M/S G. S. Housing Private Limited vs Registrar Of Companies And Anr.

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Directors of M/s G. S. Housing Private Limited (for brevity the ‘Company’), under Section 252 of the

Companies Act, 1956 (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, issued vide notification no. ROC / DELHI / 248(5) / STK-7 / 4865 and published on 08.08.2018 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 under the

Companies Act, 1956 on 12.10.1992 with CIN U74899 DL1992 PTC 050590, having its registered office at B-45, Greater Kailash â€" I, New Delhi

â€" 110048, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 5,00,000/- divided into 50,000 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, as per the Master Data Annexed.

The main objects of the company are:

(i) To acquire by purchase, lease, exchange or otherwise and to sell, transfer, dispose of or deal in land buildings and hereditament of any tenure or

description and any estate or interest therein and any rights over or connected therewith and to develop and turn the same to account as may seem

expedient and in particular by preparing, lay out the same for building purpose and by constructing, reconstructing, altering, pulling down improving

developing, decorating, renovating, designing and maintaining, offices, flats, houses, factories warehouse, shops, stores, wharves, building, works and

conveniences of all kinds and by consolidating or sub-dividing properties.

(ii) To manage land, building and other property, to collect rents, service charges and income.

(iii) To carry on the business of builders, engineers, contractors, merchants and dealer in all kinds of building material, brick and tile makers, job

masters and house agent.

(iv) To carry on business of colonizers, landlords and proprietors of flats.

It is submitted by the appellant that a sweeping action was initiated by the ROC at the instance of MCA in striking of the names of several

Companies who had failed to file their Statutory Returns. The Appellant had not filed its Annual Returns and Balance Sheet for the Financial Years

2015-16 and 2016-17, thereby giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off

vide STK-7 dated 08.08.2018 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in

accordance with law and issuing a notification in the Official Gazette. The names of the affected companies were posted on its website.

The Appellant states that in pursuance of a purported Public Notice bearing No. RoC/Delhi/248(1)108276-2018 dated 08.06.2018, the Respondent

herein had issued notice bearing no. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018, whereby name of 24280 companies have been struck off

w.e.f. 08.08.2018 from the Registrar of Companies.

The name of the company is reflected at Sl. No. 7209 of the notice bearing No. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018. In view of the

above notice, name of the company has been struck off from the Register of Companies and the Company has been dissolved.

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 the

period 2015-16 and 2016-17, 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 financial statement upto the year ending 31.03.2015 alongwith other statutory documents were duly filed by the Company with the ROC (duly

reflecting in the Master Data of the Company). The company was active and was carrying out its business during 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 said facts are evident from the Bank Account statement of the Company for the relevant period.

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

i. The copy of Sale Deed executed on 23.08.1996. The land admeasuring 1000 sq. yards at N-4, NDSE Partâ€" 1, New Delhi â€" 110049.

ii. The copy of Lease Deed executed on 23.04.2009 in respect of land admeasuring 1000 sq. yards at N-4, NDSE Part â€" 1, New Delhi â€" 110049.

Property No. N - 4, NDSE Part -1, Second Floor.

iii. The copy of Bank Statements of the Company of ICICI Bank Ltd. for the period 01.04.2017 to 02.08.2018 showing various transaction details of

the company and reflecting closing balance of Rs. 15,980.64/- as on 02.08.2018.

iv. The copies of financial statements of the company for the period from 31.03.2015 to 31.03.2018. The Balance Sheet as on 31.03.2018 reflects

Revenue from long term borrowings is Rs. 8,899,803/- and Current Assets from Inventories Rs. 12,784,210/-and other current assets of Rs. 480,030/-.

v. The copies of Income Tax Returns for the financial years 2015-16 to 2017-18. The tax paid by the company for A.Y. 2017-18 is Rs. NIL.

The Income Tax Department has not filed any reply in spite of being given repeated opportunity to do the same. Hence, the present appeal is

being decided in the absence of any reply from the Income Tax Department. However, the Company has filed its Income Tax Return from the

Financial Year 2015-16 to 2017-18.

The appellant has stated that, he has deposited cash amounting to Rs. 1,48,000/- in it Bank account after demonetization as cash in hand lying with

the company.

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 Appellant has submitted sufficient evidence that it has been in operation since incorporation and during the period preceding strike off,

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 off 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.