TMI Blog2020 (4) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 (1) (c) of the Companies Act, an exemption from a company not to be struck off can be granted only, when the company voluntarily applied to the Registrar, seeking to declare it as a Dormant company. If it makes an application under Section 248 (c), then the Registrar will have to follow the procedure under Section 455 of the Companies Act, 2013 - In the present case, the petitioner had not taken recourse to the provisions of Section 248 (c) of the Companies Act, 2013. Petition dismissed. - W.P.No.8050 of 2019 and WMP Nos.8649 and 8651 of 2019 - - - Dated:- 13-2-2020 - HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN J. For Petitioner: Mr. T.V. Suresh Kumar For Respondent: Dr. G. Babu, (for R1 and R2) Central Government Standing counsel O R D E R The writ petition has been filed in the nature of Certiorarified mandamus, calling for the records of the 2nd respondent namely the Registrar of Companies, Coimbatore, relating to the publication dated 07.07.2017 which was uploaded in the website of the 1st respondent namely the Ministry of Corporate Affairs, Union of India, New Delhi in so far as the petitioner company is concerned and set aside the same and consequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 248 (1) of the Companies Act. But the notice had been returned and thereafter it had been stated that the company had been struck off by the respondents. 5. An additional counter affidavit had also been filed by the respondents. In the said additional counter affidavit, it had been stated that this Court had earlier directed the respondents to clarify whether the provisions of Section 248 (6) of the Companies Act, 2013 were satisfied before passing an order under Section 248 (5) of the Companies Act,2013. In the additional Counter affidavit, it had also been stated that the company has been struck off due to non filing of the financial statements since it was incorporated during the year 2009 and therefore, the respondents were not in possession of any documents of the company indicating the status of the application for payment or discharge of its liabilities or obligations. It was also stated that the notice was returned as addressee not found and the notices issued to the Director were not returned to the office. But there was no response from the Director against the striking off of the name of the company. Since there was no undertaking received from the Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Section 455 (4) of the Companies Act which provides that in case of a company which has not filed financial statements or annual returns for two financial years consecutively, the Registrar shall issue a notice to that company and enter the name of such company in the Register maintained for dormant companies. It is stated that this procedure was not followed by the respondents in the present case. The learned counsel therefore stated that the order of the Registrar of Companies requires interference and has to be set aside. 9. The petitioner herein namely, the Swisscon Steels (India) Private Limited had been incorporated under the provisions of the Companies Act, 1956. It had been incorporated in the year 2009. Even in the affidavit filed, it had been very clearly stated that the manufacturing activities did not commence from the date of incorporation. It was also stated that the annual returns were not filed from the date of incorporation. It was also stated that no responsible staffs had been appointed for filing of annual returns. In fact, the company is only a company on paper. However, documents are filed relating to further facts. In proceeding Ref. No. ROC / CBE / ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company voluntarily applied to the Registrar, seeking to declare it as a Dormant company. If it makes an application under Section 248 (c), then the Registrar will have to follow the procedure under Section 455 of the Companies Act, 2013. 12. In the present case, the petitioner had not taken recourse to the provisions of Section 248 (c) of the Companies Act, 2013. Therefore, the judgment relied on by the learned counsel for the petitioner is not applicable to the facts of this case. 13. Further, the Judgment is a Judgment under Article 227 of the Constitution of India and unlike in the present case, the company was in existence in the registered office of the company. 14. But the fact of this case is that it was only in a shed. There are no business activities carried on by them. There is only one block holo shed in the property, which is laid to be the office of the company. The petitioner who claims that he had incorporated the company for doing business in manufacturing of Iron and steel products in the year 2009 cannot seek exemption for taxes, when the Registrar of Companies in compliance of the order of the Director of the 1st respondent Ministry of Corporate Affa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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