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Judgment
This appeal is filed by the company, M/s Real Capital Residency Private Limited (for brevity the 'Company), through its Shareholder, Mr. Ankur
Chandok, 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.
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 18.11.2009 having CIN U70102DL2009PTC196147.
The company is having registered office at C-96, Panchsheel Enclave, New Delhi-110017.
Authorized share capital of the Company is Rs.5,00,000/ -divided into 50,000 equity shares of Rs. 10/- each and issued, subscribed and paid up
share capital of the Company is Rs.2,00,000/- divided into 20,000 equity shares of Rs.10/ -each.
The main objects of the company are:
i. To carry on the business of infrastructural works, civil mechanical electrical projects and engineering and construction works and developers.
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
incorporation, 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 submitted that the company was in operation and the business activities were carried out by the company during the period of
striking off but the Annual Returns and Financial Statements had not been filed with Registrar of Companies due to inadvertence on part of the
management.
The appellant has stated that no notice under section 248(1) of the Act in the form of STK-1 was received by the Company or any of the directors
or any person on their behalf, before striking of the name of the company.
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 copy of Bank Statement of company of HDFC Bank, from 01.04.2016 to 18.07.2017, reflecting various transactions done by the company
during the period of striking off, having closing balance of Rs. 62,459/-
ii. The copies of financial statements of the company for the financial years from 2013-14 to 2016-17. The turnover of the company is Rs. 52,87,585/-
and the fixed assets reflected in Balance Sheet as on 31.03.2017 are of Rs. 1,00,55,108.25
iii. The company has incurred employee benefit expense of Rs. 40,65,288/- for the financial year ending on 31.03.2017.
iv. The copy of staff salary report for the month for the month of April 2017 and May 2017 reflecting the payment of salary amounting to Rs. 2,15,800
and Rs. 2,14,710/- respectively.
v. The copies of Income Tax Returns along with TDS Form 16 A filed for the assessment years 2014-15 to 2017-18. The tax paid for assessment
year 2017-18 is Rs. 2,91,140/-
vi. The copies of Service Tax Return in form ST-3 filed for the Financial Year 2016-17 as NIL Return.
vii. The copy of receipt of House Property Tax dated 28.03.2017 reflecting the payment of Rs. 1,46,644/-
viii. The copies of invoices raised by the company in favour of ALE India Private Limited between 01.12.2016 to 25.04.2017 totaling in lakhs of
Rupees.
ix. The copy of invoices reflecting payments made by the company for Internet services and Telephone services during the year 2017 totaling in
thousands of Rupees.
x. The copy of invoices of property maintenance charges raised in the favour of Nimbus Harbor Facilities Management Private Limited dated
01.03.2017 for the amount of Rs. 1,42,690
xi. The copy of Capital Business Centre Lease Agreement between appellant and Alcatel Lucent India Limited dated 15.12.2015 wherein the
company has leased out one of its premises for 9 years commencing from the date 01.01.2016.
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 Appellant 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.