TMI Blog2023 (12) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... e compliances imposed - appeal allowed. - [Justice Anant Bijay Singh] Member (Judicial) And [Ajai Das Mehrotra] Member (Technical) For the Appellant: Mr. Saurabh Kalia and Mr. Sarvik Singhai, Advocates For the Respondent: Mr. Jaswinder Singh, Advocate for R-1 R-2 JUDGEMENT (Through Virtual Mode) [Per: Ajai Das Mehrotra, Member (T)] 1. The present Appeal has been filed under Section 421 of the Companies Act, 2013, (hereinafter referred to as the `Act ) against the Impugned Order dated 24.09.2021 passed by the NCLT (National Company Law Tribunal, New Delhi, Bench V,) in Appeal No. 03/252/ND/2021. Before the NCLT, the Appeal was filed by the Members and Shareholders for restoration of the name of the Company, Agerson Telecommunications Private Limited, in the Register maintained by the Registrar of Companies (`RoC ). The registered office of the Company is situated at 10/62, Kirti Nagar, Industrial Area, New Delhi 110015 and the CIN No. is U32101DL1988PTC032890. 2. The relevant facts of the case, as given in the NCLT Order dated 24.09.2021 are as under: 3. A sweeping action was initiated by the ROC, at the instance of MCA, in striki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Financial Years ending on 31.03.2015 to reflecting Revenue from Operations as NIL. iii. Copy of Lease Deed dt. 15.10.1988. iv. Copy of notices received from RIICO towards economic rent and service charges. 7. The Respondent RoC has filed their reply and submitted that there are no records of the Annual Returns and Balance Sheet submitted by the Appellant Company to the Respondent. Moreover, no subsequent documents had been filed by company to obtain the status of a Dormant Company under Section 560 of the Companies Act, 1956. Therefore, the name of the company was considered for striking off from Register of Companies. Further, it has been found in the enclosed Financial Statements that there was 'Zero' revenue from operations in all financial year, which fails to support the claim of the Company that it was carrying on any business. 8. That vide order dated 11.03.2021, the last opportunity was given to the IT Dept to file the report but till 11.08.2021, no report had been filed. Therefore, the right to file report was closed vide order dt. 11.08.2021. 9. We have heard the Ld. Counsel for the appellant and the AROC and perused the averment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the Company. It was submitted before the NCLT that the Applicants got aware of the Company after receipt of two Notices from the Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO), a Rajasthan Government Undertaking, for deposit of dues in respect of Plot No. G-576 in Industrial Area of Bewari, Bhiwadi, Rajasthan. It was submitted that the Appellant Company was in continuous business operations and holds Immovable Property, and that if the name of the Company is restored, they will be able to start the work. The Applicants before NCLT filed copies of provisional Financial Statements for the Year ending 31.03.2015 to 31.03.2020, copy of Lease Deed dated 15.10.1998 and copy of Notices received from RIICO. 4. While dismissing the Appeal of the Appellants herein, NCLT had observed that there was no revenue from operation in the immediately preceding two Financial Years. The NCLT relied upon the Judgement of this Tribunal in the case of `Alliance Commodities Private Limited Vs. `Office of Registrar of Companies-West Bengal , in Comp. App. (AT) No. 20 of 2019, and it was noted that the subject Judgement has been affirmed by the Hon ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited vs. Office of Registrar of Companies-WB Company appeal (AT) No 20 of 2019 That the Hon'ble NCLT has erred in placing its reliance on the judgment 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 and Hon'ble Supreme court in the matter of Alliance Commodities Private Limited vs. Office of Registrar of Companies-WB (CA no. 7258 of 2019). It is submitted that the facts of the aforesaid matter are completely different and the same ipso facto cannot be applied in the present appeal. The facts of the said judgment are summarized below for the sake of convenience: a. The appellant company was having NIL assets, liability and turnover. b. In the said matter, the appellant company was not engaged in the business for which it was incorporated but was advancing money to corporate persons in violation of Section 186 (1) of the Companies Act, 2013 as illegal transactions as a shell company. c. Indulging in business activity not falling within the ambit of object of the Company or not being incidental or ancillary thereto cannot be termed a legitimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company has not filed the financial statements and also without giving opportunity of hearing, the Respondent No. 1/Registrar of Companies struck off the name of the Appellant Company's from the Register maintained by him, but in view of the fact and also the Bank Statements of the Appellant Company from 2015 -2018 shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, we are of the view that the order passed by the National Company Law Tribunal (Court- V, New Delhi) as well as Registrar of Companies, NCT Delhi Haryana is not sustainable in law. In `Dashmesh Impex Pvt. Ltd. Ors. , cited supra, wherein it was held by this Tribunal that if the Appellant Company is having substantial movable as well as immovable assets, it cannot be said that the Appellant Company is not carrying on any business or operations. In para 5 of the Judgement, it has been held as follows: 5. After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the financial statements 2016-2017, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave considered the pleas now taken under Section 248(6) of the Companies Act, 2013. The appellants have now filed with this appeal the Balance Sheets for the years 2014, 2015 and 2016 which they could not file with ROC as the company name was struck off. Seeing the balance sheets and the company s huge investment which the company is having since 2011 and there are large amount of the loan and advances, it is possible that creditors could also be aggrieved persons, feeling aggrieved of company s name being struck off, may file an application for restoration of company s name, if its name is not restored. Thus, it would be just and equitable to restore the name of the company to even avoid further legal proceedings. 12. Learned Counsel representing the Office of the RoC, Delhi submitted that that Company was incorporated on 22.08.1988 and since launching of MCA-21 Portal in 2006, no records of the Annual Return Balance Sheet were submitted by the Appellant Company. Moreover, no subsequent documents had been filed by the Company to obtain the status of a `Dormant Company under section 455 of the Companies Act, 1956. Hence, RoC had reasonable cause to believe that the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi Haryana , is reproduced below for reference: 7. After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Audited Financial Balance Sheets of the Year 2015-16, 2016-17, 2017-18, 2018-19 2019- 20 of the Appellant /Company shows that the Appellant/Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant/Company is not carrying on any business or operations. Hence, we are of the view that the order passed by the National Company Law Tribunal (New Delhi, Bench-V) as well as Registrar of Companies, NCT Delhi Haryana is not sustainable in law. 17. The relevant portion of the Judgement of this Tribunal dated 06.12.2019, in the matter of `Calcutta Rubber Factory Pvt. Ltd. Ors. Vs. `Registrar of Companies, Delhi and Haryana , 2019 SCC OnLine NCLAT 851, is given below for ready reference: 11. The company is having a lease hold plot allotted by HUDA and the appellant company undertakes to file the returns and the financial statements after the period 2012-13. The company was carrying on business but was running into losses which accumulated to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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