Neo Outsourcing Pvt. Ltd. vs Registrar Of Companies And Anr.

Present appeal is filed by the company, M/s Neo Outsourcing Private Limited (for brevity the `Company'), through its Director, Mr. Harsimran

Sarna, 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

Registrar of Companies, the respondent herein, 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. ROCDEL/248(5)/ STK-7/2879.

2 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 23.04.2010 having CIN U74999DL2010PTC201931.

The company is having registered office at 204, DA-9, Enkay House, Main Vikas Marg, Shakarpur, East Delhi- 110092.

Authorized share capital of the Company is Rs.1,00,000/ - divided into 10,000 equity shares of Rs.10/- each and issued, subscribed and paid up

share capital of the Company is Rs. 1,00,000/- divided into 10,000 equity shares of Rs.10/- each.

The main objects of the company are:

i. To provide outsource to prospective clients in India and abroad and every kind of business process outsourced activity.

And other main 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

Financial Year 2011, 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 Appellant has 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 natural 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) along with Article 14 and Article 21 of the Constitution of India have been denied.

The appellant has further contended that the Registrar of Companies did not comply with the provisions of Section 248(6) of the Companies Act,

2013 before passing the Order under Section 248(5) of the Companies Act, 2013. The provisions of section 248(6) of the Companies Act, 2013 is

reproduced below:

The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realization of all

amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if

necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company:

Provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available for the payment or

discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the Register of Companies.

However, without going into the controversy of the latches in following the due procedure of law by Registrar of Companies before the final act of

striking off the name of the company from the register of companies maintained by Registrar of Companies, for non-filing of statutory documents by

company for the relevant period, through publication of notice 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 copies of financial statements of the company for the financial years from 2011-12 to 2016-17. The tangible assets reflected in Balance Sheet

as on 31.03.2017 are of Rs. 5,84,631/-

ii. The company has incurred employee benefit expense of Rs. 3,24,02,396/- in the financial year 2016-17.

iii. The copies of Income Tax Return the assessment years 2013-14 to 2017-18. The tax paid for assessment year 2017-18 is Rs. 1,54,920 /-

iv. The copies of invoives issued by various entities in favour of the company of substantial amount in the financial year 2017.

v. The copy of Employee Provident Fund challan paid by the company of Rs. 2,53,469/- dated 30.09.2017

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 as such there was no wilful or

mala-fide motive behind non-filing of the Financial Statements and Annual returns.

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 not filed its reply in spite of several opportunities given by the Tribunal. The appellant has duly filed Income Tax

Returns for assessment year 2013-14 to 2017-18.

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 struckoff 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 Appellant has submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct

company. Thus, taking into consideration the provisions of Section 252(3) 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 in terms of above order.

Let the copy of the order be served to the parties.