NCSC Healthcare Private Limited vs Registrar of Companies

Justice Anant Bijay Singh;

The present Appeal under Section 421 of the Companies Act, 2013, has been filed by the Appellants being aggrieved and dissatisfied by the order dated 14.10.2021 passed by the National Company Law Tribunal (New Delhi Bench-V) in Appeal 76/252/ND/2021whereby and whereunder appeal filed by the Appellant Company for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana was dismissed by the Tribunal.

The facts giving rise to this Appeal are as follows:

i) The Appellant No. 1, namely NCSC Healthcare Private Limited (CIN: U85100DL2012PTC229593) is a Company incorporated on 03.01.2012 having its registered office at Laxmi Nagar New Delhi-110092 as a private company limited by shares and the business of the appellant company is to carry on the business or to establish, promote, subsidies, encourage, provide, maintain, organize, undertake, manage, build, construct, equip, develop, recondition, operate, conduct and consultants to run in India or abroad Hospitals Nursing homes, Health centres, fitness centres, clinics, medical pharmacy, social welfare and industry other establishment for the health care, body care and to manufacture, sale of all types of drugs, medicines, natural & artificial human body parts and allied activities.

ii) The Appellant Company has not filed its Annual Returns and Annual Financial Statements since its inception due to lack of professional advice. Owing to non-filing of Annual Returns and Annual Financial Statements, the Registrar of Companies had reason to believe that the Appellant Company has either- a) Failed to commence its business within one year of its incorporation, or b) Is not carrying on any business or operation for a period of two immediately preceding financial year and has not made any application within such period for obtaining the status of a dormant Company under Section 455. Consequently, its name was struck off by the Respondent No. 1 from the register of companies under Section 248 of the Companies Act, 2013 vide Notification dated 07.06.2017.

iii) Further case is that the Appellant company has also made investment worth INR 18,57,00,000/- in the shares of the other company(ies) and the same can be traced from the audited financials for the financial year ending 31st March, 2017. The Appellant company has also made allotment of 4,90,000 equity shares of INR 10/- each at a premium of INR 990/- each in the year 2012, but the same was not filed and updated with the Respondent No. 1 due to lack of professional guidance.

iv) Being  aggrieved  the  Appellant  company  filed  Appeal  against  the Notification dated 07.06.2017 before the Tribunal. The Respondent No. 1 in its reply dated 16.04.2021 to the Appeal stated that it has issued notice in the form STK-1 in the month of March, 2017 intimating the Company and the Director of the Company about non-filing of the financial statements and Annual Returns and its basis to form opinion that the company is not carrying on any operation in the last two financial years. Further, public notice in the form of STK-5 dated 24.08.2017 was also issued and published in Hindustan Times newspaper on 24.04.2017 by the Respondent No. 1 and then after, the name of the company was struck off as per the provisions of Section 248(1)(c) of the Companies Act, 2013 vide notice in the form of STK-5 dated 07.06.2017. After hearing the parties, the Tribunal dismissed the aforesaid Appeal vide order dated 14.10.2021 which led to filing of this Appeal.

CS Santosh Pandey appears on behalf of the Appellants, during course of argument and in his memo of Appeal submitted that the Tribunal while passing the impugned order has erred in law and fact by not considering that they have not received any Notice-I under Section 248(1) of the Act, nor public notice in Form No. STK-5 before the aforesaid action was taken by the Registrar of Companies. Also, the Appellant company has been in continuous business operation and is regular in filing its Income Tax Returns along with the copy of acknowledgement till the date of assessment year 2019-2020 and is regularly conducting its meetings and has been regular in preparing its annual return and balance sheets and also has held and convened its Annual General Meeting regularly and has certain assets. Further, the Tribunal did not consider the facts correctly and have not paid heed to the facts that in the financial year 2014-15, the Company has generated revenue from operation amounting to INR 3,04,000/- and also holds an investment of INR 18,57,00,000/- in other entities shares.

On the other hand, the Respondent No. 1 / Registrar of Companies in his reply stated that as per available records on MCA 21 portal, details of signatories associated with the Appellant Company were found namely i) Amarjit Nayak and ii) Sumit Shriwastav. The Appellant company has not filed Annual Return and Balance sheet since its date of incorporation. Moreover, no subsequent documents had been filed by the company with this office to obtain the status of a “Dormant Company” under Section 455 of the Companies Act, 1956. Hence, the ROC had reasonable cause to believe that the company was not in operation and therefore, the name of company was considered for striking off from the Register of Companies. Further, it is stated that neither the Appellant company was carrying out any operation for a period of 2 immediately preceding financial years, nor the company was able to produce any supporting information for just and equitable ground for revival before the Tribunal, therefore, in view of the above, the present Appeal deserves to be dismissed.

On the other hand, the Respondent No. 2/ Income Tax Department appeared and during the course of argument submitted that as per record, no demand is pending against the Appellant’s Company and no such income tax proceedings are pending as on date in Ward, therefore, the Income Tax Department has no objection with regard to restoration of “NCSC Healthcare Private Limited” which has been struck off by the Registrar of Companies.

After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Appellants have placed the following document/evidence before the NCLT:

i. Copy of Financial Statements, Auditor Reports, Notice of AGM and Annual Return from Financial Year ended 31.03.2012 to Financial Year ended 31.03.2019.

ii. Copy of the list of employees in whose account the salary is credited by the Appellant No. 1 Company and copy of share certificates showing the investments made by the Appellant No. 1 Company.

iii. Copy of Statement of Profit & Loss reflecting Revenue from Operations is NIL for the Financial Years ending 31st  March, 2019. Copy of the Balance Sheet as on 31st March, 2019 reflecting current assets including current investments, inventories, Cash and Cash Equivalents and other current assets and liabilities including other current liabilities.

In view of the above, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, we are of the view that the order passed by the National Company Law Tribunal (New Delhi Bench-V) as well as Registrar of Companies, NCT Delhi & Haryana is not sustainable in law.

In  view  of  the  aforenoted,  we  set  aside  the  impugned  order  dated 14.10.2021 passed by the National Company Law Tribunal (New Delhi Bench-V) in Appeal 76/252/ND/2021. The name of the Appellant Company be restored to the Register of Companies subject to the following compliances.

i) Appellants shall pay costs of Rs. 1,00,000/- (Rupees one Lakh) to the Registrar of Companies, NCT Delhi & Haryana within 08 (Eight) weeks from passing of this Judgment.

ii) After restoration of the Company's name in the Register maintained by the RoC, the Company shall file all their Annual Returns and Balances Sheets. The Company shall also pay requisite charges/fee as well as late fee/charges as applicable, within 08 (Eight) weeks thereafter.

iii) Inspite of present orders, RoC will be free to take any other steps punitive or otherwise under the Companies Act, 2013 for non-filing/late filing of statutory returns/documents against the Company and Directors.

The instant Appeal is allowed to the above extent. I.As, if any, stand disposed of.

Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal (New Delhi Bench-V), forthwith.