VISHI Rail Infra Pvt. Ltd. vs Registrar Of Companies And Anr.

Present appeal is filed by the company, M/s VISHI Rail Infra Private Limited (for brevity the ‘Company’), through its Director, Dr. Pradeep

Kumar, under Section 252(1) of the Companies Act, 2013 (for brevity ‘the Act’) against the order of striking off the name of the company

passed by Registrar of Companies, the respondent herein, 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 30.06.2017 vide notification no. ROC-DEL/248(5)/STK-7/2879.

The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of

Delhi and Haryana on 07.12.2010 having CIN U35200DL2010PTC211155.

The company is having registered office at C6A/35A, Janakpuri, New Delhi-110058

Authorized share capital of the Company is Rs.1,00,000/-divided into 10,000 equity shares of Rs.10/- each and issued, subscribed and paid up share

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:

i. Designing, manufacturing, erecting, installation, commissioning, importing, exporting, buying selling, exchanging, distributing, repairing and servicing of

railway signaling and telecommunication equipment and any other equipment related to railways.

And other main objects.

As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements since

incorporation, 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.

It is stated by the appellant that no notice under section 248(1) of the Act in the form of STK-1 was served on the company or any of the directors

before striking of the name of the company but may it be so, the appellant further submits that the failure to file financial statements and annual

returns with the Registrar of Companies, NCT of Delhi was due to inadvertence on part of the management and on part of the Professional, CS

Kumar Aniket, who was hired to comply the statutory requirement of filing of documents with Registrar of Companies and as such there was no

wilful or mala-fide motive behind non-filing of the Financial statements and Annual returns.

However, without going into the controversy of the latches 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 on 30.06.2017, the appellant has preferred to prove with documents and records that the

company was in operation and doing business during the period of striking off the name of the company as a better remedy.

The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:

i. Copy of Bank Statement of the Company of ICICI Bank for the period 01.04.2016 to 31.03.2018 showing balance of Rs. 4,62,145.92 /- reflecting

various transaction details of the company during the period of striking off.

ii. The copies of financial statements of the company for the financial years from 2013-14 to 2016-17. The balance sheet as on 31.03.2017 reflects

tangible assets of Rs. 2,81,710.47/-

iii. The company has incurred employee benefit expense of Rs. 2,52,500/- for the financial year ending on 31.03.2017.

iv. The copies of Income Tax Return the assessment years 2013-14 to 2016-17. The Tax paid by the company for assessment year 2016-17 is

Rs.20,000/-

v. The copies of work orders issued by various enterprises in the favour of company during the financial year 2017.

vi. The copy of Workman’s Compensation Insurance, dated 03.02.2017, in the name of the appellant company reflecting total sum insured of Rs.

14,40,000/- for 15 workers.

vii. The copy of license, dated 05.05.2017, granted by Office of the Licensing officer and Assistant Labour Commissioner (Central), Ministry of

Labour and Employment in favour of the company.

viii. The copy of letter to the appellant company, dated 18.01.2017, from Sub-Regional Office, Employees’ State Insurance Corporation, for

implementation of the ESI Act, 1948 and Registration of Employees under section 1(3)/ 1(5) of the ESI Act, 1948.

ix. The copy of Form 5A dated 16.02.2017 filed by the appellant company under Employees' Provident Funds Scheme, 1952; The Employee's Pension

Scheme, 1995 and The Employees' Deposit Linked Insurance Scheme 1976 reflecting that company is engaged in the business of expert services.

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 submitted in its report that there is no outstanding demand against the Assesse and has no objection if the

company is considered for revival.

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 sufficient evidence that it has been in operation since incorporation 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 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 in terms of above order.

Let the copy of the order be served to the parties.