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TMI Blog2021 (8) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, Adyar, Chennai-600 020. 3. The main object of the Company, as per the Memorandum of Association, is to carry on the business of "to invest in, acquire, underwrite, shares, debentures, bonds, deposits, securities or other securities issued by any public body, etc". The details of the main object are set out in the Memorandum of Association which is filed along with the typed set of documents. 4. The Learned Counsel for the Applicant submitted that the Respondent had initiated proceedings against the Company under Section 248(1) of the Companies Act, 2013 without following the procedure laid down in law under Section 248(6) and without passing an order and by mere notification dissolved the Company for the presumptive reason of default in filing the Annual Returns for the preceding two financial years 2014-2015 and 2015-2016. In this regard it was submitted that as per the first proviso to Section 403(1) of the Companies Act, 2013, the Company is allowed to file the annual returns and financial statements with additional fee up to the triggering date i.e. 27.07.2017 and since there was no default, the action taken by the Respondent is a premature one. 5. The Learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company has not filed its Balance Sheet and the Annual Returns from the Financial Year 2006-2007 to till the year of strike off. It is stated in the Report that the Company has failed to follow the statutory compliance as provided under Section 92(4) of the Companies Act, 2013 and the procedural compliances as provided under Section 455 of the Companies Act, 2013, which gave a reason for the Respondent to believe that the Company was inoperative. 10. It is stated in the report that the strike off was done for the default in filing for the Financial Years 2014-2015 and 2015-2016 and the FY for 2015-2016 ends on 31.03.2018 and the strike off is done on 08.11.2017. In this context, it is stated that Section 403(1) of the Companies Act, 2013 (before 2017 amendment) allows defaulting Company to file the returns along with fee within 270 days, whereas in the instant case, a time period of 483 days was given to the Company for filing necessary returns. It is further stated in the report that the Respondent has issued notice to the Company as well as the Directors under Section 248(1) of the Companies Act, 2013 and that the non receipt of the notice by the Applicant would prove that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at the time of incorporation of a company and a declaration to this effect has not been filed within one hundred and eighty days of its incorporation under sub-section (1) of section 10A; or (e) the company is not carrying on any business or operations, as revealed after the physical verification carried out under sub-section (9) of section 12. (2) Without prejudice to the provisions of sub-section (1), a company may, after extinguishing all its liabilities, by a special resolution or consent of seventy-five per cent members in terms of paid-up share capital, file an application in the prescribed manner to the Registrar for removing the name of the company from the register of companies on all or any of the grounds specified in subsection (1) and the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner: Provided that in the case of a company regulated under a special Act, approval of the regulatory body constituted or established under that Act shall also be obtained and enclosed with the application. (3) Nothing in sub-section (2) shall apply to a company registered under section 8. (4) A notice issued under sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company from the Register of Companies on all or any of the grounds as specified in subsection (1) of Section 248 of the Companies Act, 2013. The power of the Registrar to strike of the name of the Company from the Register of Companies under both situations is contemplated under Section 248(5) of the Companies Act, 2013, wherein the Registrar after issuing notice under sub-section (1) or (2) of Section 248, is empowered to strike of the name of the Company from the Register of Companies under sub-section (5) of Section 248 of the Companies Act, 2013. In other words, for actions initiated under sub-section (1), by the Registrar himself and under sub-section (2), by the Company itself to strike of the name from the Register of Companies, the Registrar under sub-section (5) of Section 248 is empowered to strike off the name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. 15. It is also seen that Section 248(6) of the Companies Act, 2013 provides that the Registrar, before passing an order under sub-Section (5), shall satisfy himself that suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant. 18. Further, as to the plea that the Respondent has not resorted to section 455(4) of the Companies, 2013, however has proceeded to initiate action under Section 248 of the Companies Act, 2013, it is to be noted that the Companies Act, 2013 gives powers to the Registrar to initiate action against a Company in case they failed to file the Annual Returns and Balance Sheet for two Financial years consecutively both under Section 248 and 455 of the Companies Act, 2013. This Tribunal is not empowered to issue directions to the Respondent in respect of which section (either 248 or 455), the action should be contemplated against a defaulting company. So long as the action initiated by the Respondent is falling within the purview of the Companies Act, 2013, this Tribunal cannot be called into to question its legality. Further, the stance of the Applicant that the Respondent has not preferred to initiate action against the Company under Section 455(4) of the Companies Act, 2013 but rather under Section 248 of the Companies Act, 2013, would not vitiate the proceedings undertaken by the Respondents under Section 248 of the Companies Act, 2013. However on the other hand it is the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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