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TMI Blog2021 (6) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... rom time to time. However, due to some lack of knowledge of the Management of the Company and not having any professional guidance the Company could not file the Annual Accounts and Annual Returns for the Financial Year ended on 31.03.2017-31.03.2018 and 31.03.2019 in time. It is submitted that the Company has been active since incorporation and carrying on its business activities as per the Objects of the Company. 3. While so the ROC, Gujarat issued show cause notice in form STK-1 and form STK-5 respectively. The Director of the Company approached the ROC Gujarat for obtaining three months time for compliance of filing of the Annual Returns for the aforesaid three years. However, no reply has been received from the ROC. The Company filed Appeal/Application before the Hon'ble NCLT Ahmedabad Bench, Ahmedabad praying the Hon'ble NCLT to restore the name of the Company to the Register of Companies maintained by the Registrar of Companies Gujarat, allow the Petitioner (Appellant Company) to file all outstanding statutory documents i.e. the financial statements and Annual Returns for the year 2016-2017, 2017-2018 & 2018-2019 in completion of Annual filings. 4. The Learned Counsel subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or operations for a period of two immediate preceding financial years and has not made any Application within such period for obtaining the status of a dormant Company under Section 455 prior to its struck off. 11. The Learned Counsel submitted that the Office of the ROC had issued STK-1 notice on 17.07.2019 to the Company and its Directors informing the intention of ROC to strike off the name of the Company and requested to submit the cause contrary to the said action within 30 days. Further, the ROC published the name of the company on the website as per Rule 7 of the Companies (Removal of Name) Rules, maintained by the Ministry vide STK-5 notice dated 14.09.2019. The name of the Company was also published in Official Gazette and also public notice was issued in leading English newspaper (Indian Express) and widely circulated vernacular language newspaper (Divya Bhaskar- Gujarati) on 12.09.2019. 12. In absence of statutory filings for more than two years and in absence of any representation against the proposed strike off, the ROC Gujarat struck off the name of the company on 13.11.2019 and the dissolution order was passed on the website of the Ministry vide STK- 7 notice on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation is dismissed. No order as to the cost." (emphasis supplied) 17. I have perused the financial statements filed by the Company for the years 31.03.2017, 31.03.2018 and 31.03.2019 where from it is evident that the Company was carrying on its business and the revenue generated from operations indicates that the company is in operations. Further, from the record it is evident that the company is having tangible and intangible assets. Apart from the above the company is having employees working with the company as per the pleadings and the documents filed by the Appellant. There is no denial from the ROC that the company is neither in operations nor having any employees. The only objection of the ROC is that the Company is failed to file the statutory returns for continuous period of more than two years. It is not the case of the ROC that the company is a defunct company. 18. From the perusal of the notice in form STK -1 dated 17.07.2019 issued by ROC Gujarat, Wherein it is stated that the company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any Application within such period for obtaining the status ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Register of Companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the Register of Companies. Further, Sub-Section 3 of Section 252 states that "If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the Register of Companies, the tribunal on an application made by the company, member, creditor or workman before the expiry of 20 years from the date of publication in the official gazette of the notice under sub-section 5 of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company to be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal however, non-filing the Annual Returns and the financial statement as required under law inadvertently may not be a ground for removing the name of the company. In the present case, I am of the view that the company is in operational and as per Section 252 of the Companies Act the Learned NCLT ought to have restored the name of the Company to the Register of Companies. 27. In view of the aforesaid reasons the impugned order of the Learned NCLT dated 29.01.2020 is set aside with the following directions: Conclusion: (i) The Show cause notice issued in form STK-1 dated 17.07.2019, in form STK -5 dated 14.09.2019 and in form STK -7 dated 13.11.2019 any consequential order in respect of striking off the company are hereby set aside. (ii) The ROC is hereby directed to restore the name of the Company i.e. Hiraj Hospitality Pvt. Ltd. on the Register of Companies. (iii) The Company shall file all its financial statements, Annual Returns, Balance Sheet which the company was in default, with the ROC Gujarat. (iv) The ROC Gujarat is liberty to impose penalty and interest if any for the default in filing Annual Returns, Balance Sheet, Financial Accounts etc. in accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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