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Judgment
This is an Appeal which has been preferred by the Appellant Company in relation to an order of striking off the name of the Appellant Company
passed by the Respondent with effect from 07.06.2017 under the provisions of Section 248 of the Companies Act, 2013. Ld Counsel for the Appellant
represents that the Appellant Company was incorporated under the provisions of Companies Act, 1956 and has its registered office at B-50, Ground
Floor, West Vinod Nagar, New Delhi - 110092. The Company is primarily inter-alia into the business in infrastructure projects as Builders, Developers
& Contractors and to provide, develop, own, maintain, operate, instruct, execute, carry out, improve construct, repair, work, administer, manage,
control, transfer on a built, operate and transfer (boot)or built, operate, lease and transfer (bolt) basis or otherwise, make tenders, apply or bid for,
acquire, transfer to operating companies in the infrastructure sector., any infrastructure facilities including but not limited to road, bridge, airport, ports,
waterways, rail system, highway project, industries, water supply project, pipeline sanitation and sewerage systems & Treatment plant, generation,
supply and distribution of electricity, power and projects, telecommunication facilities, housing projects, commercial real estate projects, warehouses
Retail outlets, factories, godowns, Educational Institutions, others works or convenience of public or private utility and carry out the business on
contractual basis, assign, convey, transfer, lease, auction, sell, the right to collect any rent, toll, compensation or other income from infrastructure
project undertaken by the company.
In relation to compliance with the provisions of Companies Act, 2013 with the Respondent RoC by filing annual returns and financial statements it
has been stated that it has been omitted to be complied with and due to some changes in the plans of the management of the company and due to
some financial losses, the progress graph of the appellant company was showing bearish trends and due to which the focus of the ex-
directors/shareholder was shifted only on getting new opportunities or projects so that the progress graph of the appellant company would be stabled
and in relation to the need to file the returns as they had thought that once they will start earning profits they will file all the documents with the
concerned departments and with all the pending dues and that the said omission is not mala fide. However, in view of non-filing of the Annual returns
and Financial Statement, the name of the Appellant Company from the register as maintained by the RoC has been struck off on and from 07.06.2017
and in view of demonstration of continued operation of the Company over the past years and presently also its business is being alive and running, it
will seriously prejudice the interest of the Company and the Appellants and that taking into consideration the compliances made by the Appellant in
relation to other statutory authorities and since no one will be prejudiced if the Appeal is allowed, but on the other hand, the interest of all concerned
including shareholders/creditors, employees of the Company will be seriously affected if the appeal is not allowed and the name of the company in the
register of the RoC is not restored.
Upon notice to the Respondent RoC, RoC has filed its reply to the above said Appeal. In paragraph 3 and 4 of the reply, the following has been
submitted:
That the company had filed its last Annual Return and Balance sheet for the financial year ended 31.03.2013 and 31.03.2013
respectively.
That the subject company was strike off w.e.f. 07.06.2017 in terms of provision of section 248(1) of the Companies Act, 2013 read with
Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies) Rules,2016.
It is evidenced from the report/observations as filed by the Respondent and represented herein by the Ld. Company Prosecutor that Appellant had
not filed its Annual Returns and Balance Sheets since 31.03.2013 due to which the Respondent had reasonable cause to believe that the Appellant
company was inactive. Ld. Company prosecutor also insisted that due process of law prior to striking off was strictly complied with and in view of the
Respondent not having received any communication from the Appellant Company in response to the notice issued under sub-Section I and sub-Section
4 of Section 248 of the Companies Act, 2013 and Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies)
Rules, 2016, the Respondent was forced to follow the procedure for striking off and in the circumstances the decision for restoration is being left to
this Tribunal for its consideration.
In relation to income tax upon notice directed to be issued, Income Tax has not filed its observations, and vide order dated 05.02.2019 the right to
file the observations on the part of the Income Tax Department was closed.
That for the purpose of restoration of its name in the register as maintained by RoC, it is relying on the ground that the Appellant as of date is
carrying on the business for which it was incorporated and it is in operation and is also relying on the Judgements in the matter ""P,S, Buildwell Private
Limited Vs. Registrar Of Companies, Nct Of Delhi & Anr. Appeal No. 12/252/ND/2018 AndP urushottamdass And Another Vs, Registrar Of
Companies, 1986 60 Compcas 154 Bom "" and canvasses that in the circumstances it is just that the name of the Company should be restored on the
register of RoC as maintained by the Respondent. In order to sustain the said plea, the Appellant has placed overwhelming evidences by way of the
following:
I. Copy of Income Tax Returns for the Assessment Year 2016-17 & 2017-18, indicating a loss of Rs. 16680 for the year 2016-17.
II. Copy of Bank Statement of the Appelant Company issued by Bank of India for the period 01.04.2016 to 31,03.2017.
III. Copy of financial Statements for the financial year 2016-17 indicating inventories for Rs. 5,634,600 under the Current Assets head. Copy of
Financial Statement for the year ending 31.03.2015 to 31.03.2017.
IV. Copy of Transfer Deed / Lease deed in the name of the Appellant Company Wishers Infra Cons Private limited.
In the instant case even though the Appellant has demonstrated mitigating circumstances and taking into consideration the provisions of Section 252
of the Companies Act, 2013 which vests this Tribunal with a discretion where such Company is also 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 as maintained by the Registrar of Companies. Taking into consideration the interest of stakeholders including the shareholders who have
sought for the restoration of the name of the Company in the register being maintained by RoC and in view of the circumstances elucidated above and
the respondent will not be prejudiced and in the absence of any adverse consequences being demonstrated by the statutory authorities to whom
notices had been issued, the Appeal is allowed subject to the following directions namely:
The Appellant/Appellant Company shall:
(a) Within a period of 15 days from the restoration of the Appellant Company's name in the register being maintained by the RoC, the appellant will
file inter alia its annual returns and balance sheets as well other compliances statutorily required to be made under the Companies Act, 2013 for the
period from which there has been default with requisite charges/fees as well as additional fee/late charges.
(b) That the Appellant Company out of its funds, set apart a sum of Rs.2, 00,000/- and deposit the same with the Respondent/RoC which amount shall
be for the purposes of payment of all fees/charges as contemplated in clause (a) above as well as to defray the cost and expenses of Register of
Companies incurred in striking off, within a period of one month from the date of this order. In case of any amount payable in excess of the sum
specified towards defraying the cost incurred by the Respondent/ROC and towards other amounts as are required to be paid by the Company
statutorily, the same shall be remitted by the Company. Any excess amount left after appropriating for all the above shall be meticulously returned by
Respondent to the Appellant.
(c) Till all compliances are made by the Appellant Company, the Appellant Company shall not alienate or dispose of any of its valuable assets.
(d) It is further observed that by virtue of this order of restoration of the name of Appellant Company in the register it will not entitle the Directors of
the Company whose names in case have been disqualified by virtue of provisions of Section 164 of the Companies Act, 2013 by the Respondent/RoC
automatically to be restored to directorship except in accordance with law.
(e) An affidavit of compliance of the aforesaid directions shall be filed by the Appellant within a period of 2 months from the date of this order.
(f) Further this order allowing the appeal shall also not circumscribe the power of the respondent to proceed against the Appellant Company and its
Directors as mandated for alleged late filing of any forms, documents, returns and such other compliance under the provisions of Companies Act,
2013.
The Appeal is disposed of accordingly.