TMI Blog2022 (4) TMI 1576X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 92 of the Companies Act, 2013 is that even a defunct company, like every other Company is under an obligation to file the Statutory Annual Returns till it is wound up or till such time, the Company is struck off by the Registrar u/s 248 of the Companies Act, 2013. As far as the present case is concerned, even though, the 1st Respondent/ Registrar of Companies has come out with the plea that the Company was incorporated on 25.08.1985 and the last Annual Return and Balance Sheet was submitted by the Company to its office, before it was considered to be struck off , relate to the Financial Year that ended on 31.03.2006 and later, no documents were filed by the Company to claim the status of a Dormant Company under Section 455 of the Companies Act, 2013, this Tribunal taking note of the fact that the Company has Assets and Liabilities and more so, keeping in mind that the right to seek restoration of the name of the Company (to be entered in the Register of Companies ) is not extinguished/lost as long as 20 years have not expired, and besides these, the 1st Respondent in its Reply before the Tribunal had mentioned that the Tribunal may kindly i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 252(ND)/2020 passed by the National Company Law Tribunal, New Delhi, Special Bench (Court-II). 2. The National Company Law Tribunal, New Delhi, Special Bench (CourtII) while passing the Impugned Order dated 31.12.2020 in Appeal No. 350/252(ND)/2020 (filed under Section 252 of the Companies Act, 2013) among other things at paragraph 5 to 14 had observed the following: 5. It is submitted by the Appellant Company that it was in operation since its incorporation. To corroborate its submission, the Appellant Company has placed the following documents on record a) Copy of Financial Statements for the Financial Years from 2016-17 to 2018-19. b) Copy of the lease agreement executed on 22.03.2002, between Rajasthan State Industrial Development and Investment Corporation (RIICO) Limited depicting a piece of land known as Plot No. Hp . c) Copy of the Income Tax Return for the year 2006-07. d) Copy of the Bank Statement issued by Allahabad Bank for the period from 13.08.2010 to 31.12.2019 6. That the Income Tax Department has filed its reply and submitted that as per there e-filling database of the Assessee, no ITR was e-filled by the Assessee against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Section 252(3) of the Companies Act, 2013, which, inter alia, includes that if a company is carrying out its business or in operation or otherwise it is just that the name of the company be restored, this Tribunal can order the ROC to restore the name of the company in the Register of Companies. 12. There is nothing placed on record pertaining to the period prior to 01.09.2017, which could prove beyond doubt that the company was in operation or was carrying out its business. The ROC in its report has also observed that the company was not carrying on any operations for a period of two immediately preceding financial years as indicated by non-filing of the financial statements of the Company for two or more years. 13. In the circumstances, it would be appropriate to refer to the Judgement of Hon'ble NCLAT in the matter of Alliance Commodities Private Limited Vs. Office of Registrar of Companies, West Bengal, Company Appeal (AT) No. 20 of 2019: 9. Section 252 (3) of the Companies Act, 2013 empowers the Tribunal to order restoration of a Company whose name has been struck off from the Register of Companies, if such company, any member or creditor or workman th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies, New Delhi and later proceeded in terms of Section 248 of the Companies Act, 2013 for striking off the Appellant / Company s name from the Registrar of Companies . The 1st Respondent/Registrar of Companies, through Notice dated 01.09.2017, had struck off the Appellant s name from the Register. 4. It is represented on behalf of the Appellant that the 1st Respondent/Registrar of Companies had not objected to the restoration of the Appellant /Company but prayed for a direction being issued to the Appellant /Company to file all pending written as mentioned by the 1st Respondent, in its Report-cum-Affidavit. 5. The 2nd Respondent/Income Tax Officer, Circle 1(1) Delhi, through its Status Report dated 10.11.2020 had not opposed the Restoration of the Appellant Company and that the Tribunal , through the Impugned Order dated 31.12.2020 had dismissed the Appeal filed by the Appellant . 6. The Learned Counsel for the Appellant / Company contends that the Company has substantial Assets and Liabilities which can be seen from its Financial Statements (Annual Statements filed for the year ending 31.03.2017, 31.03.2018 and 31.03.2019) and the substratum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that as soon as the Appellant / Company came to know about the non-filing of Statutory Returns , it immediately approach the National Company Law Tribunal to permit them to do the same. 12. The Learned Counsel for the Appellant points out that the 2nd Respondent in its Report dated 10.11.2020 had mentioned that there was no objection on its side, for the Restoration of the Appellant / Company and the relevant portion is as follows: Further, form e-filing database of the assessee, it is observed that no ITR was e-filed by assessee against the aforesaid allotted PAN. However, this Office has no objection to the revival of the company in RoC. 13. It is vehemently contended on behalf of the Appellant / Company that it has Assets and Liabilities and is continuously carrying on its business operations and is following its objects. The Appellant while filing the Appeal before the National Company Law Tribunal filed the Annual Statements of the Appellant / Company for the year ending 31.03.2017, 31.03.2018 and 31.03.2019. 14. Apart from that, it is the submission of the Learned Counsel for the Appellant / Company that none of the Shareho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 (Bom) the Hon ble High Court of Bombay had observed as under: The object of Section 560(6) of the Companies Act is to give a chance to the company, its members and creditors to revive the company which has been struck off by the Registrar of Companies, within period of 20 years, and give them on the business only after the company judge is satisfied that such restoration is necessary in the interest of justice. 18. In the matter of M.A. Panjwani v Registrar of Companies and Ors. (2015) 124 CLA 109 (Delhi) the Hon ble High Court of Delhi at paragraph 16 had observed the following: 16. It was submitted on behalf of the Registrar of Companies that in striking off the name of the Company, the procedure prescribed in Section 560 of the Aft was followed. That may be so, Sub-section 6 of Section 560 gives power to the company court to order restoration of the name of the company if it finds that such of course was just . The fact that the RoC did follow the due procedure prescribed by law while striking off the name cannot, therefore, be an answer to a petition filed on the ground that it would be just to restore the name of the company. 19. In the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel for the petitioner and having gone through the provisions contained in section 560(6) of the Act and the averments made in the petition I am of the view that it would be just and proper to order restoration of the name of the company in the Registrar of Companies. Accordingly, the petition is allowed. The respondent Registrar is directed to restore the name of the company in the Registrar of Companies, treating as if its name had never been struck off from the rolls of the register. The petitioner is directed to deliver the respondent Registrar of Companies a certified copy of this order within the time fixed under Rule 93 of the Rules. The Registrar thereafter shall proceed in the matter in accordance with the Act and the Rules. No order as to costs. 23. In the decision in Intec Corporation Private v the Registrar of Companies (2017) 201 Com Cas 18 (Delhi), the Hon ble High Court of Delhi had observed the following : As a matter of law, it cannot be said that where the company s name had been struck off on an application filed under Simplified Exit Scheme the company cannot be restored. In fact, the Madhya Pradesh High Court in VI Brij Fiscal Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the sides. Learned Counsel for the Appellant submitted that in the present matter there are documents to show that on complaint of workmen, authority had initiated action and the company was defending the same. It is stated that documents have been filed to show that the property tax was being paid. Reference is made to one Annexure A7 (page no. (62) to submit that in the Charges Registered there is a charge of Punjab Sind Bank on the property for the Company which is still alive in the records. Learned Counsel submitted that the Company paid property tax in 2011 which was after the date of striking off in 2007. According to the Appellant, it never knew that the name of the Company was struck off. It has been submitted that although the business got affected in 2002 because of multiplex, the company continued to remain in operation. It is claimed that this can be seen from the various documents which have now been filed in this appeal. 21. In course of argument, it has been noticed that the Company Petition filed in NCLT did not contain pleadings to spell out that the company was in operation. Pleadings to make out a case to the effect that it is just that the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary, Ministry of Corporate Affairs, (vide Comp. App. (AT) 239 of 2018) wherein at paragraphs 11 and 12 it is observed as under: Para 11. Looking to the disputes pending in the High Court, according to us, it would be appropriate to restore the name of the Company to the Registrar of Companies leaving all questions open for the Appellant and Respondents to dispute in the Writ Petition for final adjudication by the Hon ble High Court. Striking off the name of the Company would create difficulties for the Appellant to pursue its remedies before the High Court and in the facts of the matter, when litigation was pending the name of the Company should not have been struck off. Para 12. The particulars show that in spite of Notices the Company did not respond and we do not find fault with RoC when the name was struck off because the Appellant admittedly had not responded to the Notices. However, in the facts of the matter, we find it just under Section 252 (3) of the Companies Act, that the name of Company should be restored, but Appellant should bear costs payable to RoC. and in fact, a direction was given to restore the name of the Appellant company in the Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nienced by it, will not be a proper one, in the earnest opinion of this Appellate Tribunal . ENGLISH DECISIONS: 32. In Re Priceland Ltd. Waltham Foresh London Borough Council v Registrar of Companies and Ors. (1997) 1 BCLC 467, 476, 477 (Ch. D) (Companies Court) it is observed and held as under : ..In other words, the exercise of discretion only arises after the court has been satisfied that (a) the company was at the time of striking off carrying on business or in operation, or (b) otherwise that it is just that the company be restored. The first of these amounts to the court being satisfied that the registrars reasonable beliefs which were the basis for the original order striking the company off, were not in fact correct. The second means that, prima facie, the court has been persuaded that it is just to restore. In either case it seems to me that, absent special circumstances, restoration should follow. Exercising the discretion against restoration should be the exception, not the rule, (Page 476) Once the court has acquired jurisdiction on the basis that the new applicants interests make restoration just it would be harsh indeed to refuse the relief sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income Tax Act and had filed its Income Tax Returns , since incorporation and that the Company has assets and liabilities and is continuously carrying out its business operations by following its objects. Furthermore, the Financial Statements of the Company for the year ending 31.03.2017, 31.03.2018 and 31.03.2019 point out that the Company is a Going Concern and is continuously carrying out its Business Operations. 37. According to the Appellants the Company s Shareholders intend to run the Business and pay off the liabilities as per Balance Sheet of the Company . In fact, the struck off company at present, is having paid-up capital of Rs.4,99,000/- consisting of 49,900 Equity Shares of Rs.10/-each and all the Shareholders hold the total paid-up Share Capital of the Company and struck off company would suffer losses. The Appellants /100% shareholders of the Company had filed the Company Appeal No.350/252(ND)/2020 before the Tribunal seeking name of the Company be Restored , and such Restoration would shall be in the Company s interest, Shareholders interest and the Public Interest . If the name of the Company is Restored to the Register of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of an Operation of Law . 40. In short, the 1st Respondent in its Reply before the National company Law Tribunal, New Delhi Bench (Court II) came out with the prayer that if the Tribunal considers the Application for Restoring the Name of the Company in the Register of Companies , then the Tribunal may issue directions to the Appellant for filing all the pending documents of the Company with it within the time specified by the Tribunal . Also, on behalf of the 1st Respondent a relief of awarding of costs in favour of it was sought before the Tribunal , as the Company had failed to file its Statutory Returns before it. Preferring of an Appeal : 41. It is pointed out that Section 252(1) of the Companies Act, 2013 indicates that any person aggrieved by the Order of the Registrar, notifying a Company as dissolved undersection 248 is entitled to prefer an Appeal to the National Company Law Tribunal . Furthermore, if a Company or any Member or Creditor feels aggrieved, they would also be competent to file an Appeal against the Order of the Registrar of Companies before the expiry of 20 years from the date of Publication of Order in the Official G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the Management of the Company in not filing the Annual Returns and Financial Statements in time can be fastened with a levy of cause, to secure the Ends of Justice . Otherwise, it will cost irreparable hardship and Prejudice to the Company , as opined by this Tribunal . However, the converse view arrived at by the National Company Law Tribunal, New Delhi Special Bench (II) in the Impugned Order in Appeal No.350/252(ND)/2020 is an incorrect and unsustainable one in Law. Looking at from that perspective, the Appeal succeeds. Conclusion: 46. In fine, the Instant Company Appeal (AT) No.47 of 2021 is allowed. No costs. The Impugned Order dated 31.12.2020 in Company Appeal No.350/252(ND)/2020 passed by the National Company Law Tribunal, New Delhi Special Bench, Court II is set aside by this Appellate Tribunal for the reasons ascribed in this Appeal . The Notice of striking off and dissolution in the required Form No.STK-7 dated 21.08.2017 is set aside. It is abundantly made quite clear that the Restoration of the Name of the Appellant s Company is subject to its filing of all outstanding documents required by Law and completion of all S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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