Sunomatic Power Private Limited vs Registrar of Companies

Harnam Singh Thakur, Member (Judicial)

This Company Petition has been filed by Appellant Company-Sunomatic Power Private Limited through its Director, Sh. Inderdeep Singh Khurana under Section 252(1) of the Companies Act, 2013 for restoration of the name of the struck-off company in the Register of Companies, maintained in the office of the Registrar of Companies, Himachal Pradesh. It is stated that the name of the company was struck off on 02.03.2022. Copy of the notice of striking off is attached with the petition as Annexure-P1. Copy of the Master Data of the company is attached with the petition as Annexure-P4.

It is submitted that the petitioner, with its registered office in Himachal Pradesh, struck off the petitioner’s name of the Register due to defaults in statutory compliances, namely, failure to file Annual Returns. Hence, the petitioner prayed for the passing of an order for the restoration of the name of the Appellant Company.

Notices were issued to the Registrar of Companies, Himachal Pradesh and the Income Tax Department. The Affidavit of Service was filed vide diary No.00819/3 dated 29.11.2022. The Registrar of Companies, Himachal Pradesh has submitted a report vide Diary No. 00819/04 dated 28.12.2022 that the Registrar of Companies, Himachal Pradesh had issued notice to the company and its directors in terms of Section 248 of the Companies Act, 2013 read with Rule 7 and 9 of Company (Removal of Names of Companies from the Registrar of Companies) Rules, 2016 because the company had not filed the statutory annual documents with the Registrar of Companies for the Financial year 2017-18 to 2020-21. Thus, believing that the company was not carrying on any business or not in operation at the time of struck off vide public notice ROC/STK/7 dated 02.03.2022 due to defaults in statutory compliances the name of the company was struck off .

It has been stated by the Income Tax Department in its report filed vide Diary No.00819/2 dated 23.11.2022 through Sh.Rakesh Thakur, Income Tax Officer, Mandi stating that the Appellant Company was incorporated on 14.07.2017 and as of now, neither any demand is outstanding against the Company nor any proceedings are pending.

The details of return of income filed by the Company are as under:-

A.Y

Date of filing of return

Returned Income (in Rs.)

Belated/ On time

Returned Income (in Rs.)

2021-22

11.01.2022

20.12.2021

On time

(-)25,376

The Appellant Company has not filed the Return of Income for the Assessment Year(s) 2018-19 to 2020-21 and as per provisions of Section 139(1) of the Income Tax Act, 1961, it is mandatory/ compulsory for companies and firms to file a return of Income or loss for every previous year on or before the due date in the prescribed form, failing which the said entity is liable for prosecution under Section 276CC of the Income Tax Act, 1961.

The compliance Affidavit was filed vide Diary No.00819/6 dated 28.02.2023 wherein it is stated that the Applicant Company ha been carrying on business and operations continuously since the incorporation and has been working on the day it was struck off and continue to working as on the date of this affidavit. Hence, it is clear that the Petitioner Company was carrying on business and was operative and working at the time its name was struck off. Copy of the Bank statements as on 09.04.2019-22.03.2022, Purchase order, GST return and Income Tax Return of A.Y. 2021-2022 are attached as Annexure-P6,7,8 of the main petition.

After considering the submissions of the learned counsel on behalf of the petitioner and on a perusal of the report of Registrar of Companies, Himachal Pradesh, the Bank Statements and Income Tax Return ended at 2021-22 have been submitted by the petitioner, and other documents placed on record, this bench holds that it would be just, equitable and fair in the interest of justice to provide an opportunity to the company to rectify its defaults and continue the business.

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

a. The Registrar of Companies, Himachal Pradesh, the respondent herein, is directed to restore the original status of the Petitioner 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 Petitioner company is directed to file all pending statutory documents, including annual accounts and annual returns, along with prescribed fees/additional fees/fines as decided by Registrar of Companies, Himachal Pradesh, within 45 days from the date on which its name is restored on the Register of Companies maintained by the Registrar of Companies, Himachal Pradesh.

c. The petitioner is directed to deliver a certified copy of this order to the Registrar of Companies, Himachal Pradesh, within thirty days of the receipt of this order.

d. On such delivery and after due compliance with the above directions, the Registrar of Companies is directed to publish the order in the official gazette under his 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. It will not come in the way of the Registrar of Companies, Himachal Pradesh, to take appropriate action in accordance with the law for any other violation/offences, if any, committed by the Petitioner Company prior to or during the period when the name of the company remained struck off.

f. The Income Tax Department may take the necessary action as per law for the 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 “PM Cares Fund” within three weeks from the receipt of the duly certified copy of this order.

The Company Appeal No. 2/Chd/HP/2022 is allowed and disposed of accordingly.

The Registry is directed to send e-mail copies of the order forthwith to all the parties including the counsel.