SILLA Hotels & Resorts Pvt. Ltd. vs Registrar Of Companies And Anr.

The appellant company M/s. Silla Hotels & Resorts Pvt. Ltd. (for brevity ""the company"") has filed this appeal under section 252 of the Companies

Act, 2013 (hereinafter called as the Act') through its Director Mr. Myoungja Cho against the order of the Registrar of Companies (ROC), NCT of

Delhi and Haryana dated 07.06.2017. The name of the company has been struck off from the Register of Companies maintained by the respondent

ROC, under section 248(5) of the Act read with Rule 7 and Rule 9 of Companies (Removal of Name of the Companies from the Register of the

Companies) Rules, 2016. The order mentioning the name of the Company at Serial No. 18499 with CIN U55101DL2012P1C241482 was duly

published in Official Gazette on 30.06.2017.

The company is incorporated under the provisions of Companies Act, 1956 as a Private Limited Company with the Registrar of Companies, NCT

of Delhi and Haryana on 01st September, 2012, having CIN U55101DL2012PTC241482.

The registered office of the company is situated at 312-312A Hemkunt Tower, 98-Nehru Place, New Delhi-110019.

The authorized share capital of the company is Rs.1,00,000/- divided into 10,000 equity shares of Rs. 10/- each and the issued, subscribed and paid

up capital of the company is Rs.1,00,000/- divided into 10,000 Equity Shares of Rs. 10/- each.

The main objects of the company are:

1). To carry on the business as hostels, restaurants, guest houses, beach resorts, holiday, camps canteens, cafes, taverns and/or other type of tourist

complex to provide accommodation, lodging houses and/or catering and food facilities for tourists including health clubs and/or any other type of

recreation facility related to hotel and hospitality industry

And other main objects.

It is further submitted that both the directors who were also the Promoters of the Company are foreign nationals. For statutory compliance and

other filing and maintaining of records of the company they totally relied upon the professionals engaged by them. Management of the Company has

done whatever required for the compliance on time. It is only due to carelessness of professionals and concerned staff, the company could not file the

returns for the years 2012 to 2017 and default has occurred in statutory compliance.

It That the non-compliance of the provisions of the Act was inadvertent and not a willful or with any mala fide intention. The striking off of the

name of the company from the register of the Registrar of Companies has jeopardized the interest of its shareholders and employees.

In order to expedite the restoration of the name of the company on the ROC portal, the appellant has brought forward the following facts about it

being in operation and functional during the period of striking off.

a). The copies of financial statements of the company for the financial year from 2012-13 to 2016-17. The company balance sheet for the year 2016-

17 reflects the profit of Rs.8,143,608/-.

b) The company has incurred employees benefit expense of Rs.18,10,709/- in financial year 2017.

c). The copy of the statement of bank account of the company with HDFC Bank reflecting number of transactions for business purpose during the

period of striking off.

d).The copies of Income Tax Returns filed for the assessment year 2013-14 to 2016-17. The company had paid Income Tax of Rs.379807/- in the

year 2016-17.

It is the case of the appellant that the non-compliance in terms of filing of statutory documents with ROC was unintentional and not with any ulterior

motives and is not of such a nature as to prejudice the interest of the creditors/shareholders and/or public at large and it is just and equitable that the

revival and restoration of the name of the company be allowed by this Tribunal.

The ROC has filed reply and have opined that subject to the compliance of section 252 of the Act and proving that the company being in business,

the name of the company may be allowed to be restored and has no other objection.

The IT Department has filed its report and confirmed that the company has filed its income tax returns till 2017-18 and has paid substantial tax

during the year of striking off and no demand is pending.

From the records submitted by the appellants can be inferred that the company was carrying on the business and it was in operation. Hence, the

objections raised by ROC is satisfied. The Income Tax Return placed on record has confirmed that the returns have been regularly filed.

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 ROC 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 some 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(3) 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 stake holders 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, stands 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 stands disposed of in terms of the above order.

Let the copy of the order be served to the parties.