TMI Blog2019 (8) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... he same cannot become a ground for restoration of the company. In the present case, it is not in dispute that company has failed to file the returns and annual financial statements and has also not obtained the status of a dormant company prior to striking off the name of the company from the register of companies. The company and/or its directors have also not responded to the notice issued by Registrar of Companies under section 248(1) of the Companies Act, 2013 - There is also no valid ground for restoration of the name of the company for the reason that it caused great hardship to the directors of other companies as they have come to this situation because of their own inaction and non-compliance. Appeal dismissed. - Appeal No. 646/KB/2019 - - - Dated:- 20-8-2019 - Virendra Kumar Gupta Member (Technical) and M.B. Gosavi, Member (Judicial) Mr. Rantu Kumar Das, PCS } For Petitioner Mr. Rohit Kumar Keshav, PCS } Mr. Vineet Rai, DROC } For ROC, West Bengal ORDER This appeal under Section 252(1) of the Companies Act, 2013 and Companies (Removal of Names of Companies from the Register of Companies) Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, letting, sub-letting, maintaining, allotting, transferring allotment, administering, dividing and sub-dividing holding and by constructing, re-constructing, altering improving, decorating, furnishing and maintaining hotels, rooms, inns, flats, houses, apartments, restaurants, bars, resorts, clubs, convention exhibition halls, cinema houses, markets, shops, workshops, mills, factories, warehouses, cold storages, whaves, godowns, offices, safe deposits vault, hostels, gardens, swimming pools, playground, buildings, immovable property of any kind works and conveniences of all kinds and by leasing, hiring, letting or disposing of the same and to act as brokers and commission agents in real estate business and to act as a general contractor, sub-contractors and to do any construction, manufacturing, building, road making, engineering and all other kinds and description whatsoever for any person, firm, AOP, society, company, public body, government, army, navy, railway etc. by the company itself or in partnership at will. Such company or individuals or persons as may be thought fit by the directors. 3. The company filed Annual Returns upto financial year 2013-2014. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Company Appeal (AT) No. 171 of 2018 (Arising out of Order dated 6th April, 2018 passed by National Company Law Tribunal, Kolkata Bench, Kolkata in Appeal No. 525/KB/2017), being order dated 24.01.2019 (Basant Kumar Berlia Anr. Vs. ROC, Kolkata Anr.), and drew our attention to paragraphs 24 and 28 of the said order. 5. The Ld. ROC, on the other hand, has submitted as under:- i) That application under section 252(1) of the Companies Act, 2013 filed by Ayan Mallick claims to be one of the shareholders of the company holding shares. As per the last annual return made upto 15.09.2014 filed with this office, he is not a shareholder of M/s. Moontree Real Estates Ltd., hence, same may be put to strict proof. However, the petitioner is one of the directors of the company. Further, the audited financial statement annexed to petition for the year ended 2014-15 to 2017-18 are not verifiable since the company has not filed the audited accounts with the office of respondent. ii) In exercise of the power conferred upon the Registrar of Companies under Section 248 of the Companies Act, 2013 the said Registrar can strike off the name of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of obtaining the status of dormant company under section 455 of the Companies Act, 2013. Further, it is submitted that due to non-filing of statutory returns by the Company, the competent authority drew an opinion that the Company was not carrying on business or in operation. Further, it is submitted that as per provision of section 248(5) of the Companies Act, 2013 after the expiry of the prescribed time period and as no response has been received from the company and the public, a notice (in STK No. 7) dated 24.08.18 was issued by the Registrar of Companies, West Bengal reflecting the name of the company as strike off w.e.f. 29.06.18. the petitioner company's name appears at Sl.No.4564 of the Registrar of Companies notice (STK-7) dated 24.08.18 and the same was published in the Official Gazette on 08.09.18. vi) It is submitted that the director of the company namely Amarandra Nath Mallick has been disqualified under section 164(2) of the Companies Act, 2013 for the period from 01.11.2017 to 31.10.2022 for non-filing of statutory returns with respect to another company namely M/s. Gainwell Vyapaar Pvt. Ltd. which has been struck off under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs. The company was incorporated on 19th January, 2012 and has filed Annual Return only for two years, one return for 3 months for financial year 2012-13 and next financial year i.e. 2013-14. 8. As per the financial statements of the company for the financial year 2014-15, it is noted that there has been no revenue from operations and there is only other income of ₹ 18,700/- as compared to ₹ 18000/- in financial year 201314. The investment in shares stands at ₹ 18,37,000/- which is the same as it was on 31st March 2014. The unsecured loans stands at ₹ 14,50,000/- being same as compared to the financial year 2013-14. In financial year 2015-16, other income of ₹ 18000/- has been shown with no income from operations. The figure of unsecured loans and investment in shares remain the same. In financial year 2017-18, the other income remains the same and investment and unsecured loans also remain the same. In financial year 2017-18, other income remains at ₹ 18000/- and unsecured loans and investments in shares remained at the same figure. From the perusal of page 184, it is noted that the investments in shares had been made in private l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impediment for removal of the name of the company and therefore, the same cannot become a ground for restoration of the company. 11. The Ld. Company Secretary appearing on behalf of the applicant has placed reliance on the decision of the Hon'ble NCLAT, New Delhi in case of Company Appeal (AT) No. 171 of 2018 (Arising out of Order dated 6th April, 2018 passed by National Company Law Tribunal, Kolkata Bench, Kolkata in Appeal No. 525/KB/2017), being order dated 24.01.2019 (Basant Kumar Berlia Anr. Vs. ROC, Kolkata Anr.). However, we find that the facts of the present case are altogether different because, in the case on hand, there is no dispute between the directors resulting into non-filing of annual returns as was the case in that petition. Further, in that case, the petitioner filed appeal under section 252(3) of the Companies Act, 2013, whereas in the present case, appeal has been filed under section 252(1) of the Companies Act, 2013. When an appeal is filed under section 252(1), the Tribunal has to arrive at the conclusion that the removal of name of the company from the Register of Companies was not justified in the absence of any grounds on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 248 of the Companies Act, 2013. Section 248 is analogous to section 560 of Companies Act, 1956. However, there are material departures from the provisions of section 560 of the erstwhile Act in the provisions of section 248 of the Companies Act, 2013. Under section 248(2), the company can file an application for removing the name of the company which was not there in section 560 of Companies Act, 1956. Further, in section 248, a right has been conferred with the Registrar to remove the name of the company if it was not carrying on business or operation for a period of two immediately preceding financial years and did not make any application within such period for obtaining the status of a dormant company under section 455, whereas provisions of section 560 covered the situations of non-carrying on business or operation without any time limit or being wound up, for striking off the name of the company from the register of companies only. In the new economic environment, with the growth of corporate culture, legislature has given impetus on timelines and compliance of the obligations within such timelines. (iii) The Registrar of Companies on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be classified as an inactive company - (i) a company which has not been carrying on any business or operation, or (ii) has not made any significant accounting transactions during last two financial years, or (iii) has not filed financial statements and annual returns during last two financial years. The Registrar of Companies, as per the provisions of section 455(4) can classify a company as a dormant company if such company has not filed financial statements or annual returns for two financial years consecutively. (vi) During the period when it remains a dormant company, its name is removed from the register of companies and is transferred to the register of dormant companies and such dormant company can do limited number of activities. The Registrar under section 455(6) can strike off the name of the dormant company which fails to comply with the requirements of section 455. Such dormant company, even though it may be complying the requirement of section 455, can be struck off if it remains a dormant company for a period of consecutive five years as per the proviso to rule 8(i) of Companies (Miscellaneous) Rules, 2014. (vii) When we take notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company from the register of companies. The company and/or its directors have also not responded to the notice issued by Registrar of Companies under section 248(1) of the Companies Act, 2013. There is also no valid ground for restoration of the name of the company for the reason that it caused great hardship to the directors of other companies as they have come to this situation because of their own inaction and non-compliance. Accordingly, this plea is also rejected. 13. Before parting, we would like to add that a lot of applications / appeals are filed under section 252(3) / 252(1) respectively for restoration of struck off companies, wherein it is stated that such companies came to know about the fact of striking off their names when they tried to upload the statutory returns after a gap of number of years, in spite of the fact that notices have been sent by ROC to the company and its directors in terms of section 248(1) of the Companies Act, 2013 read with relevant Rules. This is a quite strange phenomenon and cannot be justified in all cases. It is also to be noted that ROC has removed the name of the company after forming an opinion / belief that there existed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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