TMI Blog2019 (9) TMI 1530X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had complied with the statutory requirement under the said Act, before striking off the name of the Company. Where it is clear that the Company was in operation at the time of striking off and it continues to be in operation, even though the reason given for not filing the Annual Return and Balance Sheet for the said Financial Years, and due to lack of proof and strong opposition from the side of Respondent, the Application deserves to be allowed - Application allowed. - C.P. (Appeal) No. 1225/KB/2018 - - - Dated:- 6-9-2019 - Jinan K.R., Member (J) And Harish Chander Suri, Member (T) For the Appellant : Sonam Agarwal, Pr. C.S. and Shruti Singhania, Pr. C.S. ORDER Jinan K.R., Member (J) 1. This is an Appeal under Section 252(3) of the Companies Act, 2013 (the Act, hereinafter), filed by Sri Parmeshwar and Maa Durga Dwellers Private Limited represented by one of its member and director namely, Ms. Sushma Sinha, for restoration of the name of the Company in the Register of Companies maintained by the Respondent, Registrar of Companies(hereinafter, ROC), Bihar. 2. The case of Applicant is that: a) The said Company was incorporated on 24.04.2009 as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the MCA portal is not certain. As per the rules, the Registrar of Companies must publish the notice in Form STK-5 in the Official Gazette. The ROC must publish the notice in Form STK-5 in a leading newspaper of vernacular language. The ROC must place notice in Form STK 7 on the MCA portal and also publish the same in Official Gazette. The notice in Form STK-7 as available at the MCA portal is having contradictory dates. g) It is submitted that, in view of the above and in the given circumstances, no notice has ever been received by the Appellant or the other Director or the Company from the Respondent and the fact that annual filing upto 2016 were already upto date (except for the years 2012, 2013 and 2014), the decision of striking off the name of the Petitioner Company by the Respondent is completely unilateral, illegal, arbitrary, and devoid of merit and cannot be considered in any manner. 3. Notice of this Appeal has served on the Regional Director, Eastern Region, Registrar of Companies (ROC), Bihar and Income Tax Authority. Since the case involves serious allegations of legal irregularity in striking off of name of the Company, various notices were served upon ROC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the additional fee as per the provisions contained under section 403 of the Companies Act, 2013. Any penalty as deem fit by the Hon'ble Tribunal may also be imposed. 5. The Appellant Company has filed a Rejoinder to the said reply wherein it has, biter alia, denied and disputed each and every statement contained in the said reply and has reiterated the contents of its Appeal. 6. The Income Tax Authority in its reply submitted as follows: a) That the Petitioner Company is an assessee of the Income Tax of Income Tax and filing their return in ITR-6 for A.Y. 2010-11, 2015-16, 2016-17, 2017-18 2018-19. But not filed their return for A.Y. 2011-12, 2012-13, 2013-14 2014-15. b) That at present the PAN number of the Petitioner belongs to this office. c) That no proceeding is pending under the Income Tax Act, 1961 in the case of the Petitioner as per the record of this office. d) That no proceeding is pending at various appellate level in the Income Tax Department. e) That no demand is outstanding against the above assessee as per record of this office. 7. The Appellant has chosen not to file Rejoinder to the said Reply. 8. We have heard learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible for dealing in compliance matters of the Company, however, he did not disclose this fact to the Company and after two-three years he resigned and left the service, he did not reveal this fact to the directors of the Company is not tenable. 12. Though it has been submitted by the Respondent that it had issued notice under section 248 of the Act, however, it has not produced a copy of the notice claimed to be issued, proof of delivery of the notice, tracking report or any such document to support its contention. It is thus not established that the Respondent had complied with the statutory requirement under the said Act, before striking off the name of the Company. 13. Furthermore, it has been submitted by the ROC that it has no objection if the name of Appellant Company is restored in the Register of Companies provided the Appellant Company fulfills the legal requirements such as filing its due Annual Returns along with Balance Sheet as well as profit and loss accounts with the additional fee as per the provisions contained under section 403 of the Companies Act, 2013. 14. In the above peculiar nature and circumstance, where it is clear that the Company was in operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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