TMI Blog2023 (3) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... er ( Technical ) For the Appellant : Mr. Basa Mithun Shashank and Mr. M.V. Mukunda, Advocates. For the Respondent : Mr. Kamal Kant Jha, Sr. Panel Counsel Govt. of India with Mr. Avinash Singh, Advocate for RoC. JUDGMENT Justice Anant Bijay Singh ; The present Appeal under Section 421 of the Companies Act, 2013, has been filed by the Appellant being aggrieved and dissatisfied by the order dated 01.03.2021 passed by the National Company Law Tribunal (Cuttack Bench, Cuttack) in CP (Appeal) No. 255/CB/2020 whereby and whereunder appeal filed by the Appellant for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana was dismissed by the Tribunal. 2. The facts giving rise to this Appeal are as follows: i) The company, M/s. Smile Energy Private Limited, was incorporated under the Companies Act, 1956, on 24.11.2007. The main object of the company are to carrying in the business to generate, receive, produce, improve, by, sell, acquire, use, transit, accumulate, employ, distribute, develop, handle, protect, supply and to act as agent, broker, representative, consultant or otherwise to deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit V, Power House Square, Odisha, requesting allotment of law in order to do the needful in furtherance of the power project. v) In 2017, the Company, at its Annual General Meeting, approved of its Balance Sheets, as well as the Director's Report for the year 2016-17. The company reported a loss of Rs. 4,96,570/- for the Financial Year ending on 31.03.2017. Thereafter, on 08.01.2018, the company issued letter to the Chief General Manager, GIRDCO, requesting him to expedite the process of issuing a Power Purchase Agreement in order to complete the process by 30.01.2018, so as to meet the deadlines given by the Government of Odisha. The company applied for all the required sanctions, the Government of Odisha was unable to complete the acquisition of the land on which the project was to be completed. However, from time to time, the Company furnished Bank Guarantees required to execute the project. vi) In 2018, the company, at its Annual General Meeting, approved of its Balance Sheets, as well as the Director's Report for the year 2017-18. The company reported a loss of Rs. 26,699/- for the Financial Year ending on 31.03.2018. Further, the Company, at its Annual General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies to serve notices on all of the Directors of the company. This has not been complied with. This Tribunal has repeatedly held that when notices are not served on the Directors of the company which is sought to be struck off, the striking off must be set aside, held in the case of Calcutta Rubber Factory v. Registrar of Companies, (2019 SCC Online NCLAT 851) . The Company issued letters form 2007 till the date of striking off, in order to be able to conduct the business that the company was incorporated for. The mere lack of income or lack of profits cannot mean that the company is a shell company. The finding of the Tribunal is completely erroneous in this regard, as the company was conducting its business through issuing various letters to the relevant authorities in order to be able to begin construction and necessary activities on the Hydro Electric Project. 5. It is further submitted that the company and its shareholders are ready and willing to invest Crores of Rupees in the construction of the dam, which is important for the development of Nuapada District, and for the national development. The company will produce renewable electricity connected to the national g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act) and it was believed that the company was not carrying on any business or operation for a period of two immediately preceding financial years as the company has not made any application within such period for obtaining the status of a dormant company under Section 455, prior to its struck off. 8. It is further submitted that the Respondent issued Notice STK-1 i.e. a show cause notice under Section 248(1)(c) of the Act, to the Appellant company enquiring whether the said company was carrying on any business or was in operation, but no reply to the said show cause notice was received by the Respondent's office. Subsequently, the Respondent's office published in the Official Gazette and Newspaper for the information of the general public regarding striking off the name of the company in Form No. STK-5/5A. The said notice is issued as public notice not only to the company and the directors of the company but also to all stakeholders concerned so as to receive their objections, if any, to the said intention of the Registrar to remove the name of the company from the Register. Finally, after the expiry of the time mentioned in the said notice, the name of the company was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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