Super Transsystem Private Limted vs Registrar Of Companies And Anr.

Pradeep R. Sethi, Member(T)

The appeal is filed U/s. 252 of the Companies Act, 2013 (hereinafter referred to as Act) seeking restoration of the name of Super Transsystem

Pvt. Ltd. (hereinafter referred to as Company) in the register of companies maintained by the Registrar of Companies, NCT of Delhi and Haryana

(ROC). The appeal in Form No. NCLT.9 is signed by Shri Karan Gupta, Director. Board Resolution authorising Shri Karan Gupta, Director is at

Annexure A-10 of the appeal.

The Master Data of the company is at Annexure A-1. The company was incorporated on 1.4.2008 and its CIN is U35900DL 2008PTC176226.

The authorised and paid up capital is Rs. 1,00,000/- divided into 10,000 shares of Rs.10 each. The registered address as per the Master Data is E-

2/244, Second Floor, Shastri Nagar, Near Shastri Nagar Metro Station, Delhi-110052. Therefore, the jurisdiction lies with this Bench of the Tribunal.

The copy of the Memorandum and Articles of Association of the company is at Annexure-A ( Colly.). The main objects include:

To Carry on business as general carriers, and freight forwarders and to prove carrier freight transport, courier taxi truck light or heavy haulage and

delivery services by land, road, railway, sea, river, canal, water, or air for and in connection with any containers packages parcels, mails, goods, or bulk

commodities.

It is stated that the company has been complying with all the provisions of the Companies Act, such as, holding Board meeting, holding AGM for

adoption of the account of the company and maintaining all the requisite record as per the provisions of the Companies Act, 1956/2013. Default is

admitted for non-filing of the financial statement of the company with the ROC but it is stated that the company was regularly filing its income tax

returns.

It is submitted that due to failure to file annual return and financial statement for the financial year ended 31.3.2016 and 31.3.2017, the ROC

initiated proceedings under section 248 of the Act for the purpose of striking off the name of the company from the register of companies.

It is stated that the company is continuously in operation and generating revenue from its business and the revenue from operation was

Rs.5,34,17,851/- and Rs.3, 27,21,871/- during financial years 2016-17 and 2015-16 respectively. It is submitted that the company was regular in filing

the TDS returns under Section 200(3) of the Income tax Act, 1961. It is submitted that the name of the company was included in the public notice

wherein 24280 companies were struck of from the register of companies w.e.f. 8.8.2018 despite the fact that no notice was ever sent to the company

or any of its directors. It is submitted that the company is maintaining its bank account with Axis Bank and has substantial amount of Rs. 8,49,591/-as

on 31.3.2018 in its bank account. It is stated that the company did not appoint any professionals like Chartered Accountants or Company Secretary for

the secretarial work earlier but now, the company has engaged a Company Secretary for preparation of records and for looking after the statutory

compliances of the company. It has been prayed that in the interest of shareholders and other stakeholders, the name of the company be restored to

the register of the companies and the company be allowed to file all the statutory documents, pay all the dues and get back to a state of normalcy in

order to reap the benefit of the present business for the shareholders.

Vide order dated 26.09.2018, the ROC and Income tax Department were directed to file reply within 3 weeks. Vide diary dated 25.1.2019, reply-

cum-affidavit on behalf of the ROC has been filed. It is stated that the company has not filed its financial statement since financial year ended on

31.3.2016, due to which the ROC has reasonable cause to believe that the company was inactive and in terms of section 248(1) of the Act, read with

Rule 7 of the Company(Removal of Companies from the Registrar of Companies)Rules, 2016, action for striking off had been initiated. It is submitted

that the ROC had sent letter dated 22.6.2018 to various statutory authorities, such as, Incometax Authority, RBI and Central Excise seeking objection

against the company for action of striking off u/s. 248(1) of the Act no objection was received and the name of the company was struck off from the

register of companies in terms of Section 248(5) of the Act vide notice STK-7 dated 8.8.2018. It is submitted that the company was struck off by the

office of ROC because of the fact that as per the record of the office of ROC, neither the company was carrying on any operation for a period of 2

immediately preceding financial years or obtained the status of a dormant company U/s. 455 of the Act. It has been prayed that the company may be

directed to prove that it was carrying on business or was in operation and that it is just that the name of the company be restored to the register and

the company may be directed to file the financial statement upto date.

The Income tax Department has submitted report vide diary dated 24.4.2019. It has been stated that income tax returns were filed for assessment

years 2012-13 to 2017-18 and that no proceedings are pending.

We have considered the submissions of the learned counsel for the appellant, the learned company prosecutor and the learned standing counsel for

the Income tax Department and have also perused the record. Relevant provisions of Section 252(3) of the Act are as follows:

“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

9as may be as if the name of the company had not been struck off from the register of companies.

The appeal is filed by the Company and within the period of 20 years from the publication of the notice of striking off in the Official Gazette.

Therefore, the only issue requiring consideration is whether the company at the time of its striking off, was carrying on business or in operation or it is

otherwise just that the name of the company be restored to the register of companies.

The company is engaged in transportation business. The financial statements for the financial years ending on 31.3.2016 and 31.3.2017 have been

filed as Annexure A-5 (Colly.) The profit and loss account shows revenue from operation of Rs.1,75,44,949/- Rs.3,27,21,871/- and Rs.5,34,17,851/- for

the financial years 2014-15, 2015-16 and 2016-17 respectively. For the three financial years, expenses under the heads of Cost of Services,

Employees Benefit expenses, financial costs, depreciation and amortisation expense and other expenses are shown to have been incurred. The

company has also filed the copy of the bank statement with Axis Bank for the period 4.4.2015 to 28.3.2018 to show that it was carrying on operations.

The Income tax Department has stated that the income tax returns for assessment years 2012-13 to 2017-18 were filed on date between 30.3.2013 to

2.11.2017. The company was struck off from the register of companies vide notice STK-7 dated 8.8.2018. Therefore, the Income tax returns were

filed before the date of striking off. Moreover, the details furnished by the Income tax Department show that for assessment years 2015-16 to 2017-

18, the returned income was Rs.4,61,940/- Rs.11,66,010/- and Rs.13,46,730/-respectively and Income tax was paid for these years.

The ROC has not raised any objection to the revival of the company.

13.. In view of the above discussion, we are satisfied that the company was carrying on business and in operation and since the conditions provided

for by Section 252(3) of the Act are satisfied, we direct that the name of the company Super Transsystem Pvt. Ltd. be restored to the register of

companies.

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 Companies is ordered subject to:

i. the Income Tax Department being at liberty to proceed against the company for non-filing/delayed filing of returns and for recovery of the demand,

if any

ii. subject to its filing with the ROC 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 ROC for the late filing of statutory returns,

iii. and also subject to payment of cost of Rs. 25,000/- to the Prime Minister’s Relief Fund. The name of the Company shall then, as a

consequence, stand restored to the Register 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.