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Judgment
Dr. Deepti Mukesh, J
This appeal is filed by the Director, Shri Vishal Deoarshi, being the authorized vide Board Resolution Dated 03.01.2019 of the appellant company,
under Section 252(3) of the Companies Act, 2013 (for brevity ‘the Act’) against the order of striking off of the name of the company passed by
the respondent under section 248 (5) of the Act read with Rule 9 of Companies (Removal of Names of Companies from the Register of Companies)
Rules, 2016 published on 29.10.2019 vide public notice no. ROC-DEL/248(1)/STK-7/6217 by Registrar of Companies, the respondent herein.
The appellant is a private limited company incorporated on 28.05.2010, under the name and style of VD Intellisys Technologies Private Limited
under the provision of Companies Act, 1956 having CIN U72900DL2010PTC203285. The company is limited by shares and has its registered office
at 126, Second Floor, Mall Road Kingsway Camp, New Delhi -110007, The authorized share capital of the company is Rs.1,00,000/-divided into
10,000 equity shares of Rs. 10/- each and the issued, subscribed and Paid up capital of the company is Rs. 1,00,000/- divided into 10,000/- equity
shares of Rs. 10/- each.
The main objects of the company are:
“To provide quality education, guiding, training, counseling to students of ` all level at school, college, graduation and post-graduation
levels.†and other main objects.
A notice no. ROC-DEL/248(1)/378/3787342019 dated 20.07.2019 was issued by the Registrar of Companies that the company has not been
carrying on any business or operation for a period of two immediately preceding financial years and have not made any application within such period
of obtaining the status of dormant company under Section 455. The name of the company was struck off in terms of provision of Section 248 sub
section 5 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 dated 29.10.2019.
The Appellant has submitted the following evidence of it being in operation and the business activities being carried out by the company:
a) The audited financial statement of the company for financial 2016-2019,
i. revenue from operations in the financial years as on 31.03.2019 and 31.03.2018 being Rs. 5,92,34,473/- and Rs. 4,64,81,188/-respectively.
ii. The purchase of stock in Trade in the financial years as on 31.03.2019 and 31.03.2018 being Rs.3,55,40,831/- and Rs.2,07,06,152/- respectively.
iii. Depreciation and amortization expenses in the financial years as on 31.03.2019 and 31.03.2018 being Rs.10,75,491/- and Rs.6,03,111/- respectively.
iv. Administrative and other Expenses in the financial years as on 31.03.2019 and 31.03.2018 being Rs.2,79,89,474/- and Rs.2,50,63,555/- respectively.
b) The copy of Bank Statement of the current Account transaction of ICICI bank for the period of 01.04.2017 to 01.01.2019and 01.01.2019 to
31.10.2019, which reflects various transactions done by the company.
c) The appellant company has filed its income tax returns for the financial years 2016-17,2017-18 and 2018-19.
The public notice was published by the ROC-Delhi, at the website of Ministry of Corporate Affairs, wherein the name of the Appellant Company
was mentioned. The ROC proposed to remove/strike off the name of the appellant company unless a cause has been shown to the contrary within 30
days from the said Public notices.
The appellanthas stated that no notice under section 248(5) of the Act in the form of STK-7 was served through physical mode to the Company or
any of the directors of the company on their behalf and were not afforded any opportunity of being heard before striking off of the name of the
company. The appellant also had no knowledge of the same. Hence failed to make representation to the ROC- Delhi and could not file necessary
documents within the stipulated period of time.
The appellant company has admitted that there has been default for the non- filing of the documents with the registrar of the companies due to the
lack of proper professional guidance, oversight, inadvertent reason and without any malafide reasons, consequently, due to non-filing of such Financial
statements and Annual Returns, name of the Appellant Company was struck off by the Registrar of the Companies, NCT of Delhi & Haryana from
its Register of Companies pursuant to provisions of Section 248 of the companies Act.
However, without going into the controversy of the lapses, in following the due procedure of law, by Registrar of Companies before the final act of
striking off the name of the company from the register of companies maintained by Registrar of Companies, for non-filing of statutory documents by
company for the relevant period, through publication of notice, the appellants have preferred to prove with documents and records that the company
was in operation and doing business during the period of striking off of the name of the company as a better remedy.
It is further submitted by the Appellant that if the name of company is restored the company shall be able to continue the work and shall file all
outstanding statutory documents and returns i.e. financial statement and annual returns along with filing fee. Also, it is manifestly established the
Appellant Company is defunct or non-operational or dormant company within the meaning of Section 248 of the Companies Act, 2013.
11.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 filed their report. The appellant company has duly filed income tax return for the financial years 2016-17,
2017-18 and 2019-19 which has been annexed.
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 Appellant have submitted sufficient evidence that it has been in operation during the period of striking off and therefore could not be termed
as defunct company. 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 off the name of the company 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.