Sukhmani Technologies Pvt. Ltd vs Registrar Of Companies And Ors.

Present appeal is filed by Sukhmani Technologies Private Limited (for brevity the ‘Company’), through its authorised representative Mr.

Hardeep Singh Bedi for revival, under Section 252 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 appellant company namely Sukhmani Technologies Pvt. Ltd. (hereinafter referred to as the ‘Company’) was incorporated on 12.09.2000

as a Private Limited company, limited by shares under the provisions of the Companies Act, 1956 having CIN U72200DL200PTC107679.

The company is having its registered office at A 235, Okhla Industrial Area, Phase I, New Delhi - 110020.

The authorised share capital of the Company is Rs.60,00,000/- divided into 6,00,000 equity shares of Rs. 10 each. The issued, subscribed and paid

up Equity share capital of the Company is Rs. 50,99,600/- divided into 5,09,960 shares of Rs. 10 each.

The main objects of the company are:

i. To design, invent, prepare, own, make use of, hire, buy, sell, import, export or otherwise dispose off and to deal in high technology area, including

electronics, vide Media, Computers, Hardware, Software and Communication Technologies.

And other main objects.

As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of financial statements for years 2013-2014 to

2016-17, 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 company was in operation and the business activities were carried out by the company 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 Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:

i. The copy of financial statements of the company Sukhmani Technologies Private Limited for the financial years 2013-2014 to 2016-2017. The

Balance Sheet of the company as on 31.03.2017 reflects ‘Fixed assets’ of Rs. 17,89,23,179/- and ‘cash and cash equivalents’ of

Rs.3,67,869/-.

ii. The copies of bank statements of Bank of India, having closing balance of Rs. 36,050 /-as on 28.06.2018. The copy of bank statement of Yes Bank

having closing balance of Rs. 6,989.74 /- as on 31.03.2018 and the copy of bank statement of Kotak Mahindra Bank having closing balance of Rs.

2,96,425.31 /- as on 31.03.2018.

iii. The copies of ITR filed for the assessment years 2013-14 upto 2017-18 showing tax expense in the Profit and Loss Statement. The tax paid for

assessment year 2017-18 is NIL as per the report.

It is further submitted by the Appellant company that no action for striking off can be initiated against the company against which any prosecution

for an offence is pending or Companies in respect of which any charges are pending. The appellant company has submitted that the charges exists in

respect of a financial transaction availed by the appellant company in favour of M/s STCI Finance limited. In this regard an Arbitration was initiated

by STCI before Sole Arbitrator Justice R.C. Chopra (Retd) and an award dated 11.08.2017 was passed whereby the STCI was directed to render

proper accounts to appellant company to determine the amount payable (Annexed with the appeal). Being aggrieved by the Award an Objection under

Section 34 was filed by STCI being OMP (COMM) No. 340.2017 and a notice was issued by the Hon’ble High Court vide order dated

20.09.2017.

It is further submitted by the Appellants 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 willful 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 filed a report signed by Income Tax Officer, Ward 24(3), New Delhi, finding that there is an outstanding tax

demand of Rs. 1,00,72,910 /-under section 271 (1) (c) of the Income Tax Act, 1961 for AY 2011-2012. In response to the same, the appellant

company states that an appeal before the Income Tax Appellate Tribunal has been preferred and the same is pending consideration therein.

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. It is also seen from the perusal of the provisions under Section 252(3), that if Tribunal is of the opinion it is “just†that the

name of the company is to be restored to the register of companies maintained by Registrar of Companies, such orders can be passed for the name of

the company to be so restored. For reference, the provisions of Section 252(3) of the Companies Act, 2013 is extracted hereunder:

252(3) “If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the

register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years

from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the

time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the

register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give

such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly

as may be as if the name of the company had not been struck off from the register of companies.

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 Appellant has submitted evidence mainly of the possession of immovable property by the company and further efforts of investment to be

made in immovable property by the company and that it has been in operation during striking off and therefore could not be termed as defunct

company. 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 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.