Sai Test House Private Limited And Ors vs Registrar Of Companies NCT Of Delhi And Haryana And Ors

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Director of M/s. Shree Sai Test House Private Limited (for brevity the 'Company'), under Section 252 of the Companies Act, 1956 (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, issued vide notification No. ROC/DELHI/248(5)/STK-7/4865 and published on 08.08.2018 by Registrar of Companies, the respondent herein.

The Appellant states that, the company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana under the Companies Act, 1956 on 08.10.2012 with CIN U85100 DL2012 PTC 243314, having its registered office at C-165, 2nd Floor, Mayapuri, Industrial Area, Phase - II, New Delhi - 110064, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 1,00,000/-. The issued, subscribed and paid up share capital of the Company is Rs. 1,00,000/-, as per the Master Data Annexed.

The main objects of the company are:

(i) To carry on the business of testing of allopathic, Ayurvadic, Homeopathic, medicines thereof all types & description.

(ii) To carry on the research & development of pharmaceutical formulations in all lines of medicines.

(iii) To act as consultants and advisors providing technical know-how and technical services for the establishment, operation and improvement of Nursing Homes, Hospitals, Clinical Institutions, medical centres and laboratories in India and abroad.

(iv) And the other main objects.

The appellant further states that, a sweeping action was initiated by the ROC, at the instance of MCA, in striking off the names of several Companies who had failed to file their Statutory Returns. The Appellant Company has not filed its Annual Returns and balance sheet for a period of two immediately preceding financial years, thereby giving rise to the surmise that the company was not in operation, in pursuance of Public notice STK - 5 dated 18.06.2018 Consequently, its name was struck off vide notice STK-7 dated 08.08.2018 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance with law and issuing a notification in the Official Gazette. The names of the effected companies were posted on its website.

The Appellant states that it is not known whether M/s. Shree Sai Test House Private Limited made any representation to the ROC in pursuance of a purported Public Notice bearing No. ROC/DELHI/248/STK-5/2018/2912 dated 18.06.2018 had sought explanation from the company as to why its name should not be struck off from the register of companies, on account of not carrying on any business or operation for a period of two immediately preceding financial years and having not made any application within such period for obtaining the status of a dormant company under section 455 of the Companies Act, 2013 (Act).

The Respondent herein had issued notice bearing no. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018 (name of the company is reflected at Sl. No. 19479), whereby name of 24280 companies have been struck off from the Registrar of Companies and the Company has been dissolved.

As per the notice of non-compliance of provision of the Companies Act, 2013, the said company has not filed its Annual Returns and balance sheet for a period of two immediately preceding financial 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 appellant has submitted that the financial statement upto the year ending 31.03.2015, alongwith other statutory documents, were duly filed by the Company with the ROC (duly reflecting in the Master Data of the Company). The company was active and was carrying out its business 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 said facts are evident from the Bank Account statement of the Company for the relevant period.

The Appellant has brought forward the following documents about it being in operation and functional during the period of striking off:

i. The copy of Bank Statements of the Company of Vijaya Bank for the period 18.07.2016 to 10.08.2018 showing various transaction details of the company and reflecting closing balance of (-) Rs. 29,824.90 cr. as on 10.08.2018.

ii. The copy of Bank Statements of the Company of ICICI Bank for the period 01.04.2016 to 10.08.2018 showing various transaction details of the company and reflecting closing balance of Rs. 4,789.24 cr. as on 10.08.2018.

iii. The copies of Audited Financial Statements of the company for the period from F. Y. 2015-16 and 2016-17. The Balance Sheet as on 2016-2017 reflects Current Assets of Rs. 1,709,014.12, Short Term Current Liabilities of Rs. 1,198,724.16 and Revenue from Operation is Rs. 36,707,960.00.

iv. The copies of Income Tax Returns for the Assessment Years 2016-17 to 2018-19. The tax paid by the company for A.Y. 2018-19 is Rs. NIL.

v. Copy of GST Registration Certificate.

vi. Copy of License issued from Drug Control Department.

The ROC has filed its reply on 24.09.2018 in which it has been submitted that the Company had not filed its Financial Statement since Financial Year ended on 31.03.2016. However, the ROC further submits that the company was struck off by the office of Respondent because neither the company was carrying on any operation for a period of two immediately preceding financial years, nor obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.

The Income Tax Department has filed its reply on 07.12.2018 in which it has been submitted that the Company has filed its Income Tax Return from the A. Y. 2013-14 to 2017-18 and no return has been filed for the A. Y. 2012-13 and 2018-19. The Revenue further states that there are no pending cases against the Company and no cash deposits have been made by the company in the period of demonetization.

The grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company carrying on business or was in operation at the time of striking off its name, and where it appears "just" to the adjudicating authority that the name of the company is to be restored to the Register of Companies and the Section 252(3) further contemplates that one of the above 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.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and during the period preceding strike off, therefore could not be termed as defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) 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 off the name of the company is hereby declared illegal and 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.