Rudra Khurana And Ors. vs Registrar Of Companies And Anr.

This appeal is filed by Mr. Rudra Khurana, Ex-Director on behalf of the company, M/s Mabel Infrastructure and Development Private Limited (for

brevity the `Company'), along with its two ex-directors 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 24.03.2009 having CIN U70200DL2009PTC188778.

The company is having registered office at D-53, Okhla Industrial Area, Phase 1, New Delhi-110020.

Authorized capital of the Company is Rs.35,00,000/- divided into 3,50,000 equity shares of Rs.10/- each and issued, subscribed and paid up capital

of the company Rs.11,00,000/- fully subscribed divided into divided into 1,10,000 Equity Shares of Rs.10/- each.

The main objects of the company are:

i. To acquire by purchase, lease, exchange, hire, lands and immovable property of any description and of any tenure or any interest in the same, in

India or elsewhere.

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 for the

last two years, 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 appellants have stated that the appellants were not given any opportunity of being heard prior to striking-off the name of the company and the

striking-off the name of the company has caused great financial loss to its stakeholders.

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 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 the company, issued by Punjab and Sind Bank, Greater Noida as on 17.06.2017, reflecting various transactions done

by the company during the period of striking off the name of the company, having closing balance of Rs. 3,95,495.70/,

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. 1,58,490/- and corresponding profit for the same period is Rs. 2,140.

iii. The balance sheet as on 31.03.2017 also reflects fixed assets of total value amounting to Rs. 42,32,000/-

iv. The company has incurred employee benefit expense of Rs.1,08,000/ - for the financial year 2016-17.

v. The copies of Income Tax Returns filed for the assessment year 2009-10 to 2017-18. The tax paid by the company for A.Y. 2017-18 is Rs. 2,140/-

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.