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Judgment
This appeal is filed by the company, MIS. Tecton Homes Private Limited (for brevity the 'Company), along with its directors and shareholders
under Section 252(1) of the Companies Act, 2013 (for brevity 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 published on 30.06.2017 vide notification no. ROC-DEL/248(5)/STK- 7/2879 by Registrar of Companies, the respondent herein.
The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of
Delhi and Haryana on 18.03.2011 having CIN U45400DL2011PTC216092.
The company is having registered office at 3/2, Industrial Area, Kirti Nagar, New Delhi-110015.
Authorized capital of the Company is Rs.25,00,000/- divided into 2,50,000 equity shares of Rs.10/- each and issued, subscribed and paid up capital
of the company Rs.1,00,000/- fully subscribed divided into divided into 10,000 Equity Shares of Rs.10/- each.
The main objects of the company are reproduced hereunder:
i. ""To carry on in India or elsewhere, either alone or jointly with one or more person, government, local or other bodies, the business of builders,
contractors, designers, architects, interior decorator, furniture consultants, constructors, financiers & brokers of all types of buildings and structures
including houses, flats, apartments, offices, go downs, warehouses, shops, factories, sheds, hospitals, hotels, holiday resorts, shopping cum residential
complexes and to develop erect, install, alter, improve, add establish, renovate, recondition, protect, participate, enlarge, repair, demolish, remove,
replace, maintain, manage, buy, sell, lease, let on hire, commercialize, turn to account, fabricate, handle & control all such buildings & structures and to
purchase, sell or deal in all types of movable or immovable properties for development, investment, or for resale and to do all incidental acts and things
necessary for its attainment of above objects.
As per the notice of non-compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements since
incorporation, 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 appellants have stated 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 or
any person on their behalf before striking of the name of the company. Further they have contended that impugned striking off and dissolution notice
as has been notified by the Registrar is not only unfit, improper, arbitrarily unjustified, against the interest of members, creditors of the Company, but
also undeniably against the principles of natura1 justice and also the right to carry to any profession or to carry on any occupation, trade or business as
enshrined in Article 19(1)(g) of the Constitution of India have been denied on the following grounds: -
i. The company was carrying on business and was in operations in the preceding financial years, that is since Incorporation and much till immediately
preceding Financial Year(s) i.e. 2014-15 and 2015-16. Further, the company had been preparing its financial statements of all its financial years on a
going concern basis and had duly conducted its Annual General Meetings and adopted the said financial statements therein in compliance of the
applicable provisions of the Companies Act, 1956/2013
Therefore, the basic premise, i.e. the ground of striking off of the Company under Section 248(1) of the Companies Act, 2013 which is the Company
was not carrying on any business in the immediate two financial years does not stand good and valid.
ii. The Company was operational since Incorporation which can be substantiated from the fact that the Company had been purchasing dwelling units,
making payments to its vendors and suppliers and also has outstanding creditors in all its Financial Statements prepared since Incorporation.
iii. Its Assets remained intact and thus it was not a defunct nor a situation had arisen for winding up of its business.
The appellants have further contended that the Registrar of has not followed the procedure mentioned under section 248(1)(c) of Companies Act,
2013 which provides ""Where the Registrar has reasonable cause to believe thatâ€" (c) a company is not carrying on any business or operation for a
period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant
company under section 455, he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the
company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within
a period of thirty days from the date of the notice.
And also pursuant to section 248(4) of Companies Act, 2013 which provides ""A notice issued under sub-section (1) or sub-section (2) shall be
published in the prescribed manner and also in the Official Gazette for the information of the general public.
And pursuant to Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 which provides ""Manner
of publication of notice-
(1) The notice under sub-section 1 or sub-section 2 of section 248 shall be in Form STK 5 or STK 6, as the case may be, and be-
(i) placed on the official website of the Ministry of Corporate Affairs on a separate link established on such website in this regard;
(ii) published in the Official Gazette;
(iii) published in English language in a leading English newspaper and at least once in vernacular language in a leading vernacular language newspaper,
both having wide circulation in the State in which the registered office of the company is situated.
Provided that in case of any application made under subsection 2 of section 248 of the Act, the company shall also place the application on its website,
if any, till the disposal of the application.
(2) The Registrar of Companies shall, simultaneously intimate the concerned regulatory authorities regulating the company, viz, the Income-tax
authorities, central excise authorities and service-tax authorities having jurisdiction over the company, about the proposed action of removal or striking
off the names of such companies and seek objections, if any, to be furnished within a period of thirty days from the date of issue of the letter of
intimation and if no objections are received within thirty days from the respective authority, it shall be presumed that they have no objections to the
proposed action of striking off or removal of name.
The appellants have stated that with the enactment of RERA (Real Estate Regulation Law) in 2016 and Demonetization of Specified Bank Notes, it
became more difficult for the company to garner revenue in already prevalent slump in the Industry. Still, the company was duly carrying on its
business and also was in operations consequent to which the ground upon which the striking off order was passed was erroneous and also since the
procedure contemplated for striking off was not followed by the Respondent.
Although, no notice under section 248(1) of the Act in the form of STK-1 was served on Company or any of the directors or any person on their
behalf, before striking of the name of the company, the appellants without going into the controversy of the filing of statutory documents by company
for the relevant period and still ROC publishing notice of striking off the name of the company on 30.06.2017, the appellant has preferred to prove with
documents and records that the company was in operation and doing business during the period of striking off the name of the company as a better
remedy.
The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copy of Bank Statement of the company, issued by Kotak Mahindra Bank, as on 10.05.2018, reflecting various transactions done by the
company during the period of striking off the name of the company, having closing balance of Rs. 8,18,734.49/-.
ii. The copies of financial statements of the company for the financial years up to 31.03.2017. The turnover as per audited Profit and loss Account as
on 31.03.2015 is Rs. 77,00,000/- but the company is incurring loss for the 1ast two preceding financial years that is F.Y. 2015-16 and 2016-17 due to
enactment of RERA (Real Estate Regulation Law) in 2016 and Demonetization of Specified Bank Notes it became more difficult for the company to
garner revenue in already prevalent slump in the Industry.
iii. The balance sheet as on 31.03.2017 also reflects inventories in the form of fixed assets of total value amounting to Rs. 26,126,530.00/-
iv. The copy of bills for purchase of by the company, evidencing the carrying on of operations by the company, having last bill of Rs. 3,06,980/- dated
27.06.2017
v. The copy of sale deed dated 02.08.2011 in favour of the company evidencing the existence of Immovable property of total value of Rs. 29,00,000/-
in the company which is Stock in Trade for the Company.
vi. The copies of Income Tax Returns filed for the assessment year 2012-13 to 2015-16. The tax paid by the company for A.Y. 2015-16 is Rs.
76,802/-
It is further submitted by the Appellant that the failure to file financial statements and annual returns with the Registrar of Companies, NCT of
Delhi and Haryana was due to inadvertence on part of the management and due to lack of professional guidance and the omission to file the aforesaid
Financial Statements and Annual returns was not deliberate or wilful and in fact was purely unintentional, without any malafide motives and for
reasons beyond the control of the petitioners.
The Registrar of Companies has stated that it has no objection if the name of the Company is restored 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.
The Income Tax Department has submitted in its report that company has not filed income tax return for Assessment Year 2016-17 and 2017-18
but there is no outstanding demand against the Assesse and has no objection if the company is considered for revival.
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 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.
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.
Accordingly, this appeal is allowed. The Public Notice of Registrar of Companies striking the name of the company is set aside. The restoration of
the company's name to the Register of Registrar 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.