2020 (11) TMI 247 - Tri - Companies Law

Restoration of name of company struck off by the Registrar of Companies - section 252 of the Companies Act, 2013 read with Rule 87A of the National Company Law Tribunal Rules, 2016 - HELD THAT - It is not in controversy that the Appellant Company has not filed its Annual Return and Balance Sheet with RoC. Moreover, the dispute regarding Nil turnover of the company is also taken into consideration, but failure on the part of the Appellant and its Directors to adhere to the statutory compliances and also Nil turnover of the Company is attributed to a variety of reasons including adverse market conditions, financial issues etc. The documents relied upon by the Appellant unmistakably demonstrate that the Appellant Company is a living entity. This Tribunal has examined the relevant provision applicable for restoration of the name of the company as provided in Section 252 of the Companies Act 2013 and as per the facts and circumstances of the case, it will be in the interest of the Company, its Shareholders and Creditors, the name of the Company be ordered to be restored by this Bench while exercising its jurisdiction U/s 252 of the Companies Act, 2013 read with Rules made thereunder - The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act 2013, which includes that, if it is just and equitable to restore the name of the company in the Registrar of Companies, it may direct the ROC to restore the name in its Register. The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would be neither just nor equitable. As per several decisions of various courts it should only be an exceptional circumstance that court should refuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight. The Registrar of Companies, the Respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the Company has not been struck off from the Registrar of Companies and take all consequential actions such as change of Company's status from 'Strike Off' to 'Active' (for e-filing), restoration of status of DIN etc. - Application allowed.

Summary

Issues: Restoration of Company Name

Detailed Analysis:

1. Background and Facts:
- The appeal was filed under Section 252 of the Companies Act, 2013 for the restoration of the name of a company struck off by the Registrar of Companies, Uttar Pradesh.
- The company was involved in coaching centers for civil services exams and faced strike-off due to default in statutory compliances.

2. Appellant's Submission:
- The appellant contended that the company was active since incorporation but failed to file financial statements and annual returns due to oversight and loss of documents.
- They emphasized compliance with income tax and presented evidence of substantial assets to justify restoration.

3. Respondent's Counter:
- The Registrar of Companies stated that due process was followed before striking off the company's name, and no response was received to show cause notices.
- Income tax authorities highlighted limited tax filings by the company in recent years.

4. Tribunal's Consideration:
- The Tribunal acknowledged the non-compliance by the appellant but noted reasons such as adverse market conditions for the lapse.
- It found the company to be a living entity based on submitted documents and considered the interests of shareholders and creditors in the restoration.

5. Legal Provisions and Decision:
- The Tribunal referred to Section 252 of the Companies Act, 2013, which allows restoration if just and equitable.
- It ruled in favor of restoration, directing the Registrar to restore the company's name, change status to 'Active,' and ensure compliance with statutory filings within 30 days.

6. Additional Directions:
- The appellant was instructed to pay a cost of ?50,000 for revival, publish the order in the Official Gazette, and issue a notice in a leading newspaper.
- The Registrar was tasked with verifying and approving the notice and publishing the restoration in the Official Gazette at the appellant's expense.

7. Conclusion:
- The appeal was disposed of with the decision to restore the company's name, subject to compliance with specified conditions and payment of costs, ensuring transparency and legal formalities in the restoration process.