2019 (12) TMI 1403 - Tri - Companies Law

Restoration of the name of Respondent in the Register of Companies - section 252(3) of the Companies Act 2013 - HELD THAT - The appeal is filed under section 252(3) of the Companies Act 2013. While going through the section 252(3) of the Companies Act it is found that the instant provision is made when the company is struck of voluntarily on the behest of the Promoter(s)/Director(s) whereas section 252(1) of the Companies Act provides that when the company is struck of by the Registrar of Companies on the failure in filing of statutory returns by the Company - the instant application would not lie under section 252(3) of the Companies Act 2013; rather it would lie under section 252(1) of the Companies Act 2013. The name of the Company was struck off for continuous non filing of Statutory Returns. Hence considering the public interest and to protect the legitimate interest of revenue the name of the Respondent Company requires to be restored in the Register of Companies maintained by the ROC Ahmedabad so as to enable the Appellant (Income Tax Department) to proceed further as per rules and in accordance with law. It would be just and equitable to restore the name of the Company M/s. Insight Projects Pvt. Ltd. in the register maintained by ROC Ahmedabad Gujarat as the same is not barred by any law - the present appeal is allowed to the extent of revival of the Company and the ROC Gujarat Ahmedabad is hereby directed to restore the name of Company viz. M/s. Insight Projects Pvt. Ltd. in the Registrar of Companies - Application allowed.

Issues:
- Restoration of company name in Register of Companies
- Application under section 252(3) of the Companies Act, 2013
- Non-filing of statutory returns by the company
- Income Tax assessment for the Assessment Year 2012-13
- Justification for restoration of company name
- Legal provision applicable for the appeal
- Compliance with Companies Act and other statutory requirements
- Exemption of time consumed in the application process

Restoration of Company Name in Register of Companies:
The Department of Income Tax filed an appeal seeking restoration of the name of a company, M/s. Insight Projects Pvt. Ltd., in the Register of Companies after it was struck off by the Registrar of Companies. The appeal was made under section 252(3) of the Companies Act, 2013, following a circular from the Ministry of Finance. The ROC justified its action of striking off the company's name due to continuous non-filing of statutory returns since 2011.

Application under Section 252(3) of the Companies Act, 2013:
The appeal, initially filed under section 252(3), was found to be more suitable under section 252(1) based on the nature of the company's dissolution. Despite the misquoting of the law section, the Tribunal decided to treat the application under section 252(1) following a Supreme Court judgment allowing relief despite quoting the wrong provision.

Non-Filing of Statutory Returns by the Company:
The company's name was struck off for failing to file statutory returns, leading to the need for restoration to protect revenue interests and public interest. The Tribunal emphasized the importance of complying with statutory requirements under the Companies Act to ensure proper functioning and transparency.

Income Tax Assessment for the Assessment Year 2012-13:
The Income Tax Department had reopened the assessment for the relevant year, citing an outstanding income amount and unreported earnings by the company. The restoration of the company's name was deemed necessary to facilitate further legal and tax proceedings.

Justification for Restoration of Company Name:
The Tribunal found it just and equitable to restore the company's name in the Register of Companies to enable legal and tax processes to proceed lawfully. The decision aimed to protect the revenue's legitimate interests and uphold public interest.

Legal Provision Applicable for the Appeal:
The Tribunal directed the ROC to restore the company's name, subject to publication requirements in newspapers and official gazettes. The company was instructed to comply with all statutory requirements under the Companies Act.

Compliance with Companies Act and Other Statutory Requirements:
The decision to restore the company's name was based on the need to uphold public interest, revenue interests, and legal compliance. The ROC was directed to restore the company's name, and the company was required to fulfill all statutory obligations.

Exemption of Time Consumed in the Application Process:
The time taken for the application process was exempted for initiating Income Tax and legal proceedings against the company. The Tribunal's order was to be communicated to the ROC and the company, ensuring compliance with the restoration directive.

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