Sammasti Foods Private Limited vs Registrar Of Companies

Harnam Singh Thakur, Member (Judicial)

This Company Petition has been filed by the Applicant, Sammasti Foods Private Limited (hereinafter referred to as the ‘Applicant/Company’), through its Director Smt. Jagjit Kaur, who is stated to be 29% shareholder of the Applicant/Company and has been authorized by the Board of Directors of the Applicant/Company, vide Board Resolution dated 16.07.2021 (Annexure A-1) to file the present petition under Section 252(3) of the Companies Act, 2013 (hereinafter referred to as the ‘2013 Act’) against the public notice dated 30.06.2017 (Annexure A-8) published by Registrar of Companies, NCT of Delhi and Haryana, respondent No.1, whereby the name of the Applicant/Company has been struck off from the Register of Companies maintained by respondent No.1. In the present application, amongst certain other reliefs, a direction has been sought against respondent No.1 to restore the name of the company in the register of companies maintained by Registrar of Companies, NCT of Delhi and Haryana.

The brief facts, as stated in the petition, are that Applicant/Company was incorporated under the Companies Act, 1956 on 08.03.2010, vide CIN:U15400HR2010PTC040191, as a private company limited by shares and the same is registered with the office of Registrar of Companies, NCT of Delhi and Haryana. Its registered office is at H.No.26, MDC, Sector-5, Panchkula, Haryana. The Applicant/Company is involved in carrying on the business of restaurant owners, fast foods restaurants chain, refreshment rooms, contractors, refreshment room owners, licensed wine, beer and spirit liquor merchant, pleasure ground, place of amusements, recreations, sports and entertainment etc. The main objections of the company have been set out in Clause III(A) of Memorandum of Association of the Company (Annexure A-2). The Applicant/Company is a closely held company and the same is managed by three directors, namely, Gitika Bhatt (DIN:02764512); Hari Krishan (DIN: 02939247); and Jagjit Kaur (DIN:02939278).

It has been submitted on behalf of the Applicant/Company that the company was not able to file its balance sheet with the Registrar of Companies for the financial year ended 2014 till date, however, the company has been audited every year during the period of 2014 till date and also regular in convening its Annual General Meeting. It has been further submitted that Profit and Loss Accounts of the Applicant/Company and its balance sheet has been duly audited by the statutory auditors of the company and all necessary documents including the balance sheet, audit report and profit and loss account from 2014 to 2021 are ready with the Applicant/Company for submission before respondent No.1. Copies of the financial statements of the Applicant/Company since the financial years ended 31.03.2017 till 31.03.2021 have been enclosed as Annexure A-5 (Colly).

Further, it has been stated that before the company could make the default good, a notice dated 30.06.2017 was published by respondent No.1 on its website therein containing list of companies who have been struck off pursuant to Section 248 (5) of the 2013 Act w.e.f. 07.06.2017 and the name of the Applicant/Company was also included in the said list. Copy of notification confirming the striking off the name of the Applicant/Company and copy of master data of the Applicant/Company at MCA Portal has been annexed as Annexure A-8 (Colly).

Thus, it has stated that the non-filing of annual documents was an unintentional mistake on the part of the Applicant/Company, without any mala fide intentions and irreparable loss and injury would be caused to the Applicant/Company if the name of the Company is not restored. Further, it has been stated that no loss or any injury would be caused to the Respondents or any other person or authority/department if the name of the company is restored in the register of companies, maintained by respondent No.1.

Under the circumstances mentioned hereinabove, it has been prayed that the name of the Company be restored and the Applicant/Company undertakes that in the event of revival of the Company and restoration of its name in the Register of Companies maintained by respondent No.2, the Applicant/Company shall file all its pending statutory documents and pay the additional fee as applicable with the office of Registrar of Companies.

Notices were issued to the Registrar of Companies, NCT of Delhi & Haryana and Income Tax Department, vide order dated 09.02.2022. The Registrar of Companies, NCT of Delhi and Haryana has filed its report vide Diary No.01195/2 dated 10.03.2022 wherein it has been submitted that the Applicant/Company has not submitted any documents since financial year ended 31.03.2013 and thus, it was considered to strike off its name. Moreover, no subsequent documents had been filed by the Applicant/Company with respondent No.1 to obtain the status of a ‘Dormant Company’ under Section 455 of the 2013 Act. Further, in the said report, it has been stated that respondent No.1 issued the notice in the form of STK-1 in the month of March 2017 intimating the company and the directors of the company about the aforesaid defaults and providing them a fair opportunity to respond and it was subsequent that a public notice in the form of STK-5 dated 28.04.2017 was published in the newspaper and name of the company was struck off as per the provisions of Section 248(1)(c) of the Companies, Act 2013 read with Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, vide notice in the form of STK-7 dated 07.06.2017. Thus, it has been urged before this Bench by respondent No.1 that the Applicant/Company be directed prove that the Applicant/Company was carrying on the business and was in operation at the time when its name was struck off. Further, it has been prayed that if this Bench considers the application for restoration of the name of the company, necessary documents may be passed to the Applicant/Company to file all the pending Annual Returns and Balance Sheets with respondent No.2 along with the requisite fee and additional fee as prescribed in the Rules.

Income Tax Department, respondent No.2, also filed its report, vide Diary No.001195/1 dated 14.12.2021 through Lokesh Soni, Income Tax Officer, Ward 3, Panchkula, wherein it has been stated that after consulting the record it has been found that the Applicant/Company was incorporated on 08.03.2010, however, it has not filed any return of income for the Assessment Years apart from the Assessment Year 2013-14, wherein NIL income was declared. Further, it has been stated that as of now no demand is outstanding against the Applicant/Company and no proceedings are pending against it. Thus, in view of the above, it has been prayed that appropriate orders may be passed and the interest of the Revenue be protected and further liberty be granted to the Income Tax Department to proceed against the company for non-filing of the return of income/other default(s) under the provisions of Income Tax Act, 1961 and the Applicant/Company be also directed to discharge the demand, if any, found later on against it.

When the matter was listed on 30.06.2022, the Applicant/Company was directed to file an affidavit stating that at the time when its name was struck off, it was carrying on the business and/or was in operation. In compliance thereof, compliance affidavit was filed vide Diary No.01195/4 dated 02.08.2022, wherein it has been deposed on behalf of the Applicant/Company that it was carrying on its business and/or operations before, during and after 07.06.2017 i.e. the date on which its name was struck off. Further, it has been stated in the said affidavit that there is land in the name of the company, which was initially allotted to Mrs. Gitika (one of the Directors) vide allotment letter dated 16.06.2008 by Haryana State Industrial and Infrastructure Development Corporation Ltd. (‘HSIIDC’) and thereafter which stood transferred in the name of the Applicant/Company vide letter dated 20.08.2010 (Annexure A-4). In support of this contention, it has been submitted that there are number of judgments passed by Hon’ble NCLAT and even this Tribunal, wherein it has been held time and again that it is just and equitable to revive the company based on the fact that the company has immovable property in its name. Reliance has been placed upon one such judgment dated 06.12.2019 passed by the Hon’ble NCLAT, New Delhi, in Company Appeal (AT) No.177 of 2019; Calcutta Rubber Factory Private Limited and Others versus Registrar of Companies, Delhi and Haryana, wherein the Hon’ble Appellate Tribunal, revived the company on the basis of leasehold property.

We have heard learned counsel for the Applicant/Company and learned Senior Standing Counsel for the Income Tax Department. We have also carefully perused the record of the case file as well as the reports submitted by respondent No.1, Registrar of Companies, NCT of Delhi and Haryana, and respondent No.2, Income Tax Department.

After hearing and considering the submissions of the learned counsel on behalf of the Applicant/Company and on perusal of the record available before us, we are of the considered view that it would be just, equitable and fair to provide an opportunity to the Applicant/Company to rectify its defaults and continue the business, in the interest of justice.

Accordingly, in exercise of the powers conferred on the Tribunal under Section 252 of the Companies Act, 2013, the petition is allowed with the following directions:-

a. The Registrar of Companies, NCT of Delhi and Haryana, respondent No.1 herein, is directed to restore the original status of the Applicant/Company as if the name of the company had not been struck off from the Register of Companies with the resultant and consequential actions like changing status of petitioner company from ‘struck off’ to ‘active’.

b. The Applicant/Company is directed to file all the pending statutory documents including annual accounts and annual returns along with prescribed fees/additional fee/fine as decided by Registrar of Companies, NCT of Delhi & Haryana within 45 days from the date on which its name is restored in the Register of Companies maintained by the Registrar of Companies, NCT of Delhi and Haryana.

c. The Applicant is directed to deliver a certified copy of this order to the Registrar of Companies, NCT of Delhi & Haryana within thirty days of the receipt of this order.

d. On such delivery and after due compliance of the above directions, the Registrar of Companies is directed to publish the order in the Official Gazette under its office, name and seal.

e. This order is confined to the violations, which ultimately led to the impugned action of striking off the name of the company, and it will not come in the way of Registrar of Companies, NCT of Delhi and Haryana to take appropriate action in accordance with law, for any other violation/offences, if any committed by the Applicant/Company prior to or during the period when the name of the company remained struck off.

f. The Income Tax Department may take necessary action as per law for non-filing or belated filing of the Income Tax Returns of the Company for any of the assessment years and also for recovery of outstanding demand, if any.

g. This order will be subject to payment of costs of ₹50,000/- (Rupees Fifty Thousand Only) to be paid in favour of “Pay and Accounts Officer, Ministry of Corporate Affairs” within three weeks from the receipt of the duly certified copy of this order.

Thus, CP No.87/Chd/HRY/2021 is allowed and disposed of accordingly. Registry is directed to send copy of this order through e-mail to all the parties including the counsel. Registry is also directed to issue certified copy of this order to the concerned parties.