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Judgment
Dr. Deepti Mukesh, J
The present appeal is filed by the Mis GLITZ Pharma Pvt. Ltd. and its directors (for brevity the `Company'), under Section 252(1) of the Companies Act, 1956 (for brevity the Act') against the order of striking off the name of the company, passed by the Respondent no. 1 under section 248 (1) of the Act, issued vide notification No. ROC/DELHI/248(5)/STK-7/2879 and published on 30.06.2017 by Registrar of Companies.
The Appellant states 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 12.05.2011 with CIN U24232DL2011PTC219065, having its registered office at 152, 1st Floor Transport Centre, Punjabi Bagh, New Delhi - 110052, within the jurisdiction of this Tribunal.
The Authorized Share Capital of the company is Rs. 1,00,000/- divided into 10,000/- 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 manufacture, sell, purchase, export, deal in and act as agents, distributers, suppliers in pharmaceuticals, medical preparations and compounds, enzymes, formulations, intermediates for the manufacture of pharmaceutical drugs, injectables, sanitary & surgical supplies and to act as purchasing & selling agents for the aforesaid business for any educational and research institutions, medical colleges, hospitals, dispensaries, societies, persons and other authorities whether in Govt. or private sector in India or elsewhere.
(ii) And the other main objects.
The Respondent herein had issued Public Notice bearing No. ROC/DELHI/248/STK-5/721 dated 27.04.2017 at entry no. 8641. Consequently, its name was struck off vide notice bearing no. ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017 (name of the company is reflected at Sl. No. 7249).
As per the notice of non-compliance of provision of the Companies Act, 2013, the said company has not filed its Annual Returns and Balance Sheet from incorporation F. Y. 2011-12 to 2016-17 hence, 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 had carried out its main business and achieved turnover of Rs. 1,321,110/- (Rupees Thirteen Lac Twenty-One Thousand and One Hundred Ten). But due to lack of suitable business proposals and additional funds, the company could not carry forward its business in subsequent years. That due to down fall in the operations of the Company, the accountant left the company and due to lack of proper professional guidance, oversight and inadvertent reasons, the Applicant Company could not file the Audited Financial Statements and Annual returns with the Registrar of Companies, NCT of Delhi & Haryana as required under the Companies Act, 1956 and/ or the Companies Act, 2013 for the Financial Years 2011-2012 to 2016-2017.
The Appellant has brought forward the following documents about it being in operation and functional during the period of striking off:
i. Copy of Bank Statements of the Company of Indian Bank reflecting balance of Rs. 6,42,944/- available in 2018 and certificate from Indian Bank declaring that the Company has account with bank from 2011, which is freezed on 05.09.2018 as Company is struck off by ROC. The bank has also confirmed the foreign remittance of US $ 5000 as on 21.02.2018 in said company account.
ii. Copies of Audited Financial Statements of the company for the period from 2011-12 to 2016-17. Financial Statement for F. Y. ended 2017 reflects current assets of Rs. 36,43,844/-.
iii. Copies of Income Tax Returns for the Assessment Years 2016-17 & 2017-18 with NIL income.
iv. Copy of complaint filed by one of the directors of company vide CC no. 2850/15 (613257/16), pending before court of Metropolitan Magistrate, South East, Saket, alongwith case status reporting the hearing pending upto 2018.
The ROC has filed its reply on 07.06.2019 in which it has been submitted that the Company had not filed its Financial Statement since incorporation.
However, the ROC further submits that the company was struck off by the office of Respondent because neither the company was carrying on any operation for a period of two immediately preceding financial years, nor obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.
The Income Tax Department has filed reply recording that scrutiny proceedings are pending for A. Y. 2016-2017 and other proceedings before Appellate Authority.
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 is set aside. The restoration of the company's name to the Register of Registr2r 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.