AI Structured Summary
Not yet generated for this judgment
Judgment
Rajesh Dayal Khare, J
The present appeal is filed by the Appellant U/s 252(3) of the Companies Act, 2013 read with Rule 87A of the National Company Law Tribunal Rules, 2016 for restoration of name of RRA Developers Private Limited struck off by the Registrar of Companies, Uttar Pradesh U/s 248 of the Companies Act, 2013 read with Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, from the Register of Companies maintained by the Registrar of Companies, Uttar Pradesh.
Facts of the appeal are stated as under:
i. The Appellant Company RRA Developers Private Limited was originally incorporated on 23.03.2006 with the Registrar of Companies, Uttar Pradesh having CIN U45201UP2006PTC031512.
ii. The Appellant Company is involved in business of purchase, acquire, taken on lease, in alike nature of wok since its incorporation. The same is mentioned in the Memorandum of Association of the Company.
iii. Appellant submitted that the Registrar of Companies (Respondent herein) vide Public Notification dated 22.05.2010, struck off the Appellant Company's name due to default in statutory compliances w.r.t filing of Financial Statements and Annual Returns, thus giving the status of a Dormant Company u/s 455(1) of Companies Act, 2013.
iv. Appellant also stated that the Company has been active since its incorporation and had continuously maintained all the financial accounts including financial statements and Profit & Loss account as required under the Companies Act, 1956 and Rules made thereunder. However, it is also submitted that the Company could not submit the same with Registrar of Companies since 2011 due to miscommunication between Statutory Auditors and the Appellant Company. Further, it was submitted that the Appellant Company has made compliances of Income Tax with the competent authorities for financial year 2012-13,2013-14 & 2014-15 and has certain assets that necessitate restoration of its name in the record of RoC.
v. It is further submitted that the Appellant Company received notice dated 03.04.2017 from RoC for removal of name of Company from Register of Companies and was asked for representation within 30 days from the date of receiving notice. And to the same notice, the Appellant Company sent its representation on 03.05.2017 seeking time limit of 60 days for filing all statutory documents and to retrieve the data from the systems. In the meanwhile. Company has filed form SH-7 to increase its authorized share capital from Rs. 2,50,000/- to Rs. 10,00,000/- on 02.06.2017 vide SRN No. G45150182 with additional fees of Rs. 4,46,136/- which was marked for resubmission for attachment of MOA and filing of pending Annual Return and Balance sheets. MOA was attached but Annual returns and Balance sheet could not be filed without approval of Form SH-7. Appellant communicated the same to RoC through mail and speed post and in the meanwhile it was found out that the Company was struck off. Afterwards, the Appellant received mail on 05.07.2017 from RoC, intimating that Form SH-7 has been treated as invalid and transaction has been cancelled by RoC as the Company's name has been struck off. Hence this appeal.
Upon notice being issued to the Respondent, RoC have filed their counter and stated that the name of the company was struck off after duly complying with (he provisions of 248 of Companies Act, 2013 Read with Rule 3 of the companies (Removal of names of Companies from Register of companies) rules 2016 after providing reasonable opportunity of being heard. No reply to the said Show Cause notice dated 01.02.2010 was received from the Company or its Directors. Further stated that neither any representation was received from company/its directors nor was any objection received from any person, accordingly, the company was dissolved.
Further, the Income Tax Authorities in its representation mentioned that the Appellant Company has filed its Income Tax Returns for Assessment Year 2011-12 on 29.03.2012 declaring its returned income Nil, for year 2016-17 and 2017-18 on 30.03.2018 in which the Appellant declared a total income of Rs. 8,120/- and 14,786/-. No return has been filed for assessment years 2012-13,2013-14, 2014-15 and 2015-16. Further stated that, on verification of the registered address of the Appellant Company it was found out that the Company existed on the same address.
Further, in order to corroborate its submission, the Appellant has placed before us the Audited Balance Sheet reflecting Authorized Share Capital of Rs. 68.05.000/-, Assets (current) amounting to Rs. 13,474,440/- and Cash and Cash Equivalents amounting to Rs. 13,499.931- in account as per balance sheet of the financial year ending on 31.03.2010. And also filed the Income Tax returns for assessment years 2011-12, 2016-17 & 2017-18. As per the above details, the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations.
It is averred by the Appellant Company, that, in the event of revival of the Company and restoration of the name of the Company in the Register maintained by the Registrar of Companies, the Appellant shall file all the outstanding statutory documents i.e. the Financial statements and Annual returns up to date and shall continue to do so in future.
Heard the rival sides and perused the record. It is not in controversy that the Appellant Company has not filed its Annual Return and Balance Sheet with RoC. Moreover. the dispute regarding Nil turnover of the company is also taken into consideration. But failure on the part of the Appellant and its Directors to adhere to the statutory compliances and also Nil turnover of the Company is attributed to a variety of reasons including adverse market conditions, financial issues etc. The documents relied upon by the Appellant unmistakably demonstrate that the Appellant Company is a living entity.
This Tribunal has examined the relevant provision applicable for restoration of the name of the company as provided in Section 252 of the Companies Act 2013 and as per the facts and circumstances of the case, it will be in the interest of the Company, its Shareholders and Creditors, the name of the Company be ordered to be restored by this Bench while exercising its jurisdiction U/s 252 of the Companies Act. 2013 read with Rules made thereunder.
The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act 2013, which includes that, if it is just and equitable to restore the name of the company in the Registrar of Companies, it may direct the ROC to restore the name in its Register.
The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various courts it should only be an exceptional circumstance that court should refuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight.
Accordingly, the Registrar of Companies, the Respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the Company has not been struck off from the Registrar of Companies and take all consequential actions such as change of Company's status from 'Strike Off' to 'Active' (for e-filing), restoration of status of DIN etc.
The Appellant Company is directed to file all the statutory document(s) along with prescribed fees/additional fee/fine as decided by RoC within thirty days from the date on which its name is restored on the Register of Companies by the RoC.
The restoration of the Company's name is also subject to the payment of cost of Rs. 50,000/- (Rupees Fifty Thousand Only) through online payment in www.mca.gov.in under miscellaneous fee by mentioning particulars as "payment of cost for revival of Company pursuant to orders of NCLT in CA No. 116/ALD/2017.
The Appellant is permitted to deliver a certified copy of this order with RoC within thirty days of the receipt of this order. On such delivery and alter duly complying with above directions, the Registrar of Companies, Kanpur is directed to, on his office name and seal, publish the order in the Official Gazette.
The Appellant shall publish a notice in leading newspaper in the district, regarding restoration of company after taking approval of the draft notice from RoC. The RoC is directed to verify the draft notice and approve the same if it is in order.
The RoC is directed to publish in the Official Gazette of the Government of India with regard to the restoration of the name of the company in the Register of Companies maintained by the Office of (he Registrar of Companies at the expenses of the Appellant.
The appeal is disposed off accordingly.