M/s. Raj Vihar Infra & Consultants Ltd. And Anr. vs Registrar Of Companies And Anr.

This appeal has been filed by the company through its Director/Member Mr. Pawan Sharma (holding 60% of equity shares of the applicant

company) along with its member, Mr. Ranjeet Kumar Sinha, under Section 252(3) of the Companies Act, 2013 (for brevity as the Act') against the

order of striking off the name of the company passed by the respondent under section 248 (3) of the Act read with Rule 7 of Companies (Removal of

Names of Companies from the Register of Companies) Rules, 2016 published on 30.06.2017 vide notification no. ROC-DEL/248(5)/STK-7/2879.

The appellant company, M/s. Raj Vihar Infra & Consultants Ltd, (for brevity 'the company') was incorporated on 07.06.2011 under the provision of

Companies Act, 1956 and with the Registrar of Companies, New Delhi having CIN: U70101DL2011PLC218383.

The company is having its registered office at 2/121, New Rohtak Road, Anand Parbat, Industrial Area, New Delhi-110005.

The authorized capital of the company is Rs.5,00,000/- with 50000 equity shares of Rs.10/- each. The issued, subscribed and fully paid up capital of

the company is Rs.5,00,000/- with 50000 equity shares of Rs.10/- each.

The company is primary into the business of construction of building, residential, commercial and industrial building developing colonies, or act as

agent for purchasing, selling or letting on hire, land plot and houses whether multistoried commercial land or residential building on commission basis

etc.

It is stated by the appellants that no notice under section 248(1) of the Act in the form of STK-1 was served on company or any of the directors

before striking off the name of the company but may it be so, the appellant further submits that the failure to file financial statements and annual

returns with the Registrar of Companies, NCT of Delhi was due to inadvertence on part of the management and on part of the Professional who was

hired to comply the statutory requirement of filing of documents with Registrar of Companies and as such there was no wilful or mala-fide motive

behind non filing of the Financial statements and Annual returns.

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

last two years, 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. However, the Appellants have brought forward

the following facts about it being in operation and functional during the period of striking off:

a. Copy of the Bank Statement of Kotak Mahindra Bank for the period 01.04.2014 to 17.03.2018 having credit balance of Rs. 1,12,699.96/- with

various transaction details of the company, claiming the status of company as active during the period of striking off.

b. Copy of Work Order including Tax Invoices issued by appellant to its various clients for the period from 28.12.2016 to27.11.2017.

c. Copy of invoices and DVAT returns 01.04.2016 to 30.06.2017. The amount of Rs.57,682/- is carried forward by DVAT Return form dated

11.08.2017.

d. Copy of Income Tax Return and form 26AS for assessment year 2016-17 and 2017-18. The tax paid by the appellant for AN. 2017-18 is

Rs.62,121/- and refund for the same period is Rs. 18,470. Further the appellant has stated on affidavit that no cash has been deposited during the

period of demonetisation.

e. Copy of Financial Statement for the year ending on 2014 to 2017 reflecting the profit of Rs. 12,837/- for the year ending on 31.03.2017

The appellants have submitted that they have duly complied with all the procedural compliances as may be applicable to them and have duly

prepared, approved and adopted its Financial Statements up to the year ended 31.03.2017. but have failed to file the same with the Registrar of

Companies due to lack of professional guidance.

The Registrar of Company has stated that it has no objection if the name of the Company is restored in the Register of Companies 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. Thus, on perusal of abovementioned records produced by the company, the objection raised by the Registrar of

Company stands satisfied.

The Income Tax Department has not filed its reply in spite of several opportunities given by the Tribunal. The appellants have Income Tax Return

and form 26A5 for assessment year 2016-17 and 2017-18. Further the appellant has stated on affidavit that no cash has been deposited during the

period of demonetisation. The appellant has put on record enough evidence to show that the company is in operation and need to wait for the income

tax response is dispensed.

The Appellants have submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct

company as per section 252(3) of the Act. Thus, taking into consideration the provisions of Section 252(5) 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.

The Section 252(3) of the Act 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.

Accordingly, this appeal is allowed. The Public Notice of Registrar of Company striking 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 Company 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 petition is disposed of accordingly.

Let the copy of the order be served to the parties.