M/S Shanaescharya Travel Pvt. Ltd. And Ors. vs Registrar Of Companies And Anr.

This appeal has been filed by the company alongwith its directors 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 (1) of the Act read with Rule 7 of Companies (Removal

of Names of Companies from the Register of Companies) Rules, 2016.

The Company was incorporated on 23.08.2012 under the provision of Companies Act, 1956 with the Registrar of Company, New Delhi having

CINU74900DL2012PTC240777.

The company M/S Shanaescharya Travel Pvt. Ltd is having its registered office at 5495/18, S/F Gandhi Market, Sadar Bazar, Delhi 110006.

The company (for brevity 'the company') is primary into the business of Tours and Travels. The main objectives of the company are:

a. To encourage and provide the business as package tour operators, daily passenger service operators, tour operators, travel agents, ship booking

agents, railway ticket booking agents, airlines ticket booking agents.

b. To carry on the business of travelling by providing cabs and private vehicles on rent basis and conveyances of all kinds and to transport passengers,

goods, commodities, livestock, merchandise.

c. To carry on the business as tourist agents and contractors and to facilitate travelling and to provide for tourists and travelers, the provision of

convenience of all kinds in the way of through tickets, sleeper cars, or berths, reserved places, hotel, motel and lodging.

The authorized share capital of the company is Rs. 1,00,000/- and paid up share capital is Rs.1,00,000/- fully subscribed divided into 10,000 equity

shares of Rs.10/- each.

It is stated by the appellant that no notice under section 248(1) of the Act in the form of STK-1 was served on any of the Appellants before striking

of 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 Company has brought forward

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

a. Copy of the income tax returns filed with acknowledgement receipts for the financial years 2011-12 to 2015-16. The tax paid for AY 2015-16 is Rs.

4,45,831/-.

b. Copy of Bank Statement of Accounts issued by IDBI Bank Limited, New Delhi showing transaction details and various entries of withdrawal and

deposits for the period 27.05.2016 to 17.08.2017 reflecting closing balance of Rs.4,691.50/-.

c. Monthly contribution challan towards Employees Provident Fund Organisation for the months of March- 2017 to October- 2017 amounting to Rs.

6915/- per month with respect to six regular employees.

d. It is submitted that the Company has number of workers and employees and the company has incurred salary expenses during the financial year

2016-17 amounting to Rs. 36,491.00/- per month.

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 concluded that the Company has filed its returns up to AY 2015-16 and the Demand of Rs. 24.89, 140/- is

outstanding against the company for the same period. It is also stated that the Company has deposited cash of Rs. 28, 40,000/- in the Bank accounts

during demonetization period and no Income Tax Return has been filed for AY 2017-18 in spite of the notice issued under section 142(1) of the

Income Tax Act 1961. However, the Appellant has denied the claim of Income Tax dues as claimed by the IT department and stated that no notice

has been received by them under section 142(1) as per the order dated 20.12.2017 under section 144 of Income Tax Act, 1961. Further to overcome

the controversy the director Mr. Birender Singh on personal appearance before this court gives personal undertaking to comply with the provision

under Income Tax Act, 1961 and cooperate in all the inquiries/investigations, if any, to be conducted by Income Tax Department.

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:

a. That the company at the time of its name was struck off was carrying on business.

b. Or it was in operation

c. Or it is otherwise just that the name of the company be restored on the register.

After perusing the record brought forward by the company and satisfying the objections raised by the Income Tax Department by the personal

undertaking of one of the Director Mr. Birender Singh to comply with the provision under Income Tax Act, 1961 and cooperate in all the

inquiries/investigations, if any, to be conducted by Income Tax Department, the company should be restored.

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.