Sunshine Airlines Limited And Ors vs Registrar Of Companies

Dr. Deepti Mukesh, J

The present appeal is filed by the Director of M/s Sunshine Airlines Limited (for brevity the `Company'), under Section 252(1) 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 bearing No. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018 by Registrar of Companies.

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 13.01.2007 with CIN: U63040DL2007PLC157828, having its registered office at F.N. 509, Antriksh Bhawan 22, K.G. Marg, New Delhi- 110001 within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 2,00,00,000/- divided into 20,00,000/- equity shares of Rs. 10/- each. The issued, subscribed and paid up share capital of the Company is Rs. 2,00,00,000/- divided into 20,00,000/- equity shares of Rs. 10/- each, as per the Master Data Annexed.

The main objects of the company are:

a. To carry on the Services related to Aviation Industry such as Flight supervision, over flight and landing clearance for various scheduled and non-scheduled domestic as well as International Air carriers through Director General of Civil Aviation, Ministry of Defence and Ail port Authority of India.

b. To operate air service including air taxi operations, air charters-passenger and cargo, scheduled and non-scheduled airlines, air charters in India and abroad as may be approved by Government of India or any other competent authority,

c. And the other main objects.

The Respondent herein had issued Public notice bearing No. ROC/DELHI/248/STK-5/2018/2912 dated 18.06.2018. Consequently, its name was struck off vide notice bearing No. ROC/DELHI/248(5)/STK-7/4865 dated on 08.08.2018 (Company's name appearing at Sl. No. 21130) whereby name of 24280 companies have been struck off w.e.f. 08.08.2018 from the Registrar of Companies.

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 Sheets for a period of two immediately preceding financial years, thereby giving rise to the surmise that the business of the company was not in operation. Hence, 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 31.03.2016 along with 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 in Punjab National Bank for the period 26.05.2016 to 22.04.2018 showing various transaction details of the company and reflecting closing credit balance of Rs. 734.22/- as on 22.04.2018.

ii. Copies of Audited Financial Statements of the company for the period from 2014-15, 2015-16 to 2016-17. Financial Statement for F. Y. ended 2017 reflects Fixed Assets is Rs. 1,68,567.27/-. Current Assets in form of Cash and Cash Equivalents is Rs. 7,58,168.57/-. Revenue from Operation is Rs. 54,64,679 and Employees Benefit in form of Salary and incentives is Rs. 24,41,211/-.

iii. Copy of GST Certificate of the Company.

iv. The copies of Rent Agreement dated 29.08.2017 of House No. 11, Ground Floor, Dilshad Colony, Delhi - 110095 showing Rent Receipts for the period August, September and October 2015.

The ROC has filed its reply on 04.10.2019 in which it has been submitted that the Company had not filed its Financial Statement since 2015. 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 20.09.2019 in which it has been submitted that the Company has filed its Income Tax Return for the A. Y. 2008-09 and the company has not filed Income Tax Return for the A.Y. 2008-09. It 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 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 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.