9911796707
TMI Blog2024 (9) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 30.12.2020 under the Companies Act, 2013 bearing CIN: U93090UP2020PLC139887. The registered office of the company is at Narhera, Zahidpuri, Meerut, UP-250002. 3. The Company was incorporated to undertake and carry on as consultants, management consultants, and provide advice, services, consultancy in various fields, general administrative, secretarial, commercial, legal, economic, labour, industrial, public relations, scientific, technical, direct and indirect taxation and other levies, statistical, accountancy, quality control and data processing, cultivate, grow, produce, harvest raise or deal in agriculture produce as agriculturists, farmers or gardeners and to set up processing unit for import, export, distribute or deal in agriculture produce of all description, like fruits, vegetable, seeds and herbal products and trade in all the products required for cultivation, harvesting, production and developments of seeds, vegetable, fruits and herbal items, carry on the business of planters, growers and cultivators of seeds, vegetable, fruits and herbs and to cultivate, grow, produce or deal in vegetable, fruits and herbs and to undertake the activities for its processing, pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had opened its bank account on the same day when it submitted the reply to the Registrar of Companies' notice. All shareholders promptly deposited the subscription amount into the company's account. Later, Mr. Harish Pal, Director of the Appellant Company, discovered on December 1, 2022, through the Ministry of Corporate Affairs web portal, that the Appellant Company's name had been removed from the Register of Companies by the Registrar of Companies, Kanpur, under Section 248(1) of the Companies Act, 2013. 9. After inquiring into the matter, Mr. Harish Pal found that the Registrar had issued Public Notice No. 03/37/STK- 7/Striking off 248(1)(d)/2022/1995 on August 30, 2022, in Form STK-5, calling for objections to the proposed removal of the Appellant Company's name from the Register of Companies within 30 days from the notice's publication date. 10. The Appellant Company states that the company and its directors were unable to submit their representation in response to Public Notice No. 03/37/STK-7/Striking off 248(1)(d)/2022/1995 dated 30/08/2022 in Form STK-5, which invited objections to the proposed removal of the Appellant Company's name from the Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence spanning three financial years. However, statutory compliance under Section 10-A of the Companies Act, 2013, and Rule 23A of the Companies (Incorporation) Rules, 2014, particularly in Form INC 20A, was not fulfilled within 180 days of incorporation. The appeal lacks financial documents and directors' reports for the relevant assessment years, which are essential for assessing the company's financial position and future prospects. Despite no income tax returns filed since incorporation, no assessment or reassessment proceedings are ongoing against the company, nor are there any outstanding demands. Restoration of the company's name should be contingent upon strict compliance with statutory requirements under the Companies Act and the Income Tax Act, if deemed appropriate by this Tribunal 16. A counter affidavit was filed by the Appellant in response to the replies filed by ROC and Income Tax respectively. In its response to the ROC, the Appellant stated that it was incorporated on 30.12.2020 and was mandated to adhere to the provisions of Section 10A of the Companies Act, 2013, within 180 days of its incorporation, which would be until June 2021. However, the on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled as per Section 252 (3) depending upon the different circumstances as provided in the provisions of these two sub-sections of section 252. Therefore, we first examined whether an appeal filed under section 252(3) is maintainable or not. For a ready reference, both provisions of the Companies Act, 2013 are reproduced as under: - "..........252(1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies......... 252(3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ROC as per the provision of section 248(1) on violation of certain provisions of the Companies Act, provision for revival of the company is provided u/s 252(1) and when a Company is struck off u/s 248(2) on its application to ROC having discharged its liabilities and passing of special resolution by the shareholders, provision for revival of the company is provided u/s 252(3). 22. This matter was earlier considered by the NCLT, Ahmedabad Bench in Department of Income Tax, through the Income Tax Officer v/s Kalaniketan Syntex Pvt. Ltd. and another in Company Appeal No. 306/NCLT/AHM/2019 dated 20.01.2021 wherein, it is held as under: - "8. On perusal of the record, it is found that the appeal is filed under section 252(3) of the Companies Act, 2013. While, going through the section 252(3) of the Companies Act, it is found that the instant provision is made when the company is struck of voluntarily on the behest of the Promoter(s)/Director(s), whereas, section 252(1) of the Companies Act, provides that, when the company is struck of by the Registrar of Companies on the failure in filing of statutory returns by the Company. For the sake of brevity, both the provisions are produced h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory requirement, in that event, the application ought to be filed under section 252(1) of the Companies Act, 2013, however, the Appellant filed this application under section 252(3) of the Companies Act, 2013, which is applicable when the Company is struck off on the request of the Company by filing an application under section 248(2) of the Act. In that event, if a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of Section 248 but the Company is struck off on the instance of the ROC for non-compliance of statutory returns, then in that event, aggrieved person may file an appeal to the tribunal within a period of three years from the date of the action of the Registrar. 15. Even if it is assumed, there is misquoting of the section, which is not going to vitiate the case but then even in that case also this application cannot be allowed as this was struck off on the instance ROC from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor. It is also held by the High Courts and the Supreme Court in many decisions that quoting a wrong provision of law will not disentitle the party to the relief as held in case of Nanthagopal v. Union of India (Supra). Therefore, the instant application is considered by us as being filed under Section 252(1) of the Companies Act, 2013 as merely unintentional wrong mentioning of a provision should not be a ground to discard the matter. We also find that the present appeal has been filed within a period of three years from the date of the order of the ROC as per the limitation provided U/s 252(1) of the Companies Act and hence, the appeal filed in the present case has been found to be maintainable as per the provision of section 252(1) of the Companies Act, 2013. 27. After having held that the present appeal is considered by us as filed under section 252(1) of the Companies act, 2013, we have further considered the facts and circumstances and response from the concerned statutory authorities connected with the functioning of the companies as discussed in aforesaid paras, we find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
