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Judgment
This appeal is filed by the company, M/s Net Biz Infotech Private Limited (for brevity the `Company'), through and along with its Directors, Mr.
Sanjeev Kumar and Mr. Gaurav Tripathi, 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 the respondent 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 by Registrar of Companies,
the respondent herein.
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 22.08.2012 having CIN U72900DL2012PTC240498.
The company is having registered office at h No. 67/3H, Chandan Vihar West Sant Nagar, New Delhi-110084.
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 carry on the business of software, application development, consultancy in the field of technology, computer programming, internet related
services, eb applications, e- commerce, e- services, ERP Solutions, computer software packages including ERP software, website designing
development, website hosting, domain name registration, maintenance of website and software, computer hardware and software, IT enabled services,
remote office management, research and development of software, internet marketing, web promotion, SE0 in India and outside India.
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 during
the period of strike off, 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 appellants have stated that notice under section 248(1) of the Act in the form of STK-1 was received by the Company before striking of the
name of the company, however, when the company was in process of filing the required documents the name of the company was struck off from the
Register of Companies.
The Appellants have brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copy of Bank Statement of company of State Bank of India, from 01.10.2016 to 03.10.2017, reflecting various transactions done by the
company, during the period of striking off, having the closing balance of Rs. 3,33,876/-
ii. The copies of financial statements of the company from 2013 to 2017. The Profit and Loss Account as on 31.03.2017 reflects revenue from
operation of Rs.5,87,250/-
iii. The copies of Income Tax Return the assessment years 2016-17 and 2017-18 as NIL Return.
iv. The copy of rent agreement dated 18.12.2018 in favour of the company with respect to property situated at First Floor, 67, 3H, Chandan Vihar,
Sant Nagar, Delhi-110084.
v. The copies of invoices issued by the company to various entities between 22.03.2013 to 29.08.2017 for various services rendered by the company.
It is further submitted by the Appellants 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 appellants have duly filed Income
Tax Returns for assessment year 2014-15 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 struck off 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 Appellants have 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.