Munusamy, Shareholder Of Sudha Security Protection Force Private Limited vs Registrar Of Companies

R. Varadharajan, J

Aggrieved by the Order of the RoC/Respondent passed in Form No. STK-7 dated 25.10.2019 whereby the name of M/s. Sudha Security Protection Force Private Limited (hereinafter to be referred as 'the Company') which was struck off, the Shareholder of the said Company viz., Mr. Munusamy has approached this Tribunal under Section 252(3) of the Companies Act, 2013 r/w Rule 87A of the National Company Law Tribunal (Amendment) Rules, 2017 r/w other related provisions of the Companies Act, 2013 and Companies (Removal of Names of Companies From the Register of Companies) Rules, 2016 for the reliefs prayed for in the Application.

It is evident from the Application that the Company was incorporated on 17.04.2012 with the Registrar of Companies, Chennai under the provisions of the Companies Act, 1956 and upon incorporation the Respondent has assigned the Corporate Identity Number (CIN) i.e., U74900TN2012PTC085457.

It is further seen from the averments made in the Application that the Registered Office of the Company is situated at Plot No. 3/53, Mettu Street, IT Highway Rajiv Gandhi Road, Kazhipattur, Chennai - 603 103, Tamil Nadu.

It is also seen that the Company was initially incorporated with the Authorized Share Capital of 10,000 equity shares of Rs. 10/- each amounting to Rs. 1,00,000/- and the Issued, Subscribed and Paid-up Share Capital of the Company is also for a like amount and that there has been no change in relation to the Share Capital of the Company.

In relation to the main objects of the Company the following are stated in the Application which are extracted as below:-

"1. To engage in the business of providing security protection services and other related business such as to carry on the business of consultancy of providing manpower placement and recruiting, selecting, interviewing, training and employing all types of security guards, security staff, junior level staff, workers, labourers skilled, unskilled required by various industries and organizations including providing security services, labour contractors, industrial, commercial, housing and other security services and workers for office management and to conduct employment bureau and to provide consultancy and other services in connection with requirements of persons and manpower supply in India and abroad.

To carry on the business of manpower consultant and advisors to individuals, bodies, corporate, societies, undertakings, institutions, associations, government, local authorities for the recruitment of managerial personnel and others relating to the administration, organization, production, storage and marketing sales and management of industry and business and to carry on the business of industrial and business consultants."

From the above it is evident that the Company has been incorporated inter-alia for the purpose of engaging in the business of providing security protection services and also to carry on the business of consultancy of providing manpower placement and recruitment.

Even though it is averred that the Company has been filing its Income Tax Returns for the Financial Years 2016-2017, 2017-2018 and 2018-2019 and it has also furnished the Audited Balance Sheets for the relevant years, however, in relation to the filing of the Financial Statements and Annual Returns for a continuous period of 4 years commencing from 01.04.2015 up and until 31.03.2019 it has not been filed with the RoC/Respondent and hence the RoC/Respondent has chosen to strike off the name of the Company from the Register of Companies maintained by it after the notice has been issued under Section 248(5) for striking off the name of the Company and the same has been published with the Official Gazette in Form STK-7 dated 25.10.2019.

The main ground taken in the Application seeking for the restoration of the name of the Company is that the Company being active and is a going concern since incorporation and also further due to dereliction on the part of the Chartered Accountant engaged by the Company to inform that previous Annual Returns have not been filed and there has been a default on the part of the Company to comply with the provisions of the Companies Act, 2013.

Since, it is submitted that the Company has been in continuous operation as compared to the two years period which has been prescribed under the provisions of Section 252(3) of the Companies Act, 2013, prior to the date of striking off the name of the Company and further with a view to give a chance to the Company, its members and creditors to revive the Company which has been struck off and in the circumstances it is just and necessary that the Company should be restored as prayed for in this Application.

Pursuant to the notice issued to the RoC/Respondent, the RoC has responded by filing a report before this Tribunal. A perusal of the report shows that the Company had filed its last Annual Return and Balance Sheet for the Financial Year ended 31.03.2016 and subsequent to the same there has been no filing and in the circumstances, the RoC had initiated action under Section 248 of the Companies Act, 2013 as contemplated and thereby had the name of the Company struck off.

The above Notification was published in Gazette of India dated 9th - 15th November, 2019 bearing Gazette of India No. 1805. It is further contended by the RoC/Respondent that the Company had also failed to avail the status of the Dormant Company under Section 455 of the Companies Act, 2013. In view of the non compliance, it is contended that the action of the RoC is justified and that the action was not unwarranted.

In relation to the service of notice to the Income Tax Authorities on the part of the Applicant/Petitioner, none appears for the Income Tax Authorities through Video Conferencing Mode nor any objection has been filed.

A perusal of the Application along with documents establish that the Company was in operation prior to strike off the name of the Company. Income Tax Returns have been annexed as Annexure-5 to the Application.

A Perusal of the Income Tax Return reveals that for the year ended 31.03.2016 the Company has a Gross Total Income of Rs. 36,97,314/- with tax liable to be paid of Rs. 11,42,469/-. The acknowledgement of the Income Tax Return also discloses that TDS which has been deducted is to the extent of Rs. 11,87,029/-. Similarly for the year ended 31.03.2017 the total income disclosed is a sum of Rs. 28,18,040/- with tax payable of Rs. 8,70,774/- and TDS deduction is of Rs. 8,72,286/-.

Further in relation to the year ended 31.03.2018 the total income is disclosed as Rs. 32,76,420/- with commensurate tax payable of Rs. 8,43,678/- with deduction of TDS to the extent of Rs. 8,79,827/-. It is pertinent to note that all the above returns have been filed prior to the date of striking off the name of the Company.

In addition, the Applicant has also filed the Bank Statement as held by it with Kotak Mahindra Bank disclosing the banking operations between the period of 26.09.2019 and 09.10.2019 i.e., just prior to the date of strike off the name of the Company. A perusal of the said Bank Statement discloses that consistent banking transactions have been done by the Company between the said dates.

Taking into consideration the financial statement as filed by the Applicant/Petitioner along with Income Tax Returns as pointed out above as well as the bank statement all of which establish that the Company was in operation immediately for a two year period prior to the strike off the name of the Company from the Register of Companies by the RoC.

Taking into consideration the provisions of Section 252(3) of the Companies Act, 2013 under which this Application has been filed, we deem it fit to restore the name of the Company on the file of the RoC/Respondent concerned as maintained, on the grounds that the Company has been able to demonstrate that it has been carrying on business/operations for a period of two years prior to strike off, however, subject to the following directions namely:

The Company shall:

(i) Within a period of 15 days from the restoration of the Company's name in the register being maintained by the RoC/Respondent, the Applicant will ensure that the Company files inter-alia, its annual returns and balance sheets as well as make 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.

(ii) That the Company out of its funds, set apart a sum of Rs. 2,00,000/- (Rupees Two Lakh Only) and deposit the same with the RoC/Respondent which amount shall be for the purposes of payment of all fees/charges as contemplated in clause (i) 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 RoC/Respondent 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 RoC/Respondent to the Applicant.

(iii) Till all compliances are made by the Company, the Company shall not alienate or dispose of any of its valuable assets.

(iv) It is further observed that by virtue of this order of restoration of the name of the 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 RoC/Respondent automatically to be restored to directorship except in accordance with law.

(v) An affidavit of compliance of the aforesaid directions shall be filed by the Applicant within a period of 2 months from the date of this order.

(vi) The Shareholders of the Company shall jointly submit an Undertaking to the RoC/Respondent stating therein that the accounts of the Company were not used as means to transact tainted money during the period of demonetization.

(vii) Further this order allowing the Application shall also not circumscribe the power of the RoC/Respondent to proceed against the 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 Application is disposed of accordingly.