RV Freighter Pvt. Ltd. vs Registrar Of Companies

As has been mentioned in the appeal, the Appellant company viz. RV Freighter Private Limited failed to file form INC-20A, thus omitted to comply with the mandatory provisions of the Companies Act, 2013, viz. Section 10A thereof. In the wake, the Registrar of Companies issued notice under Section 248(1) of the Companies Act, 2013 declaring its intention to remove the name of the company from the register of companies, in the event of non-filing of reply/objection within 30 days from the date of notice. According to the Appellant, the Board of Director could know about the omission in compliance of the aforementioned requirement when the company was in the process of filing annual return/financial statement. The order of striking off the name of the company from the register of companies in prescribed form (STK-5) was issued on 28.09.2022. It is pleaded on behalf of the Appellant that it could not file form INC-20A due to lack of professional guidance. According to the Appellant, its accounts have been duly audited by the statutory auditor and all necessary documents including the Balance-sheet, profit and loss account along with statutory audited reports for the F.Y ending 2022 were ready with the company for being submitting before the Registrar of the companies.

The Appellant company is maintaining Bank Account No.103705001040 with ICICI Bank. Nevertheless, in the wake of the order of striking of the name of the company i.e. Appellant from the register of companies, the Appellant is not in a position to operate the same.

The RoC has filed its report dated 01.06.2023, stating therein that as the Appellant failed to file the requisite declaration within a period of 180 days of the date of incorporation of the company, the prescribed form i.e. INC-20A with the Registrar stating that every subscriber to the memorandum had paid the value of the shares agreed to be taken by the Appellant Company, the provisions of Section 248(1) of the Companies Act, 2013 were invoked. Nevertheless, in para 9 of the report, it is admitted that the Appellant company has revenue from operation. Para 9 of the report reads thus:

Finally, the RoC has left it to this Tribunal to take an apt view in the matter, after requiring the Appellant to prove that it is carrying business. During the course of arguments, Ld. Counsel for the Appellant could submit that he is carrying business and as its account has been seized, it is finding difficult to pay the salary of its employee. In para 2 of the appeal, the Appellant has categorically stated that it is a functional and not a defunct company. The Appellant has also referred to its bank account which has been seized since the name of the Appellant Company is struck off from the register of companies. Para 6 (1) to (6) of the appeal reads thus:

“6. Facts of the case are given below:

The petitioner Company has not filed the Form INC-20A since incorporation to the Registrar of Companies within the stipulated time i.e, 180 Days from the incorporation, as prescribed under the provisions of Companies Act, 2013 due to lack of Professional Guidance. The Registrar of companies has issued notice under section 248 (1) of Companies Act, 2013 declaring its intention to remove the name of Company from the Register of Companies in case the reply is not filed by the company within a period of 30 days from the date of notice. However the notice was not received by the directors. The Director of the Company came to know about the non compliance during the process of Annual filling The Company is regularly conducting its meetings and have all the documents ready with them for filing and once the company is restored all documents shall be filed and compliance made. The restoration of the name of the company will enable it to go ahead with its business operation.

The Company has also held and convened its Annual General Meeting regularly. The company is a functional company and not a defunct Company. The Company has plans to expand its operations further. In case the company is not revived and remains struck off, it will be its unnatural death and will strike very hard blow to its contributories, which is against the natural justice.

The petitioner further submits that due to lack of coordination and 1 inadvertently the relevant Form-INC-20A i.e, Declaration for Commencement of Business could not be filed. However, the Directors or Management of Company ensure and declare that they have future plans to expand the business of the company. They also ensure that they will run the company with proper compliances, rules, regulation and provision of the Companies Act, 2013 which also reflect in the bank statement

The Company concedes that it has not been able to file its Declaration from commencement of business in form INC-20A due to lack of Professional Guidance. It has also been asserted by the petitioner that the accounts have been duly audited by the Statutory Auditors of the Company. All necessary documents including the Balance sheet, Profit and Loss account along with Statutory Auditors Reports (Annexure-12) for the F.Y ending 2022 are ready with the Company for submission before the Respondent.

The Company is a very much going concern and is evidenced from the Bank statement attached (Annexure 13).

That the Petitioner Company is maintaining Bank Account No. 103705001040 with ICICI Bank, the transaction in the mentioned Bank Account has also been seized by the Bank quoting the reason that on the instruction of Ministry of Corporate Affairs debit transaction in the aforesaid account has been freezed. (Anneхиге-13).”

In view of the report of RoC indicating that the Appellant company has revenue as also in the wake of the averments made in the appeal, we find that the company is doing the business and the Annual Return/Financial Statement were omitted to be filed only on account of lack of professional equipment by the personal concerned. Thus, the present appeal is allowed and the name of the Appellant company is directed to be restored in register of Companies within four weeks from the date of filing of form INC-20A. The Appellant shall be liable to pay the requisite fee/additional fee/penalty as may be imposed by the Registrar of Companies in term of the extent provisions of the Companies Act, 2013 and other relevant provisions of law. The Appellant shall pay a cost of Rs. one lakh to be deposited in consolidated fund of India, constituted under Article 266 of the Constitution of India. The receipt of payment of cost should be uploaded on the DMS/record, within given time. Let a copy of this order be served upon the RoC within 30 days.

The appeal is disposed of. No cost.