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Judgment
The appellant company M/s Hari Roadways Pvt. Ltd., (for brevity ""the company"") has filed this appeal under section 252 of the Companies Act,
2013 (hereinafter called as the Act') along with its Director against the order of the Registrar of Companies (ROC), NCT of Delhi and Haryana dated
07.06.2017. The order mentioning the name of the Company at Serial No. 8048 was duly published in Official Gazette on 30.06.2017. The name of the
company has been struck off from the Register of Companies maintained by the respondent ROC, under section 248(5) of the Act read with Rule 7
and Rule 9 of Companies (Removal of Name of the Companies from the Register of the Companies) Rules, 2016.
It is stated that the company is a private limited company, was incorporated on 31.01.1989 with the Registrar of Companies, NCT of Delhi and
Haryana under the Companies Act, 1956 vide CIN No. U74899DL1989PTC034860.
The appellant company M/s Hari Roadways Pvt. Ltd. is having its registered office at 57, Transport Centre, New Sabzi Mandl, New Delhi-110033.
The authorized share capital of the company is Rs. 5,00,000/- divided into 50,000 equity shares of Rs.10/-each and the issued, subscribed and paid
up capital of the company is Rs. 1,07,000/-.
The main objects of the company are:
a) To carry on the business of public carriers, transporters, and carriers of goods, passengers, merchandise, commodities and other product, goods and
luggage of all kind and description in any part of India and elsewhere on loan, water, air or by any mode of transport.
b) To carry on the business of booking cargos, goods and luggages with airlines, steamship, railways and road carriers and to carry on the business of
clearing and forwarding agent, warehouse keeper, wharfinger, contractors for loading and unloading of goods, luggage, parcels, materials, articles,
commodities, livestock and other movables.
c) To manufacture, build, construct, develop, buy, sell, import, export, assemble, equip, distribute, barter, let on hire, buy or sell on hire purchase or
installment, system or otherwise, deal in lorries, truck, bus, motor car, motor cycle, tank, tractor, engines, turbines implement and accessories and other
motor vehicles of all kinds and water and air and generally to carry on the business as manufacturers repairs, assemblers, mechanical engineers,
carriage builders of motor omnibuses taxi-cabs, lorries, motor cars and all other kind of vehicles and vessels for the transport of persons and goods,
whether propelled or moved by petrol, electricity, steam, oil, vapours and other motives or mechanical power.
d) To carry on the business of garage keeper, workshop owner, supplier, manufacturer, importer and dealers in petrol, electricity or other motives or
mechanical power, all types of motor parts, accessories, greases, lubricants, oils, coals, coke, firewood and the like.
e) To carry on the business of repairer and over haulers of all types of transport carriers and impediments.
It is the claimed that none of the Appellants nor any other person have received any notices on the from ROC as specified in the impugned order of
ROC dated 07.06.2017.
It is further submitted that the accounts of the company were duly prepared and audited that the company had engaged the services of a consultant
to perform the task of filing of Financial Statements and the Annual Returns with the ROC. The appellants were under the impression that the
financial statements were filed by the said consultant with ROC on regular basis. Hence the directors did not pay attention about the same) thereby
failure in the filing the financial statements for the financial years 2013-14, 2014-15, 2015-16 and 2016-17 with the ROC in compliance with the
provisions of Section 92(4) and Section 1371) of the Companies Act, 2013, occurred.
The Appellants have produced the following documents and records in support of their case showing that the Company was in operation during the
striking off period and is functioning till date:
a. The company has filed the statutory income tax returns till financial year 2016-17. The company has paid the tax to the tune of Rs. 24,136/-, hence
claims that it has been operating within the four corners of law and maintaining its corporate and statutory records.
b. The Company has been carrying out day to day business, preparing annual accounts and holding its board meetings, general meetings of
shareholders as and when required and maintained proper records, registers as per law.
c. It is further submitted that Profit &Loss Accounts of the Company & Balance sheets have been duly audited by the Statutory Auditors of the
Company. All the necessary documents including the Balance Sheet, Audit Report and Profit and Loss Accounts from year 2013-2014, 2014-2015,
2015-2016 and 2016-17 are ready with the Company for submission before the ROC copies of which are placed on record for perusal. The audited
balance sheet for the year 2016-17 of the company reflects incurred loss of Rs. 6,55,741/-.
d. The copy of the statement of bank account of the company reflects that the business of the company as a going concern, running in normal course
having balance amount of Rs. 7,10,972 on the 30.06.2017. The company had received few payments during the period 01.05.2017 to 30.06.2017 as
per the bank statement.
e. The company incurred expenses related to Employees' Salary, Telephone Bill and other administrative expense like electricity, water bills rent
payables, filing fees, vehicle maintenance charges etc., to the tune of Rs. 18,60,419/-
f. The annual turnover of the appellant company for the financial years 2014-15, 2015-16 & 2016-17 was Rs. 40,57,400/-, Rs. 41,79,650/- & Rs.
43,55,800/- respectively.
g. The Company has issued invoices to various parties during the month of June, 2017 with the last invoice made on 30.06.2017 for Rs. 44,535/-.
The non-compliance in terms of filing of statutory documents with ROC was unintentional and not with any ulterior motives and is not of such a
nature as to prejudice the interest of the creditors/ shareholders and/or public at large and it is just and equitable that the revival and restoration of the
name of the company be allowed by this Tribunal.
The ROC has filed reply and have opined that subject to the compliance of section 252 of the Act and proving that the company being in business,
the name of the company may be allowed to be restored.
The IT Department has also filed reply and have confirmed the filing of the IT returns upto the year 2016-17 by the company and regular payment
of income tax and also stating that no proceedings are pending against the company, thereby not objecting to the revival of the name of company.
From the records submitted by the appellants as narrated above it is proved that the company was carrying on the business and it was in operation.
Hence, the objections raised by ROC is satisfied. The Income Tax Department has confirmed that the Income-tax returns have been regularly filed by
the company till year 2016-2017.
According to the ROC the object of Section 252(3) of the Companies Act is to give chance to the company and its member to revive the company
which has been struck off. As per the ROC objections, the restoration be allowed on the rolls of ROC in the interest of justice if the appellants are
able to prove that at the time of striking of its name it was in operation.
The appellants have also submitted that in the event of revival and restoration of the name of the company in the Register maintained by the ROC
respondent, the company shall file all outstanding statutory documents for the period 2013-2014 to 2016-2017 with filing fees and the additional fees, as
applicable on the date of actual filing along with a certified copy of order of this Hon'ble Tribunal for restoration of the name of the company.
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 ROC 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.
In view of the above facts the appeal is allowed. The notification published in the Official Gazette of India dated 27.06.2017 and the order dated
30.06.2017 in so far as the name of the company shown at Serial No. 8048 bearing U74899DL1989PTC034860 is hereby set aside. The restoration of
the company's name to the Register will however be subject to its filing all the outstanding statutory documents as required under law and completion
of all formalities, including payment of any late fee or any other charges or penalties which are leviable by the respondent for late filing of statutory
returns and also on payment of cost of Rs. 25,000/- to the Prime Minister's Relief Fund. The name of the company shall then, as a consequence,
stands restored in the register maintained by the Registrar of Companies, as if the name of the company had not been ever struck off.
The appeal stands disposed off.