M/S Cosmic Orange Infraventures Pvt. Ltd. vs Registrar Of Companies And Anr.

Present appeal is filed by the company M/s Cosmic Orange Infraventures Private Limited, (for brevity the ‘Company’), through its Director

Sh. Lalit Tekchandani (for brevity the ‘Appellant ’), 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 of the Act read with Rule 7 of Companies (Removal of

Names of Companies from the Register of Companies) Rules, 2016 published on 08.08.2018 vide notification no. ROC/DEL/248(5)/STK-7/4865 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 26.06.2013 having CIN U70102DL2013PTC254391.

The company is having its registered office at Plot No.2, Second Floor, DDA Local Shopping Complex, M.O.R. Land New Rajinder Nagar, New

Delhi -110060.

Authorized share capital of the Company is Rs. 1,00,000/-and issued, subscribed and paid up share capital of the Company is Rs. 1,00,000/-.

The main objects of the company are:

i. To deal in real estate and infrastructure projects including construction of building, housing, educational, sub-ways, sub-stations, water supply,

apartments, holiday resorts, hotels, motels, railways, hospitals, nursing homes, warehouses, godowns, garages, commercial and all types of civil,

mechanical, electric works related thereto for execution and also build, lease or run business of hotel, resorts and hospitality related industry.

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 for

years 2014-15 to 2017-18, 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:

i. The copies of financial statements of the company for the financial years from 31.03.2014 to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects Fixed assets of Rs. 11,79,312/- and Cash and cash equivalents of Rs. 11,12,214/-.

ii. The copies of ITR filed for the assessment years 2014-15 and 2018-19. The tax paid for assessment year 2018-19 is NIL.

iii. The copy of relevant Form 26AS showing payment of TDS for the period of financial years 2013-14 to 2017-18 on the income accruing to the

appellant company.

iv. The copies of bank statements of the company for the period starting from 13.07.2013 to 16.08.2018, reflecting a closing balance of Rs. 334/- as on

16.08.2018.

v. The Copy of the agreement dated 25.12.2013 executed between the appellant company and Mr. Arun Kumar where Mr. Arun Kumar has invested

in the residential project of the appellant company for residential space situated at Tower PS2, 2nd Floor, Narendra Nagar, Tehri Garhwal,

Uttarakhand for total sale consideration of Rs. 1,10,84,560/-.

vi. The Copy of the agreement dated 03.12.2014 executed between the appellant company and Mr. Brijender Kumar Gupta where Mr. Brijender

Kumar Gupta has invested in the residential project of the appellant company for residential space situated at LS8-104, Narendra Nagar, Tehri

Garhwal, Uttarakhand for total sale consideration of Rs. 49,80,680/-

vii. The Copy of the agreement dated 22.07.2014 executed between the appellant company and Mrs. Saneh Lata where Mrs. Saneh Lata has

invested in the residential project of the appellant company for residential space situated at PS5-102, tower PS5, First Floor, Narendra Nagar, Tehri

Garhwal, Uttarakhand for total sale consideration of Rs. 97,29,010/-.

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 there is no outstanding demand against the Assesse and has no objection if the

company is considered for revival.

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.

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 Appellant have submitted sufficient evidence mainly the possession of immovable property by the company and further efforts of investment

to be made in immovable property by the company and that it has been in operation during striking off and therefore could not be termed as defunct

company. Thus, taking into consideration the provisions of Section 252 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.