M/S ETERNO Constructions Private Limited vs Registrar Of Companies

Hemant Kumar Sarangi, Member (T)

This appeal is filed by the company, Etemo Constructions Private Limited (for brevity the `Company'), through its director Mr. Surinder Kumar

Katyal 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 27.04.2017 vide notification no. ROC-DEL/248/STK-5/721 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 27.03 .2008 having CIN U45200DL2008PTC175984.

The company is having registered office at 14B/35, Dev Nagar Karol Bagh New Delhi-110005. The Authorized share capital of the Company is

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

The main objects of the company are:

To purchase acquire, take lease or in any other such lawful manner, any land, building and structures and to develop the same and dispose of or

maintain the same and build township, markets, commercial complex with all or related conveniences thereon and to equip the same or any part of

other buildings, or any related amenities or conveniences such as drainage and to act as commission agents and dealers in farm land building whether

commercial, residential whether meant for purchase, sale, resale or let out.

ii. 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, 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 prior to and 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 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 and hence they were not afforded any opportunity of being heard before striking of the name of the company.

However, without going into the controversy of the lapses, 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, the appellants have preferred to prove with documents and records that the company

was in operation and doing business prior to and during the period of striking off the name of the company as a better remedy.

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

i. The copy of Bank Statement of the company of Punjab National Bank for the period 29.06.2016 to 15.04.2019 reflecting various transactions done

by the company and having closing balance of Rs. 76,249.29/-

ii. The copies of Financial Statements of the company for the financial years from 31.03.2016 to 31.03.2019. The Balance Sheet as on 31.03.2017

reflects revenue from operations of Rs. 83,270/- and Profit of Rs. 36,76,511.07/-

iii. The copies of Income Tax Returns filed for the assessment years 2018-19 & 2019-20. The tax paid for the assessment year 2018-19 is Rs.

6,81,646/-.

iv. The copy sale deeds dated 01.05.2008 executed between the Shri Vikesh Sabharwal as vendor and the appellant company as vendee with respect

to property situated at 11092A block no D-69, Shidipura, Karol Bagh New Delhi admeasuring about 657 square yds. each for total consideration of Rs

80,00,000/-

10 . 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 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 submitted its report but the appellant company has filed its Income Tax Return for the assessment year

2018-19 & 2019-20, which are duly annexed with the application.

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 that they have been in operation since incorporation and therefore could not be termed as a

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 off 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.