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Judgment
Dr. V.K. Subburaj, Member (T)
This is an appeal which has been preferred u/s 252 of the Companies Act, 2013 by the Appellant Company in relation to an order of striking off the name of the Appellant Company passed by the Respondent No. 1 with effect from 08.08.2018 under the provisions of Section 248 of the Companies Act, 2013. Learned counsel for the Appellant represents that the Appellant Company was incorporated under the provisions of Companies Act, 1956 and has its registered office at E-54, Gurunanak Pura, Jail Road, New Delhi. The Company is a Singapore based multi-national Company having business operations in many countries and the Company is engaged in the business of developing converged technology solutions for the hospitality Industry. Learned counsel for the Appellant represents that the Appellant Company has been active since incorporation and has also been maintaining all the requisite documentation, as per the provisions of the Companies Act, 1956/2013. However, compliance in relation to the provisions of Companies Act, 2013 with the Respondent RoC by filing annual returns and financial statements has been omitted to be complied with but the said omission is not mala fide.
Upon notice to the Registrar of Companies ("RoC"), the RoC has filed its affidavit and reply. The Learned counsel for the RoC appeared and conveyed RoC's no objections to restoration of the Appellant Company subject to terms.
Notice was duly served to the Income Tax Department and No reply was filed despite several opportunities.
We have considered the plea of the Appellant and the representations of RoC. It is evident from the plea of the Appellant that it admits the default and questions the due process undertaken by the RoC in striking off the name of the Appellant Company as envisaged under Section 248 of the Companies Act, 2013. However, the Appellant is seeking restoration of its name in the register as maintained by RoC relying on the ground that the Appellant as of date is in active business and has been preparing all its financial statements and 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 before us the following documents:
i. Acknowledgement for filing Income Tax Returns for the Assessment years 2008-09, 2009-10, 2010-11, 2011-12, 2012-13, 2014-15 and 2018-19.
ii. True Copies of Financial Statements and Balance Sheet for the Financial Years 2016-17 and 2017-18 with details of Reserves and Surplus of deficit amount of Rs. -1,24,736/- as on 31.03.2018 and short-term provisions of Rs. 25,058/- further the appellant Company has cash and Bank Balances Rs. 4,00,322/- in the financial year 2017-18.
We have heard learned counsels for the parties and have perused the paper book with their able assistance. The provision concerning restoration of the name of the company has been incorporated in section 252 of the Companies Act, 2013 and the same read as under:-
"Appeal to Tribunal
252 (1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies:
2...............................
(3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies."
A perusal of the aforesaid provisions shows that any person aggrieved by the order of the Registrar, notifying a company as dissolved under section 248 is competent to file an appeal to the National Company Law Tribunal. If a company, or any member or creditor feels aggrieved, they would also be competent to file an appeal against the order of the ROC before the expiry of twenty years from the date of publication of order in the official gazette. Sub section 3 of section 252 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 ROC namely:
A) that the company at the time of its name was struck off was carrying on business.
B) Or it was in operation or
C) it is otherwise just that the name of the company be restored on the register.
When we apply the aforesaid statutory parameters to the facts of the present case the petitioner has not been able to show that when it was struck off it was in fact carrying on business or it was in operation. It is not disputed that the Appellants has not filed its annual returns, financial statements or any other statutory returns since 31.03.2016 with the ROC thus we find that section 252(3) would not come to the rescue of the petitioner.
ROC vide its reply has submitted that the Appellant Company may kindly be directed to prove that it was carrying on business or was in operation and that it is just that the name of the company be restored on the register.
The perusal of documents submitted by the Appellant Company shows that the audited balance sheet of the year ending 31.03.2018 shows that the Company has no revenue from operations, long term borrowings and fixed assets. Further, Bank Statements of Appellant Company shows that the company does not have operation and a significant credit balance in their Reserves and Surplus. Further, the Income Tax Return of 2018-19 shows that the company has paid only Rs. 1000/- and has a loss of Rs. 5,915/-. Therefore, adverse view can be taken against the Appellant. In the factual background it would fortify the view that the company has no business transaction and is not in operation for preceding 2 years prior to the struck off date.
As a sequel to the above discussion this petition fails and the same is dismissed.