TMI Blog2023 (4) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise it was just that the company may be restored. Considering the fact that the company was having two directors with 50% shareholding which has not been disputed and one of the director who is Respondent No.3 has come forward with a stand that the company in question was not either doing business or operating, in such situation there is no reason in passing an order for restoring the appellant company. Another reason for not interfering with the impugned order is that out of two directors one director has taken a stand that the company is completely inoperative doing no business whereas the appellant who is also a director is taking the plea on the strength of balance sheet prepared by the CA that too without approval of the Board of Directors that company was in operation. If for the time being any direction is issued for restoration, certainly it will amount to generating further dispute/litigation. The appellant was not in a position to satisfy the NCLT that the company in question was doing business or was operational during the period for which the name of the company was struck off - Appeal dismissed. - COMPANY APPEAL ( AT ) No. 115 of 2021 - - - Dated:- 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to carry on the business of web applications, information technology, software development, computer hardware, web sites development and all types of software and information technology related activities including Business Process Outsourcing. Knowledge Process Outsourcing, process automation, graphic designing, multimedia presentations and web hosting services whether in India or in abroad. To assemble, market, buy, sell, import, export to act as agents, or otherwise deal in computers, computer system, software, computer goods and components, computer hardware, computer peripherals and accessories, whether in India or in abroad. 5. In the company there were two directors namely the appellant namely Mr Tarik Klair, who as a director has preferred the present appeal on behalf of M/s Opax Web Private Limited and another was Mr. Manpreet Singh Sachdeva, who has been arrayed as Respondent No.3 in the present appeal. After incorporation of the company, the company filed its financial statement till financial year 31.03.2015 and thereafter no statement was filed. The Registrar of Companies who is Respondent No.1 after noticing that continuously for last two financial years no fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Limited (hereinafter referred as the Company ), when there were cogent reasons justifying its restoration (Refer from para no. 9.1 at page no. 31 to para no. 9.9 at page no. 33 of the appeal) That the impugned order is against the provisions of Section 252(3) of the Companies Act, 2013 as the Ld. Tribunal erred in dismissing the CP No. 49/Chd/Hry/2020 and held that the company was not in operation prior to the date of striking off its name , whereas the provisions of section 252(3) provides.....if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or . . Even the Ld. Tribunal escaped to consider the financial statements of the Company for the financial years 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19 (verified from bank statements and certified by the Statutory Auditor), ITR for the financial year 2018-19 and after 31.03.2019 copy of Bank Statements of the company on records. Even the turnover achieved by the company vide para x) at page no. 23 of the appeal, covering the period prior, on and after the date when the name of the company was struck off, which was not denied by the respondent no. 3 has not been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efusal to restore the name of Opax Web Private Limited which undoubtedly would have a deleterious effect on the very existence of the Company in as much as the Appellant would no more be able to defend the business of the Company grabbed by respondent no. 3 and would get dismissed into oblivion thereby sounding a death-knell to the very existence of the Company as the company is neither a shell company nor any illegal transaction has taken place in the company. 5. That the Ld. Tribunal escaped to notice that the issues raised by respondent no. 3 while objecting to restore the name Opax Web Private Limited undoubtedly are outside the ambit of Section 252(3) of the Companies Act, 2013, as the respondent no. 3 submitted that due to his matrimonial disputes, he is not associated with the company since 2017 (refer para 2(vi) at page no. 186 of the appeal) and the balance sheets for the financial years 2015-16, 2016-17, 2017-18 and 2018-19 covering the period from 01.04.2015 to 31.03.2019 (verified from the bank statements and certified by the Statutory Auditor of the company) attached with the application can't be treated as audited ones (refer para 2(111) which starts from pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31.12.2020. (refer para no 2 (1) starts from page no. 183 of the appeal). 7. That the Ld. Tribunal missed to appreciate that respondent no. 1 Registrar of Companies and respondent no. 2 Income Tax Department have not raised any grounds of objections, whatsoever for allowing the application for revival of the Company Le. M/s Opax Web Private Limited. 8.Concealment of material Facts by the Respondent no. 3: no. 3 has concealed about i) transfer of business of Opax Web Private Limited to his firm namely ProHosterz IT Solutions ii). Respondent no. 3 has not submitted declaration that he has disclosed his share of ownership of/income from the Company in his personal disputes as the respondent no. 3 who managed to maintain distance from the company since 2017 so his wife with whom respondent no. 3 had matrimonial disputes should not be able to claim financial assistance. 9.Misleading/contradictory statements made by the Respondent no. 3: Vide para 2(vi) at Page no. 186 of the appeal (reply to Ld. Tribunal by respondent no. 3), the Respondent no. 3 has stated that respondent no. 3 is not associated with the Company since 2017 as he was having serious matrimonial dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... off by the respondent no. 1. 8. Taking clue from aforesaid written submission it has been argued the reliefs sought for in the present appeal is needed to be granted in favour of the appellant and judgement impugned may be set aside. 9. In this case Mr. Yogesh Putney, learned Sr. Standing Counsel has appeared on behalf of Respondent No.2/Income Tax Department. He supporting the impugned judgement submitted that there is no error in the impugned judgement. 10. Mr. Anil Kumar Agarwal, learned counsel has appeared on behalf of Respondent No.3 who is none else but 50% shareholder of the company in question. Mr. Agarwal, learned counsel for the Respondent submits that in the company in question there were only two directors i.e. one was appellant Mr. Tarik Klair and another is Respondent No.3 Mr. Manpreet Singh Sachdeva. Both the directors were having 50% shareholding in the company in question. He submitted that after submission of last statement before the ROC which was for the financial year 2014-15 the company remained completely inoperative. Thereafter dispute arose in between appellant No.1 and Respondent No.3. He further made an allegation that the appellant creating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 have been placed on record. The Bank Statement for the period 12.03.2019 to 26.02.2020 which has been placed on record Please refer to page nos. 153 -157 of the appeal) is not relevant because it pertains to the period subsequent to the date of striking off the name of the company. d. No 'IT Returns' have been filed by the company for the Assessment Years 2014-15, 2016-17, 2017-18 and 2018-19 (Please refer to reply of Income Tax Department dated 15.09.2020 at page no. 177 of the appeal). The IT Return for the Assessment Year 2019-20 filed by the appellant unilaterally on 06.12.2019 is not relevant because it has been filed after the date of striking off the name of the company. Moreover, as per the IT return for the assessment year 2019-20, gross total income of the company is only Rs.2906/- (Please refer to page no. 159-160 of the appeal). e. No 'GST No.' was obtained by the company though Good Service Tax Act (GST) was implemented w.e.f. 1st July, 2017. This shows that the company was not in operation or carrying on business at the relevant time. f. Employment Agreements executed on 09.11.2019 with Mr. Rahul Kumar, Mr. Saleeq Mohammed are irrel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the company. 3.Otherwise also it is not 'just' to restore the name of the company The appellant and respondent no. 3 are the only two shareholders and directors of the company. The appellant and respondent no. 3 hold 50%:50% shares in the company. The present appeal has been filed without the consent of respondent no. 3. There are serious disputes and differences between the appellant and respondent No. 3 and there is complete stalemate in the company due to which Board Meetings and Shareholders Meetings could not be held since 2016. In such a situation no useful purpose will be served by restoring the name of the company. Therefore it will not be otherwise just to restore the name of the company. In a recent case of Tata Consultancy Services Ltd. Vs. Cyrus Investments P. Ltd. and Others [20211 227 Comp Cas 1 (SC), the Hon'ble Supreme Court has cited the following judgment in Para 16.49 which is reproduced herebelow:- 16.49 In Lau v. Chu, the House of Lords indicated, that a just and equitable winding up may be ordered where the company's members have fallen out in two related but distinct situations, which may or may not overlap . The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conscious decision of a company itself. The company has to make an application under Rule 3 of the Companies (Miscellaneous) Rules, 2014 in prescribed Form MSC-1 along with prescribed fees after passing a special resolution to this effect in the general meeting of the company. The dormant status is granted only if the company fulfils the eligibility conditions prescribed under the proviso to Rule 3 of the Companies (Miscellaneous) Rules, 2014. The Registrar of Companies in para 5 of his reply before Ld. NCLT, Chandigarh (page 170 of the appeal) has stated that Moreover, no subsequent documents had been filed by the company with this office to obtain the status of a Dormant Company under section 455 of the Companies Act, 2013. 6.No Objection' of ROC or Income Tax Department is irrelevant The appellant's plea that the ROC and Income Tax Department have not raised any objection to the restoration of name of the company is unsustainable. In the matter of Nu Age Resources Placements (P) Ltd. Vs. Registrar of Companies, [2019] 213 CC 313 (NCLAT-Dell this Hon'ble Appellate Tribunal has held that When the National Company Law Tribunal is moved, objection o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heer Farm Fresh Private Limited and Another [2020] 223 CC 583 (NCLAT-Del), this Hon'ble Appellate Tribunal have held that One cannot brush aside a primordial fact that there is no provision under the Companies Act, 2013 which permits the appellant to file the documents sought to be registered/filed under the Companies Act without payment of the requisite filing fee and/or payment of additional fee. To put it cock surely, there is no express/enabling for walver of fees/penalty under the Companies Act. 9. Plea of grabing of business by Respondent No.3 is false and fabricated The appellant plea that respondent No.3 is grabing the business of the firm to his firm namely ProHosterz IT Solutions is totally false and fabricated. No such pleading was made in appeal filed before Ld. NCLT Chandigarh. Further, no such pleading was taken in the appeal filed before this Hon'ble Tribunal. Such pleading taken for the first time in written submissions is not permissible at this stage. Moreover such a plea is not relevant for restoration of name of the company. It is submitted that respondent No.3 is not doing any business in the name of ProHosterz IT Solutions. 10. The App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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