Ms. Madhuri Tanuku vs Registrar Of Companies, Karnataka

T. Krishnavalli, Member (Judicial)

This Petition has been filed on 09.02.2023 by Ms. Madhuri Tanuku one of the Members of Protein Advanced Analytics (OPC) Pvt. Ltd. (hereinafter as Applicant/Petitioner), under Section 252(3) of the Companies Act, 2013, praying for restoration of the Company’s name i.e. Protein Advanced Analytics (OPC) Pvt. Ltd. in the Register of Companies maintained by Registrar of Companies, Karnataka (hereinafter referred as “ROC/Respondent”).

Protein Advanced Analytics (OPC) Pvt. Ltd. (hereinafter called as ‘Company’) was incorporated on 14.03.2020 under the Companies Act, 2013 bearing CIN: U85310KA2020OPC133374, and having its registered office at 1132, 13th Floor, Block 1, Silicon Oasis, Hosa Road, Bangalore – 560 100. The Authorised Share Capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each and paid up capital is Rs.10,000/- divided into 1,000 equity shares of Rs.10/- each.

The ROC has sent notice in Form STK-1. Further, notice in Form in STK-5 issued on 26.07.2022 and finally STK-7 was issued by the ROC on 19.11.2022.

It is stated that the Company is doing its business on an ‘ongoing concern’ basis and carried on business activities from the date of incorporation in good sphere and doing business continuously without breaking. The Company was maintaining the current account with the ICICI Bank, Bangalore and was transacting day to day business through this account and also prepared the financial statements up to the FY 2021-22 on time, get them audited on time within the time prescribed in law. Due to change in the clerical staff in the finance/compliance department, the new comers forgot to file the business commencement form within six months from the date of incorporation and audited and adopted financial statements of the last two years with ROC. The non-filing of these documents was a not intentional and wanton and the Company is ready to file them with applicable additional filing fee one this Tribunal restores its status to ‘active’.

It is also stated that the Company has filed IT Returns for the Assessment Years i.e. 2021-22 & 2022-23 with the IT Dept. The Petitioner has given affidavit and undertaking that she will file all the overdue returns and other related documents within 30 days upon restoration of the name of the Company by this Tribunal. The Petitioner declares that the Company has not filed any application/petition or appeal and also not pending before any Tribunal of law or any other authority or any other Tribunal.

The ROC filed its report vide Diary No.1421 dated 13.03.2023 by inter alia pointed out following observations:

“4. It is submitted that on verification of the MCA 21 portal when action under Section 248(1) of the Companies Act, 2013 (hereafter called as the ‘Act) was initiated against the eligible companies, it was seen that the Petitioner Company has not filed INC-20A for declaration of commencement of business under Section 10A of Companies Act, 2013. Therefore, the Respondent had reasonable cause to believe that the Petitioner Company was not carrying on any business or operation and therefore a notice in Form STK-1 and STK-5 notices were issued.

In the said STK-1 notice that was sent to the company and to the Directors of the company, it was inter alia mentioned that the Petitioner Company has not filed the INC-20A, a declaration for commencement of business with a period of 180 days of the date of incorporation nor has filed application under Section 455 of the Companies Act, 2013 and that the Respondent intended to strike off the name of the company from the Register of Companies as per Section 248 of the said Act, unless a cause is shown to the contrary within 30 days from the date of receipt of the STK-1 notice.

It is submitted that since no cause was shown either to the physical notices or to the website, Gazette and newspaper notices either by the Company or its Directors, and also since no declaration of commencement of business (INC-20A) was filed by the Petitioner Company till the day on which the list of defaulting companies were crystalized, the Respondent proceeded to strike off the name of the company with the effect from 15.11.2022 and the ROC had published a Notice in STK-7 in the Official Gazette on 19.11.2022 stating the names of the companies mentioned therein including the Petitioner Company which have been struck off the Register of Companies as per Section 248(5) of the Act. The Respondent has complied with all the procedure prescribed under Section 248 of the Companies Act, 2013 before removal of the name from the register.

The Petitioner Company states that due to change in the clerical staff in the finance/compliance department, the new comers forgot to file the business commencement form within 6 months from the date of incorporation. The non-filing of these documents was a non-intentional and wanton and the Company is ready to file applicable additional filing fee.

There is no inquiry, investigation, and complaints pending against this Petitioner Company. However, it is not known any disputes in the management of the Company/cases pending in court matters.

The Petitioner has prayed that the name of the Company be restored to the Register of Companies under Section 252 of the said Act. In view of the prayer by the Petitioner Company, and subject to the satisfaction of this Tribunal and in the event of this Tribunal willing to revive the Company, the Respondent humbly prays that this Tribunal may kindly:

(a) Direct the Petitioner to undertake to file all overdue returns up to date within 30 days in the MCA 21 Portal from the date of the order of Hon’ble NCLT reviving the Company and comply with the provisions of the Companies Act, 2013;

(b) The DIN of the disqualified Directors may not be ordered for activation as the matter about disqualification and DIN deactivation made by the Ministry by invoking section 164 (2) (a) read with 167 of the Companies Act, 2013 is before the various High Courts including the Division Bench of the Hon’ble High Court of Karnataka;

(c) Direct the Petitioner to pay cost as decided by this Tribunal to be paid online to the account of Central Government, Ministry of Corporate Affairs, towards the expenses incurred by the Respondent in initiating action under Section 248 of the Companies Act, 2013;

(d) The Registrar of Companies has incurred huge cost for striking off the Company due to default in filing statutory documents which includes manpower, advertisement, statutory cost, postal charges etc. It is humbly requested that reasonable cost may be imposed to the Petitioner and direct the Petitioner to pay cost as decided by this Hon’ble Tribunal to be paid online to the account of Central Government, Ministry of Corporate Affairs, towards the expenses incurred by the Respondent in initiating action under Section 248 of the Companies Act, 2013;

(e) The revival order be automatically vacated, if the above compliances are not made within a maximum period of 30 days from the date of receipt of the Order by the Petitioner”.

Heard Shri Girish Kumar, learned PCS for the Applicant/Petitioner. We have carefully perused the pleadings of the party and extant provisions of the Act, and the Rules made thereunder.

On perusal of the ROC report it is found that there was no important observations made against the Company. Therefore, in view of the facts and circumstances discussed above, we are inclined to allow the instant Petition.

Upon considering the facts and circumstances and the pleadings of the present Petition, this Tribunal is of the view that it is a fit case for restoration of the name of the Company and accordingly, the instant C.P. is allowed. Further, this order will be subject to payment of costs of (1) Rs.1,00,000/- to be paid in favour of “Pay and Accounts Officer, Ministry of Corporate Affairs, Chennai”, through MCA website (2) Rs.50,000/- to be paid in favour of “The Prime Minister’s National Relief Fund”, within three weeks from the date of receipt of the duly certified copy of this order.

This Petition is disposed of on the terms directed above. The ROC shall give effect to this order only after perusal of the compliance report of the cost imposed. The Company is directed to file all the required documents and shall fulfil all the other relevant statutory compliances, such as under the Income Tax Act, 1961, etc., in accordance with law within 30 days from restoration of its name in the Register of Companies maintained by the ROC.

Copy of this Order be communicated to the Petitioner and the Registrar of Companies, Karnataka.

Accordingly, C.P. No.16/BB/2023 is disposed of.