

The Registrar of Companies filed reply and 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 filed its report. All the IT returns till 2017-18 are duly filed. The Income Tax has no objections if the company is

revived.

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:

a). That the company at the time of its name was struck off was carrying on business.

b). Or it was in operation

c) 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 as per section 252(3) of the Act.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.