M/S Brajodeep Infracon Private Limited vs Registrar Of Companies And Ors.

The present appeal is filed by the company M/s Brajodeep Infracon Private Limited (for brevity the ‘Company’), through its Directors Mr.

Braj Bihari, 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 27.04.2017 vide notification no. ROC-DEL/248(5)/STK-5/721 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

01.03.2012 under the Companies Act, 1956 with CIN U70102DL2012PTC232262.

The company is having its registered office at I/8/662, Sangam Vihar, New Delhi-110062.

The Authorized Share Capital of the company is Rs. 10,00,000/- divided into 1,00,000 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.

The main objects of the company are:

To construction of residents & commercial buildings, malls and maintenance, repairing, renovation of buildings malls etc.

And other main objects.

As per the notice of non-compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements for

financial years 2012-2013 to 2016-2017, 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 had not been filed with Registrar of Companies due to

inadvertence on part of the management.

The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:

a) The copy of Bank Statements of the Company of HDFC Bank for the period 04.04.2012 to 25.03.2018 showing various transaction details of the

company and reflecting closing balance of Rs. 2,54,670/- as on 25.03.2018.

b) The copies of financial statements of the company for the financial years from 31.03.2012 to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects Employee Benefits expenses of Rs. 1,04,339/- and Cash and Cash equivalents of Rs. 2,00,531/-.

c) The copies of Income Tax Returns filed for the assessment years 2015-16 and 2016-17. The tax paid by the company for A.Y. 2016-17 is

Rs.6,670/.

d) The copies of Employee’s State Insurance Statement by SBI bank for the period 31.10.2013 to 04.01.2014 and Employee’s Provident Fund

Statement for the period starting from 2012 to 2013.

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 submitted in its report that for the assessment year 2016-17, the appellant company has filed its return of income

belatedly on 08.03.2018 declaring loss of Rs.96,827/-. Since the ITR has been filed belatedly, the assessee is not eligible for carry forward the loss of

Rs. 96,827/- and the penalty proceedings u/s 271F of the Act are yet to be initiated.

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 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 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 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.