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Judgment
Justice Anant Bijay Singh;
The present Appeal under Section 421 of the Companies Act, 2013, has been filed by the Appellant being aggrieved and dissatisfied by the order dated 15.09.2020 passed by the National Company Law Tribunal (Court-V, New Delhi) in Appeal 771/252/ND/2019 whereby 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, after hearing the parties the Tribunal passed the following orders:
“5.On perusal of documents, it is observed that applicant has failed to prove that when the name of the Company was struck off, it was in operation or that it remained in operations even after its name was struck off in the register of Companies. Therefore, in view of the aforementioned conclusion, prayer is rejected and appeal is dismissed.”
The facts giving rise to this Appeal are as follows:
The Appellant Company i.e. R.P. Casting Private Limited was incorporate under the Companies Act, 1956 on 14.02.1991 limited by shares with the Registration of Companies, NCT of Delhi and Haryana having its registered office at 82/5, Circular Road, Shahdara, Delhi-110032. The Authorised Share Capital of the Appellant Company is Rs. 45,00,000/- divided into 45,000 (Rs. 100/-each) and Issued, Subscribed and Paid-up Share Capital is Rs. 43,70,000/-. The main object of the appellant company was to manufacture steel alloy castings from iron scrap, therefore, applied for the allotment of industrial land before the Rajasthan Industrial Development and Investment Corporation) (“RIICO”) and Plot No. 174 & 175, Phase-II, RIICO Indl. Area, Behror, Alwar, Rajasthan was allotted by to the company for the manufacturing of Steel Casting products (Annexure- -5 at page 81 to 115 of the Appeal Paper Book). The Company had set up a Unit of machinery which was financed by Punjab National Bank and had commenced its commercial production in the month of November, 1994.
ii) Further case is that the Appellant company continued its manufacturing and trading activities till the end of September 1997, later on the company became sick and later on the company became sick and could not make payment of monthly electric energy bills of Rajasthan State Electricity Board and on 30.09.1997, the Electricity Board had disconnected the power supply of unit, thereby the manufacturing activities of the company had been stopped permanently. Consequently, the staff of the company had started leaving the unit site and by the end of 1997 every person had shifted and no one was there in the premises of the company where unit was set up. After the closure of the unit the bank had recalled its loan which was repaid to them by disposing of the plant and machinery installed at the unit and the other sources of the management.
iii) The Appellant Company was manufacturing the steel casting which is excisable product, as a good practice the management of the company had intimated all the concerned departments about the closure of the Unit suo-moto. The several creditors of the appellant company had filed recovery suit against the company which were settled by the management of the company subsequently. The company had received one Show Cause Notice dated 10.09.1998 from the Commissioner, Central Excise, Commissioner, Jaipur-I, Statue Circle, Jaipur wherein the duty of Rs. 41,12,000/- was claimed which was replied by the management of the company vide letter dated 17.09.1998 (Annexure- 6 at page 116 to 121 of the Appeal Paper Book). On 01.04.1999 the Adjudicating Authority i.e. Commissioner, Central Excise, Commissioner, Jaipur-I, Statue Circle, Jaipur had confirmed the demand of Rs. 41,12,568/-along with interest @18% per annum against the Appellant Company vide OIO no. 10/1999 (Annexure- 7 at page 122 to 127 of the Appeal Paper Book). Since no one was staying gat the unit site, the aforesaid confirmation order of demand of Rs. 41,12,000/- dated 01.04.1999 passed by the Adjudicating Authority, could not be served upon appellant. In the year 2007, the management of the company came to know about that order and an appeal against the order was filed on 21.05.2008 before Custom, Excise & Service Tax Appellate Tribunal (CESTAT) which was dismissed as time barred on 03.10.2008 (Annexure- 8 at page 128 to 129 of the Appeal Paper Book).
iv) The second appeal was preferred against the order of the CESTAT before the Hon’ble High Court of Rajasthan and the order passed by the CESTAT was set aside and the matter was remanded back to the Appellate Tribunal on 13.05.2016 (Annexure- 9 at page 130 to 137 of the Appeal Paper Book). During the pendency of the second appeal, the Centra Excise Department had attached the Industrial plot allotted to the company by the RIICO and sold it in public auction on 05.04.2014 at the price of Rs. 3,01,00,000/-. The first review petition was filed by the appellant company before the CESTAT, which was granted and forwarded to the Commissioner, Central Excise, Alwar, Jaipur on 30.09.2016. Thereafter, the appellant company had filed its reply on 04.11.2016 to the Show Cause Notice No. V (72)235/DEM/98 dated 10.09.1998 before the Commissioner, Central Excise, Alwar and after perusing the reply, the Order in Original No. ALW-EXCUS-000-CDOM-032-17-18 was passed on 23.01.2018 wherein he had confirmed the duty of Rs. 39,12,568/- and Penalty of Rs. 40,00,000/- (Annexure-11 of the Appeal Paper Book). Thereafter, the appellant company had preferred an appeal against the aforesaid order before the CESTAT, Principal Bench, Court No. 1, New Delhi who set aside the impugned order and allowed the appeal and also treated the auction sale worth Rs. 3.01 Crore as Pre-Deposit under Section 35F of the Excise Act vide its Final Order No. A/53321/2018-EX[DB] dated 27.11.2018 (Annexure-12 of the Appeal Paper Book).
Further case is that the Appellant Company was struck off by the Respondent No. 1 by issuing two notices dated 24th August, 2007 and 28th December, 2007. The Appellant company filed appeal bearing Appeal No. 771/252/ND/2019 before the Tribunal for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana, after hearing the parties the Tribunal dismissed the appeal filed by the Appellant. Hence this Appeal.
The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal along with written submissions submitted that the Tribunal failed to appreciate that the Appellant Company had filed refund claim for Rs. 3,01,00,000/- with the office of Sh. Rajthan Jat, Assistant Commissioner, Central Goods & Service Office, Alwar, Rajasthan on 27.02.2019. Thereafter, the Assistant Commissioner ordered that the appellant company is entitled for the consequential refund claim of Rs. 1,79,20,377/- and interest of Rs. 50,50,910/. The total refund of Rs. 2,29,81,287/- is confirmed by the Assistant Commissioner which would be paid in cash through RTGS, therefore, it is just and equitable to restore the name of the company in the register of companies as the Hon’ble High Court of Delhi has held in the case of Siddhant Garg & Anr. Vs. Registrar of Companies & Ors. (Co. Pet. 200/2011).
It is further submitted that that the company had filed Income Tax Returns for the Assessment Year 1995-96, 1996-97, 1997-98 and 1998-99 and also submitted its financial statements with the Respondent No. 1 till the financial year ended 31st March 1998 which was duly laid and adopted in the respective Annual General Meeting of the appellant company under the relevant provisions of the Companies Act, 1995. The company was having the bank account with Bank of India and the account statement for the period from 19.07.2006 to 30.09.2014 and 06.01.2014 to 23.05.2020 which are evident at Annexures 16 & 17 of the Appeal Paper Book. Based on the submissions, the impugned order is fit to be set aside and the Appeal be allowed.
On the other hand, the Respondent No. 1 / Registrar of Companies in his reply stated that the Appellant Company has not filed its Financial Statements and Annual Returns since its Incorporation, due to which the Respondent No. 1/ROC had reasonable cause to believe that the Appellant company was not in operation and in terms of provision of Section 248(1) Notice was sent to the Appellant company and also to its directors by invoking the provisions of Section 20 of the Companies Act, 2013. The Appellant company has been issued STK-1 on 21st March, 2017. Further, in terms of Section 248(4) of the Companies Act, 2013 public notices in form STK-5 were issued to 27291 Companies including the Appellant company by making publication in official Gazette on 13.06.2017 and these notices have also been places on the website of Ministry of Corporate Affairs.
It is further stated that in pursuant to sub-section (5) of Section 248 of the Companies Act, 2013 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, after expiry of time as mentioned in notice published/sent and non-receipt of any objection from the company/directors, Dissolution in form STK-7 having effect from 21.08.2017 was published on the website of Ministry of Corporate Affairs on 01.09.2017. Further, it is stated that since the Company was neither able to prove that it was carrying any business before it was strike off nor have produced 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 with exemplary cost.
On the other hand, the Respondent No. 2/ Income Tax Department in his reply stated that the Appellant Company was incorporated on 14.02.1991 with Authorized Capital of Rs. 20,00,000/- and Paid Up capital of Rs. 5,000/-. The details of the Income Tax Returns filed by the Appellant Company are as follows:
| Assessment Year | Date of filing | Income/(Loss) Returned | Taxes Paid |
| 2012-13 | No return file | - | Nil |
| 2013-14 | No return file | - | Nil |
| 2014-15 | No return file | - | Nil |
| 2015-16 | No return file | - | Nil |
| 2016-17 | No return file | - | Nil |
| 2017-18 | No return file | - | Nil |
| 2018-19 | No return file | - | Nil |
| 2019-20 | No return file | - | Nil |
The Appellant company has not filed its return of income since inception, thereby violating the mandatory provisions under Section 139 of the Income Tax, 1961.
After hearing the parties and having gone through the pleadings made on behalf of the parties, we are of the considered view that there is no illegality committed by the Ld. Adjudicating Authority while passing the impugned order and also there is no cogent reason to interfere. Therefore, we do not need to interfere in the impugned order. The impugned order dated 15.09.2020 passed by the National Company Law Tribunal (Court-V, New Delhi) in Appeal 771/252/ND/2019 is hereby affirmed. There is no merit in the Appeal. The Appeal is hereby dismissed.
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 (Court-V, New Delhi), forthwith.