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Judgment
Pradeep R. Sethi, Member (T)
The present appeal is filed under Section 252(1) of the Companies Act6, 2013 (hereinafter referred as Act) read with Rule 87A of the National
Company Law Tribunal, (Amendment) Rules, 2016. The appeal is filed by Shri Vishal Kapoor and Shri Ramesh Chander Kapoor promoter/ex-
director/shareholder of Topcon Buildwell Private Limited (hereinafter referred to as company) for restoration of the name of the company in the
register of the companies.
The company was incorporated on 18.02.2009 and its CIN is U45200DL2009PTC187745. The master data is at annexure III and shows the
registered address of the company in Karol Bagh, New Delhi. Therefore, the jurisdiction lies with this Bench of the Tribunal.
The latest memorandum and articles of the associations of the company are at annexure-IV. The main objects of the company are
i. To engage in infrastructure development, Real State Promoters, Developers and Project Management Association including civil, mechanical,
electrical, and all other types erection, commissioning projects, project trading as well as consultants or execution of projects on tumkey basis for
equipment of industrial, domestic and other purposes.
ii. And other main objects.
The master data shows that the authorised and paid up share capital is Rs. 1,00,000/-. However, it is stated in Para III of Form No. NCLT09 that
as per the latest available audited balance sheet 31.03.2017, the authorised capital of the company is Rs. 35,00,000 divided into 3,50,000/- equity shares
of Rs. 10/-each, and the issued, subscribed and paid up capital is Rs. 32,50,000/- divided into 3,25,000/- equity shares of Rs. 10/- each.
It is stated that the name of the company was struck off by the Registrar of Companies, NCT of Delhi & Haryana (ROC) vide notice of striking
off and dissolution No. ROC-DEL/248(5)/STK-7/2879 dated 30.06.2017 and the name of the company is at serial no.20362. It is submitted that the
Financial statement for financial year 2016-17 shows revenue from operation to the tune of Rs. 1,48,500/- which clearly reflects that the company was
doing business during the period when the ROC issued notice to strike off the company from the register of the companies and also, when it was
ultimately struck off vide notice dated 30.06.2017(supra). It is also submitted that the company was maintaining its current account with HDFC bank,
Meerut and that it had also made investments to the tune of Rs. 78,43,000/- in various properties reflected in the financial statements for financial year
2016-17. The particulars of the properties are stated to be given in para V(d) and copies of the transfer deed/lease deed/approval letters in favour of
the company are stated to be enclosed as Annexure VII (Colly). It is further stated that the company has filed all its income tax returns within the
prescribed time limit and the returns were filed up to assessment year 2017-18. It is stated that due to lack of proper professional guidance, oversight
and inadvertent reasons, the company could not file the annual accounts and returns with the ROC as required under the Companies Act, 1956 and
Companies Act, 2013 within the prescribed time limit under the Act. It is stated that it is manifestly established that the company has been in operation
and has been running. The Directors of the company have undertaken to file and complete the pending annual filing with the ROC and be cautious and
diligent in future.
Vide order dated 21.01.2019, the ROC and Income Tax Department were directed to file reply within four weeks.
The ROC has filed reply-cum-affidavit by Diary No. 0710102002852019/1 dated 28.03.2019. It is stated that the company has not filed its financial
statements since the financial years ending on 31.03.2014 due to which the ROC had reasonable cause to believe that the company was inactive and
in terms of provision of Section 248(5) of the Act read with Rule 9 of the Companies (Removal of names of Companies from the Register of
Companies) Rules, 2016, the name of the company had been struck off from the register of the companies vide notice STK-7 dated 07.06.2017. It has
been submitted that the company may be directed to prove that it was carrying on business or was in operation and that it is just that the name of the
company be restored to the register and the company may also be directed to file the financial statements upto date in case the prayer is granted.
Despite directions given once again in order dated 01.03.2019 to the Income Tax Department to file reply within three weeks, the report is still to be
filed.
During the course of the hearing, learned counsel for the company pleaded that in view of the facts brought out in the application NCLT 9, the
company is carrying on its business and therefore, the name of the company be restored to the register of the companies. The learned Company
Prosecutor relied on the reply-cum-affidavit submitted by the ROC on 28.03.2019(supra).
We have carefully considered the submissions of the learned counsel for the company and the submissions of the Company Prosecutor and have
also perused the records.
The present appeal is filed under Section 252(1) of the Act. We however find that the pleadings made in the appeal as well as form No. NCLT 09
have reference to satisfaction of the conditions provided for under Section 252(3) of the Act. Therefore, the present appeal is being disposed under
the provisions of Section 252(3) of the Act.
The relevant provisions of Section 252(3) of the Act contemplate satisfaction of three conditions before exercising jurisdiction to restore the
company to its original name on the register of companies. The first tow conditions are fulfilled since the present petition is filed by two shareholders
and is also filed before the expiry of 20 years from the publication in the Official Gazette of the notice under Section 248(5) of the Act. Therefore, the
only remaining issue for consideration is whether the company was at the time of name its being struck off, carrying on business or in operation or
otherwise it is just that the name of the company be restored to the register of the companies.
The financial statements of the company for the financial years ending on 31.03.2014, 31.03.2015 & 31.03.2017 have been filed as Annexure XII
and Annexure V. Total revenue shown therein is Rs. 7,72,120/- Rs. 11,80,200/-, Rs. 47,130/-, Rs. 25,300/- and Rs. 1,48,500/- for the financial years
ending on 31.03.2013, 31.03.2014, 31.03.2015, 31.03.2016 & 31.03.2017 respectively. Therefore, the company is having revenue from FY2012-13
onwards.
The copy of the statement of the current account of the company with HDFC Bank, Meerut for the period 1.04.2014 to 31.03.2015 & 01.04.2016
to 18.05.2018 have been filed at Annexure-VI to show that the company was carrying on its business. Moreover, it has been stated that the company
has made investments to the tune of Rs. 78,43,000/- in four properties as per details in para V(d) of Form No. NCLT9 and this investment is clearly
reflected in the financial statement of the financial year 2016-17 and the objective is to use such investment for the future growth of the business of
the company.
The copies of the income tax returns of the company for the assessment year 2014-15 to assessment year 2017-18 are stated to be filed on
31.03.2015, 31.03.2016, 30.03.2017 and 27.03.2018 respectively. The total income shown therein is Rs. 33,030/-, Rs. 1990/-, Rs. 380/- and Rs. 10430/-
for the assessment years 2014-15 to 2017-18 respectively. Therefore, the returns for assessment years 2014-15 to 2016-17 were filed before the
name of the company was struck off from the office of the register of the companies by notice dated 30.06.2017.
In the reply-cum-affidavit of the ROC, no objections to the restoration of the name of the company have been raised. The Income Tax
Department was given opportunity vide orders dated 21.01.2019 & 01.03.2019(supra) but no reply was received.
In view of the above discussion, we are satisfied that the company was, at the time of its name struck off, carrying on business or in operation. All
the conditions provided for in Section 252(3) of the Act are satisfied in the present case. We therefore direct that the name of the company Topcon
Buildwell Private Limited, be restored to the register of the companies.
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 Companies is ordered subject to:
i. The Income Tax Department being at liberty to proceed against the company for non-filing/delayed filing of returns and for recovery of the demand,
if any
ii. subject to its filing with the ROC 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 ROC for the late filing of statutory returns,
iii. and also subject to payment of cost of Rs. 25,000/- to the Prime Minister’s Relief Fund. The name of the Company shall then, as a
consequence, stand restored to the Register 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.