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Judgment
This appeal is filed by the company, M/s Ritica Metal Craft Private Limited (for brevity the ‘Company’), through and alongwith its two Directors, Mr. Rajesh Kumar Singhal and Mr. Dharmender Singh, 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. ROC- DEL/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 07.01.2011 having CIN U28991DL2011PTC212316.
The company is having registered office at 16/473, E, Padam Singh Road, Bapa Nagar, Karol Bagh, New Delhi.
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 set up and carry on India or elsewhere the business of manufacturing processing, preparing, raising, modifying fabricating installing converting refining milling acquiring buying selling trading import export hiring assembling distributing and dealing in either of its own or as commission agents or as stockiest or as job workers in all kinds and types of engineering goods machined components, components equipment’s steel alloy steel stainless, tools steel, ,metals metal goods ingots flats angels rounds steel wires steel stripes shuttering tubes, metal products nails nuts bolts stripes pipe fittings tool garden tools hand tools cutting tools implements equiipments plant and machinery, machinery parts and components electrical and mechanical appliances electric panels hardware goods builder hardware auto parts and components molds dies jigs and fixtures mechanical devices engines motors pumps gauges appliances apparatus industrial goods fabricated steel structures scaffolding agriculture machinery valves metal products allied products and their raw material parts and components.
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 reporting of such activities through Annual Returns and Financial Statement had not been filed with Registrar of Companies due to inadvertence on part of the management.
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 issued by Kotak Mahindra Bank, from 12.08.2011 to 04.05.2016, reflecting various transactions done by the company and having closing balance of Rs. 19,703/- as on 04.05.2016.
ii. The copies of financial statements of the company for the financial years from 31.03.2011 to 31.03.2017. The Balance Sheet as on 31.03.2017 reflects fixed assets of Rs. 38,19,350/- and Loss of Rs. 7,012/-
iii. The copies of Income Tax Returns filed for the assessment years 2016-17 and 2017-18 as NIL returns.
iv. The copy of letter, dated 21.04.2008 issued by Haryana state industrial and infrastructure development corporation limited in favour of the appellant company in respect of allotment of Plot No. 1528, admeasuring about 450 sq. meters for consideration of Rs. 13,50,000/-
v. The copy of grant of occupation certificate, dated 10.06.2014 issued by Haryana state industrial and infrastructure development corporation limited in favour of the appellant company in respect of Plot No. 1528, HSIIDC at Rai.
vi. The copy of letter of acceptance, dated 28.09.2017 by HSIIDC for change in constitution from M/s Rajesh Kumar Singhal to M/s Ritica Metal Craft Private Limited/change in partners/change in shareholders in respect of industrial Plot No. 1528, Sector 38, Phase 1, Industrial Estate.
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 submitted in its report that there is no outstanding demand against the Assessee and has no objection if the company is considered for revival.
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 accordingly.
Let the copy of the order be served to the parties.