Unocon Infradevelopers Pvt. Ltd. And Anr. vs Registrar Of Companies And Anr.

The appeal under Section 252 of the Companies Act 2013 (hereinafter referred to as Act) read with Rule 87 A of the National Company Law

Tribunal Rules 2016, seeks restoration of the name of Unocon Infradevelopers Pvt. Ltd. (hereinafter referred to as Unocon) in the register of

companies. The appellants are Unocon and its Director Sh. Subash Kumar. The appeal is signed by Shri Subhash Kumar, director as authorized

representative of Unocon as well as on his own account. The affidavits of Shri Subhash Kumar as authorized representative of Unocon and on his

own account are filed at pages 11 to 16. The Board Resolution authorizing Shri Subhash Kumar director is Page 261.

Unocon was incorporated on 30.01.2010 as per certificate of incorporation at Annexure A-1 registered with the Registrar of Companies NCT of

Delhi and Haryana (ROC) under CINU45400DL2010P1C198505. The authorised, issued subscribed and paid up share capital of Unocon is stated to

be Rs.1,00,000/-divided into Rs.10,000/- equity shares of Rs.10/- each. The registered address is stated to be 921A, Ninth Floor, Devika Towers,

Nehru Place, New Delhi-110019. Therefore, the jurisdiction lies with this Bench of the Tribunal.

Vide order dated 5.10.2018, it was inter alia noted that the Learned Counsel for the appellant undertakes to file the amended memo of parties. The

amended memo of parties was filed by diary no.11231 dated 05.11.2018. The parties to the appeal have been taken above as per the amended memo

of parties.

The main objects for which Unocon is established as per the Memorandum of Association include the following:

To construct, erect, build, repair, re-model, demolish, develop, improve, grades, curve, pave, macadamize, cement and maintain building,

structures, houses, apartments, hospitals schools, factories, place of worship, highways, roads, paths, streets, sideways, courts, alleys,

pavements, site grading, boundary wall, plot fencing, ash pond, water reservoir, specialized works like Ash Dyke, reservoir and Pump

Houses etc. And to do other similar construction, levelling or paving work, and for these purposes to purchase, take on lease, or otherwise

acquire and hold any lands and prepare lay-out thereon or building of any tenure description wherever situate, or rights or interests

therein or connected therewith.

It is submitted that Clause 24 of the objects incidental to or ancillary to the attainments of the main objects of the Memorandum of Association

provides that investment is one of the objects of Unocon. It has been stated that Unocon has substantial investment during financial years 2014-15 to

2016-17 and that the balance sheet of Unocon for the year ended on 31.01.2015 shows an amount of Rs.50,00,00,000/- reflected as investment in

redeemable preference shares of Indian Hydro Electric Power Pvt. Ltd. and an amount of Rs.221,57,30,449/ - is reflected as share application money

(pending allotment) in the same company.

It is submitted that the financial statements along with other statutory documents for the Financial years 2015-16, 2016-17 were finalized on

01.09.2016 and 1.09.2017 respectively. It is stated that however, due to inadvertence the same were not filed with the ROC. Income Tax Returns for

assessment years 2015-16, 2016-17 and 2017-18 are stated to be filed on 27.03.2017, 30.03.2018 and 30.03.2018 respectively. The copy of the bank

account statement of Unocon have been annexed as Annexure A-4 (Cony) to corroborate that the company was not only active but also carrying out

its business.

It is stated that on 22.06.2018, the appellants received notice dated 21.05.2018 from the ROC for the removal of the name of Unicon from the

register of companies and that vide Form No.STK-7 dated 08.08.2018, the name of Unocon was struck off from the register of companies (Annexure

A-9- the name of Unocon is at serial no.22542 therein). It is submitted that there are sufficient grounds for restoration of the name of Unocon in the

register of companies. It has been prayed that the name of Unocon be restored in the register of companies maintained by the ROC.

Vide order dated 12.11.2018, the ROC and Income Tax Department were directed to file reply. The reply-cum- affidavit on behalf of the ROC has

been filed by diary dated 13.02.2019. It has been stated that Unocon has not filed its financial statement since the financial year ended on 31.03.2016

and that the name of Unocon was struck off by the office of ROC because of the fact that as per the records of the office of ROC, neither the

company was carrying on any operation for a period of two immediate preceding years nor obtained the status of a dormant company under Section

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 Unocon may be directed to file the financial statements upto date.

The report of the Income tax department has not been received despite further opportunity given in orders dated 15.01.2019 and 27.02.2019.

During the course of the hearing, the learned counsel for Unocon has pleaded that the investment by Unocon to the tune of Rs.271,57,00,000/-

sufficiently demonstrated that Unocon has been carrying on business and this is for corroborated by the filing of the Income Tax Returns as well as

the transaction in the bank account. The learned authorized representative for ROC has relied upon the report of the ROC.

We have carefully considered the submissions of the learned counsel for Unocon and the authorized representative of ROC and have perused the

record. The provision of Section 252(3) of the Act are as follows:-

252(3). If a company, or any member or creditor or workman there off eels 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.

In the present case, Appellant No.1 is the company and the appeal is also filed within the period of 20 years from the date of publication in the

Official Gazette. Therefore, the only issue requiring consideration is whether at the time of striking off, the company 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.

We have perused the financial statements for the financial years ending 31.03.2015, 31.03.2016 and 31.03.2017 filed as Annexure A3 and A5

(Colly) and no revenue from operations is being shown therein. However, it has been pleaded by the learned counsel for Unocon that Clause 24 of the

objects incidental or ancillary to the attainment of the main objects of the Memorandum of the Association provides that investment is one of the

objects of Unocon and that the Balance Sheet as on 31.03.2015, 31.03.2016 and 31.03.2017 shown non-current assets totalling to Rs.2,71,57,30,449.

The Balance Sheet on 31.03.2017 shows that the non-current assets include non-current investments of Rs.2,71,57,00,000/- comprising of investment

in Redeemable Preference Shares and Compulsory Convertible Debentures of Indian Hydro Electric Power Pvt. Ltd. of Rs.50,00,00,000/- and

Rs.2,21,57,00,000/- respectively. The copies of the preference shares and debentures certificates have been filed as Annexure A3 of diary no.11230

dated 05.11.2018.

The Income Tax Returns for the assessment years 2015-16, 2016-17 and 2017-18 are stated to be filed on 27.03.2017, 30.03.2018 and 30.03.2018

respectively i.e. before the date of 08.08.2018 when the name of Unocon was struck of from the register of companies. Moreover, the copy of the

bank account of Unocon in Axis Bank for the period 01.04.2016 to 31.03.2017 and details of transactions in the back account for the period

01.04.2017 to 31.03.2018 have been filed as annexure A-4 (Colly) to corroborate the contention that Unocon was not only active but also carrying out

business. We therefore conclude that even though no revenue from operations was being earned, Unocon can be said to be carrying on business or in

operation at the time its name was struck off from the register of companies.

The ROC has not raised any objections. Despite opportunities given, Income Tax Department did not file any reply.

The conditions provided in under Section 252(3) of the Act are therefore held to be satisfied in the present case. The case is thereby, considered

fit directing that the name of Unocon Infradevelopers 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. Unocon filing with the ROC 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; 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.