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Judgment
This appeal is filed by the erstwhile directors of the company Cosmos Eco Engineering Private Limited (for brevity the `Company'), under Section 252(3) 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 08.08.2018 vide notification no. ROC-DEL/248(5)/ STK-7/4865 by Registrar of Companies, the respondent herein.
The company is incorporated as a Private Limited Company with the Registrar of Companies, NOT of Delhi and Haryana on 15.06.2004 under the provision of Companies Act, 1956 having CIN U24124DL2004PTC126961.
The company is having registered office at G-73, Second Floor, Abul Fazal Enclave-1 Jamia Nagar, Okhla Delhi-110025. The Authorized capital of the Company is Rs.1,00,000/- and issued, subscribed and paid up capital is Rs.1,00,000/-
The main objects of the company are:
i. To purchase and otherwise acquire, own, import, all materials, substances, appliances, machines, containers and such other articles and apparatus and things capable of being used in any of the main business and to won, lease and otherwise acquire and use facilities of whatever kind as may be convenient or useful or conducive to the effective working of the main business or nay part thereof.
ii. And other main objects.
As per the notice of non- compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements, 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 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 for the financial year from 2015-16 to 2017-18 reflecting loss of Rs. 2640.12/- on 31.03.2018. and reflecting cash and cash equivalent of total value amounting to Rs. 27,579.48/-
ii. The copy of Bank Statement of the company, issued by Kotak Bank, from 03.04.2014 to 15.04.2017, reflecting various regular transactions done by the company, during the period of striking off, having NIL closing balance.
iii. The copies of Income Tax Returns filed for the assessment year 2013-14 & 2014-15.
iv. The copy of the lease deed dated 07.07.2014 executed by the greater Noida industrial development area, Gautam Budh Nagar, Noida as lessor in favor of the appellant company as lessees for the property situated at plot no 24, ecotech-6, greater Noida Industrial Development Area, Gautam Budh Nagar admeasuring about 450 square meters each for the total consideration of Rs. 16,65,000/- for the term of ninety years.
It is further submitted by the Appellant 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 wilful 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 not submitted its report but the income tax return has been filed for the assessment year 2013-14 & 2014-15.
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 Appellants have submitted evidence of owning the immovable property before strike off and it has been in operation. 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 hereby declared illegal and 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 allowed and disposed of accordingly.
Let the copy of the order be served to the parties.