Upasana Singh, Shareholder of Etheco Tourism Private Limited vs Registrar of Companies Delhi and Haryana

Harnam Singh Thakur, Member (Judicial)

This Company Petition has been filed by Petitioner-Upasana Singh, Shareholder of Etheco Tourism Private Limited, under Section 252(3) 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, Delhi and Haryana. It is stated that the respondent has issued a notification dated 30.06.2017 with the effect from dated 07.06.2017 whereby, the respondent had struck off the name of the Company from the register of companies maintained by it. Copy of the notice of striking off is attached with the petition as Annexure A-4. Copy of the Master Data of the company is attached with the petition as Annexure A-1.

It is contended that the Registrar of Companies, Delhi & Haryana i.e. the Respondent herein, struck off the appellant company’s name of the Register vide public notice ROC/STK/7 dated 30.06.2017, due to defaults in statutory compliances.

It is submitted that the appellant company, with its registered office in Gurgaon, Haryana, struck off the appellant company’s name of the Register due to defaults in statutory compliances, namely, failure to file statutory documents since the year 2014. 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, Delhi & Haryana and the Income Tax Department. The Affidavit of Service was filed vide diary No.00047/1 dated 12.09.2022. The Registrar of Companies, Delhi & Haryana has submitted a report vide Diary No.0047/2 dated 31.10.2022 that the company was incorporated on 16.06.2011 and the company has not submitted any documents to this office since the financial year ended on 31.03.2013 before it was considered to be struck off. Moreover, no subsequent documents had been filed by the company with this office to obtain the status of a “Dormant Company” under Section 455 of the Companies Act, 2013. Hence, this office had reasonable cause to believe that the company was not in operation. The name of the company was struck off as per the provision of Section 248(1)(c) of the Companies Act, 2013 read with Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 vide Notice in the form of STK-7 dated 07.06.2017. The action of striking off the present Company was legal and justified, as the company was not carrying on any operations for a period of two immediately proceeding financial years (as indicated by non-filing of the financial statements of the Company for two or more years). It is further submitted that the in the enclosed Financial Statements that there was ‘zero’ revenue from operations in all financial years of the Balance Sheet attached with the petition (i.e. 2014-2021) which clearly fails to support the claim of the company that it was carrying on the business at the time of the strike off.

It has been stated by the Income Tax Department in its report filed vide Diary No.00047/3 dated 13.12.2022 through Anita Maini, Income Tax Officer, Ward-1(3), Faridabad details of the ITR filed by the company are as follows:-

Sl.

No.

Particulars

A.Y.

Date of filing of return

Return of Income (in Rs.)

Deemed Income (in Rs.)

Refund (in Rs.)

1.

Details of ITR filed by the Company

2012-13

30.03.2013

(-)7095

NIL

NIL

2.

Whether any dues are pending

As per ITBA Recovery module no demand is outstanding.

Thus, there is no outstanding demand from Income Tax Department.

The affidavit was filed vide diary No.00047/04 dated 08.02.2023 wherein, it is stated that the appellant-Company was carrying on business and/or operations at the time the said Company was struck off by the respondent ROC and it is just and equitable to revive the appellant-Company. The appellant company has filed its Financial Statements for the Financial Years 2015-16 to 2020-21 with the petition which shows that at the time of striking off the name of the company, the company was carrying on business or was in operation.

After considering the submissions of the learned counsel on behalf of the petitioner and on a perusal of the report of Registrar of Companies, Delhi and Haryana, the Financial Statements submitted by the appellant company, 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, Delhi & Haryana, the respondent herein, is directed to restore the original status of the Appellant 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 Appellant company from ‘struck off’ to ‘active’.

b. The Appellant company is directed to file all pending statutory documents including annual accounts and annual returns along with prescribed fees/additional fee/fine as decided by Registrar of Companies, Delhi & Haryana within 45 days from the date on which its name is restored on the Register of Companies maintained by the Registrar of Companies, Delhi & Haryana.

c. The petitioner is directed to deliver a certified copy of this order to the Registrar of Companies, Delhi & Haryana 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, Delhi & Haryana to take appropriate action in accordance with the law, for any other violation/offences, if any committed by the Appellant 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 CP No.18/Chd/Hry/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.