2019 (10) TMI 1446 - Tri - Companies Law

Winding up proceedings - allegation is that Company committed default in filing with the Registrar of Companies, West Bengal, its financial statements or annual returns for immediately preceding five or more consecutive financial years on and from 31st March, 2013 - Section 271 (d) of the Companies Act, 2013 - HELD THAT - Upon filing of this Petition, this Tribunal, had directed the Petitioner for publication of notice of the Petition in newspapers, calling upon objections from any interested person against the proposed order of winding up. In spite of due publication of notices of the Petitions, no one approached the Bench with any objection till date - Pursuant to the directions of this Tribunal, vide Order dated 10th June, 2019, the Petitioner has filed the affidavit of service affirmed on 31st August, 2019 evidencing newspaper publication of the notice of the Petition. The Company, Saradha Green Fields Nirman Private Limited, defaulted in filing the balance sheet and the Annual Return immediately preceding five or more consecutive financial years on and from 31st March, 2013. The Company also has not filed its Income Tax return after 31st March, 2012 and the Company is not functioning for more than five subsequent financial years. The Company also did not respond to the intimation of default sent by the Registrar of Companies - the the Companies were formed for fraudulent and unlawful purpose. The Promoters/directors of all the Companies appeared to be guilty of offences of fraud, misfeasance and misconduct relating to the affairs of the Companies. The Company, Saradha Green Fields Nirman Private Limited, is wound up under the provisions of Section 271(c)/(d) of the Companies Act, 2013 - application allowed.

Summary

Issues:
Initiation of winding up proceeding against a company due to default in filing financial statements and annual returns for consecutive years, fraudulent conduct, appointment of Official Liquidator, and costs of the petition.

Analysis:
The judgment involves a petition filed by the Registrar of Companies, West Bengal, seeking to initiate winding up proceedings against a company, Saradha Green Fields Nirman Private Limited, under Section 271 (d) of the Companies Act, 2013. The grounds for the petition include the company's default in filing financial statements and annual returns for five consecutive financial years starting from 31st March, 2013. Additionally, the company did not file its Income Tax return after 31st March, 2012, and has been non-functional for more than five subsequent financial years. The Deputy Registrar of Companies, West Bengal, highlighted that the company's affairs were conducted fraudulently, leading to the filing of the winding-up petition under Section 271(c)/(d) of the Companies Act, 2013.

The petition also mentioned that the company was duly notified of the fraudulent conduct and default through a show cause notice dated 2nd March, 2019, which the company failed to respond to. The Petitioner obtained the Central Government's sanction to proceed with the petition, as evidenced by the annexed documents. The Tribunal, after due consideration, directed the publication of a notice regarding the petition in newspapers to invite objections. Despite the publication, no objections were raised by any interested party, leading to the filing of an affidavit affirming the newspaper publication of the petition's notice.

The Tribunal analyzed Section 271 of the Companies Act, which outlines circumstances for winding up a company. It was observed that the company in question had continuously defaulted in filing its financial statements and annual returns, failed to respond to notices, and showed signs of being formed for fraudulent and unlawful purposes. Consequently, the Tribunal concluded that the company should be wound up under Section 271(c)/(d) of the Companies Act, 2013. The judgment ordered the winding up of Saradha Green Fields Nirman Private Limited, appointed the Official Liquidator from the High Court of Calcutta, restrained the company from disposing of its assets, and directed the costs of the petition to be paid from the company's assets. The Official Liquidator was instructed to submit a progress report within 180 days from the date of the order.

In conclusion, the Tribunal disposed of the Company Petition CP No. 481/KB/2019 and directed the issuance of a certified copy of the order upon compliance with formalities.