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Judgment
The appellant company, M/ s Rational Impex Pvt. Ltd., (for brevity ""the company"") has filed this appeal under section 252 of the Companies Act,
2013 (hereinafter called as the Act') through its Director Mr. Gaurav Gupta against the order of the Registrar of Companies (ROC), NCT of Delhi
and Haryana dated 07.06.2017. The order mentioning the name of the Company at Serial No. 15874 with CIN No. U51909DL200PTC159413 was
duly published in Official Gazette on 30.06.2017. The name of the company has been struck off from the Register of Companies maintained by the
respondent ROC, under section 248(5) of the Act read with Rule 7 and Rule 9 of Companies (Removal of Name of the Companies from the Register
of the Companies) Rules, 2016.
It is stated that the company was incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana on 20th
February, 2007, under the Companies Act, 1956 having CIN U51909DL200PTC159413.
The registered office of the company, Rational Impex Pvt. Ltd., is at 28/145-146, West Patel Nagar, Delhi-110008.
The authorized share capital of the company is Rs. 1,00,000/- divided into 10,000 equity shares of Rs.10/- each and the issued, subscribed and paid
up 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:
a) To carry on the business to arrange for transfer or technology, trade, joint ventures and corroborations and to act as general trading, export house in
accordance with the laws providing in the country in respect of business.
And other main objects.
It is the claimed that neither the company nor any of its directors or any other person of behalf of the company, have received any show cause
notice from ROC, being notice to be given U/s 248(1) vide De1/248(1)/STK-1 and thus not giving any opportunity of being heard before striking off
the name of the company.
It is further submitted that the Company assigned the work of filing of statutory returns and documents to one of the executives who was entrusted
to perform the task of filing the Annual Returns and Financial Statements with the office of the ROC and directors fully relied on him for the same.
But the said executive neglected the filing of the said documents with ROC.
It is further submitted by the Appellant that it was only in June, 2017 when the directors of the company come to know that the company has been
struck off by the ROC by its notification No. ROC-DEL/248(5)/STK-7/2979 for non-filing of the returns.
As stated by the Appellant, the ROC has struck off the name of the company due to defaults in statutory compliances, namely, failure to file
Financial statements 8r, Annual Returns. The Appellant had filed the Financial Statements & Annual Return in Form A0C-4 8r, FormMGT-7
respectively up to the financial year ended 31st March, 2016 but has not clarified as to when the said documents were filed.
The Appellant has produced the following documents and records in support of their case showing that the Company was in operation during the
striking off period and is functioning till date:
a) The company has filed the statutory income tax returns till financial year 2017-18. The company has filed the nil returns for assessment year 2017-
18.
b) The Company has been carrying out day to day business, preparing annual accounts and holding its board meetings, general meetings of
shareholders as and when required and maintained proper records, registers as per law.
c) Financial Statements have been duly audited by the Statutory Auditors of the Company. All the necessary documents including the Balance Sheet,
Audit Report and Profit and Loss Accounts for year 2015-16 and 2016-17, though showing losses of Rs. 9,144/- for financial year 2015-16.
d) The Company is maintaining and operating a current account with Bank of Baroda. The xerox copy of stamped statement of bank account of the
company reflects balance amount of Rs. 1,70,036/- as on 13.10.2017
The non-compliance in terms of filing of statutory documents with ROC was unintentional and not with any ulterior motives and is not of such a
nature as to prejudice the interest of the creditors/ shareholders and/or public at large and it is just and equitable that the revival and restoration of the
name of the company be allowed by this Tribunal.
The ROC submitted that the company has filed the Annual Return and Balance Sheet for the Financial Year ended 31.03.2011 on 29.11.2011.
The subsequent filing for the financial years ended from 31.03.2012 to 31.03.2015 have been made between 03.06.2017 to 02.07.2017 that is post
publication of the notice of striking off, in form STK-1.
The ROC further submitted that they did not receive any communication in response to the notice issued in pursuance of sub-section (1) and sub-
section (4) of section 248 of the Act and Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016
from the Company/ Directors/ Shareholders regarding remedial measure taken, if any.
The ROC further submitted that the as per the records available with the ROC the company was not carrying on any business but has also opined
that subject to the compliance of section 252 of the Act and proving that the company being in business, the name of the company may be allowed to
be restored.
As on date the Company has filed the Annual Returns and financial statements till 31.03.2015 though post publication of the strike off notice in
form of STK-1 without any intimation to ROC about the said filing done. As the result, filing of the said financial statements post notice of STK-1 did
not come to the notice of the ROC and hence, the name of the company appeared in the strike off list published on 27.06.2017, in the Official Gazette
notification.
The IT Department reply was not found on record, but the company has filed the IT returns upto date and has paid income tax.
From the records submitted by the appellant as narrated above it is proved that the company was carrying on the business and it was in operation.
Hence, the objections raised by ROC is satisfied. The Income Tax Return placed on record proves that the returns have been regularly filed by the
company till year 2017-18.
The appellant has also submitted that in the event of revival and restoration of the name of the company in the Register maintained by the ROC
respondent, the company shall file all outstanding statutory documents for the period 2015-16 and 2016-17 with filing fees and the additional fees, as
applicable on the date of actual filing along with a certified copy of order of this Honble Tribunal for restoration of the name of the company.
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 ROC 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.
According to the ROC the object of Section 252(3) of the Companies Act is to give chance to the company and its member to revive the company
which has been struck off. As per the ROC objections, the restoration be allowed on the rolls of ROC in the interest of justice if the appellants are
able to prove that at the time of striking of its name it was in operation.
In view of the above facts the appeal is allowed. The notification published in the Official Gazette of India dated 27.06.2017 and the order dated
30.06.2017 in so far as the name of the company shown at Serial No. 15874 bearing U51909DL200131C159413 is hereby set aside. The restoration
of the company's name to the Register will however be subject to its filing all the outstanding statutory documents as required under law and
completion of all formalities, including payment of any late fee or any other charges or penalties which are leviable by the respondent for late filing of
statutory returns and also on payment of cost of Rs. 25,000/- to the Prime Minister's Relief Fund. The name of the company shall then, as a
consequence, stands restored in the register maintained by the Registrar of Companies, as if the name of the company had not been ever struck off.
The appeal stands disposed off.