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Judgment
This appeal is filed by the company, Rose Dale Private Limited (for brevity the 'Company'), through its director, Mr. Anil Datta under Section
252(3) 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 appellant further submits that after the publication of said notification dated 30.06.2017 striking off the name of the appellant company, it has
filed a Writ Petition before the Honorable Delhi High Court vide Writ Petition no. 9665 of 2017 for quashing/ setting aside the said notice. The
Honorable Delhi High Court passed, an order dated 01.11.2017 in the said writ petition allowing the withdrawal of said petition and dismissing the
petition and giving liberty to appellant to approach this Tribunal for reliefs, with further clarification that all the contentions of the parties are reserved.
The said order dated 01.11.2017 passed by the Honorable Delhi High Court reads as under:
a. Allowed, subject to all just exceptions.
W.P.(C) 9665/2017 & CM No. 39356/2017
b. Learned Counsel for the petitioners seek to withdraw the present petition with liberty to approach the National Company Law Tribunal (NCLT)
under Section 252 of the Companies Act, 2013 (hereafter 'the Act').
c. The petition and the pending application are dismissed as withdrawn with the aforesaid liberty.
d. It is clarified that all contentions of the parties are reserved including the contention of the petitioners that the order under Section 248 of the Act
has been passed in violation of principles of natural justice. In the event, the said appeal is filed within a period of one week from today, the same
would be considered by the NCLT uninfluenced by any question of delay.
3 Hence, in pursuance of liberty given by Honorable Delhi High Court in order dated 1.11.2017, the appellant has filed present appeal for restoration
of the name of the appellant company on ROC portal, as prayed in the present appeal.
The company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana on 14.06.2006 under the
provision of Companies Act, 1956 having CIN U70109DL2006PTC149735.
The company is having registered office at No. 95 F.I.E., Patparganj Industrial Area, New Delhi-110092
The Authorized capital of the Company is Rs. 1,00,000 /- and paid up capital of Rs. 1,00,000/-.
7 The main objects of the company are:
i. To carry on the business consultants, engineers, designers, fabricators, convertors, molders, smalters of mechanical, electrical, electronic, and other
type of components &tools, control panels, assemblies, sub- assemblies and machines parts and all kinds of tools.
And other main objects.
As per the notice due to non- compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements
since financial year 2013, the name of the company was struck off and dissolved 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 appellants further submit that no notice under section 248(1) of the Act in the form of STK-1 was served on 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 filing of statutory
documents by company for the relevant period and still ROC publishing notice of striking off the name of the company 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 further brought forward the following facts about the company being in operation and functional during the period of striking off:
i. The copy of Bank Statement of the company, issued by State Bank of India, reflecting various transactions done by the company during the period
of striking off, having closing balance of Rs. 37,803.75/-as on 12.04.2018.
ii. The copies of financial statements of the company for the financial years up to 31.03.2017. The turnover as per last audited Profit and Loss
Account as on 31.03.2017 is Rs. 9,00,000/-
iii. The balance sheet as on 31.03.2017 also reflects leasehold property as tangible assets of value amounting to Rs. 5,87,67,600/- owned by the
company.
iv. The company has paid staff salary for the year 2017 amounting to Rs.6,66,000/-
v. Copy of GAR 7 having SRN G45911476 dated 13.06.2017 showing payment of tax of Rs. 3900/-
vi. The copies of Income Tax Returns filed for the assessment year 2013-14 to 2017-18. The company has paid income tax for A.Y. 2017-18 of Rs.
1,03,408/-
vii. The copy of TDS certificate in form 26 Q issued under section 200(3) of Income Tax Act, 1961 for the financial year up to 2016-17 showing total
tax deducted of Rs. 98,060/-
viii. The copy of UPVAT Annual Return having TIN 09966107321 for the financial year 2016-17
It is further submitted by the Appellant 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 Assesse 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 Appellants have submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct
company as per section 252(3) of the Act. Thus, taking into consideration the provisions of Section 252(5) 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.