2020 (12) TMI 196 - Tri - Companies Law

Restoration of name of company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT - ROC has filed its reply and stating that they have no objection if the name of company is restored in the Register of Companies, subject to appellant filing all its pending statutory documents with the Registrar of Companies till date along with the requisite late filing fee as prescribed under the Companies Act, 2013 - The Income Tax Department has not filed any reply. The grounds contemplated under Section 252 of Companies Act, 2013, are that the company was carrying on business or was in operation at the time of striking off its name or where it appears just to the Adjudicating Authority that the name of the company is to be restored to the Register of Companies and the Section 252(1) further contemplates that one of the above three conditions are required to be satisfied before exercising jurisdiction to restore the company to its original name on the register of the Registrar of Companies - The Appellant has submitted sufficient evidence that it has been in operation during the period preceding strike off, therefore it could not be termed as a defunct company as per Section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) of the Companies Act, 2013, which vests this Tribunal with a discretion where the Company, whose name has been struck off, and such Company is able to demonstrate that it is just to do so, can restore the name of the Company, in the Register and in the interest of all stakeholders, including the Appellant itself, who seeks restoration of the name of the Company in the register maintained by Registrar of Companies, the company deserve to be restored. Appeal allowed.

Summary

Issues:
1. Appeal against striking off the name of the company under Section 252(3) of the Companies Act, 2013.
2. Company's operations and compliance with filing requirements.
3. Evidence presented by the Appellant to demonstrate operational status.
4. Legal grounds for restoring the name of the company under Section 252 of the Act.

Analysis:

Issue 1: The appeal was filed against the order of striking off the company's name under Section 252(3) of the Companies Act, 2013. The company, incorporated as a Private Limited Company, challenged the order issued by the Registrar of Companies, NCT of Delhi and Haryana, citing non-filing of financial statements and annual returns for multiple financial years as the reason for striking off.

Issue 2: The Respondent, Registrar of Companies, based the striking off decision on the company's failure to file financial statements and annual returns for the years 2016-17, 2017-18, and 2018-19. This non-compliance led to the presumption that the company was not operational, thereby invoking Section 248 of the Companies Act, 2013 and relevant Rules for removal of names of companies from the register.

Issue 3: The Appellant presented various documents to prove the company's operational status during the period preceding the strike off. These included audited financial statements, bank statements, income tax returns, provident fund certificate, and GST returns. The evidence indicated business activities, financial transactions, and compliance with tax and regulatory requirements, contradicting the presumption of non-operation.

Issue 4: The Tribunal considered the legal grounds for restoring the company's name under Section 252 of the Companies Act, 2013. The Appellant successfully demonstrated that the company was operational and not defunct, meeting the conditions specified in Section 252(1) for restoration. Therefore, the Tribunal exercised its discretion to restore the company's name in the interest of stakeholders, ordering the name restoration subject to compliance with pending statutory filings and payment obligations.

In conclusion, the Tribunal allowed the appeal, declaring the striking off of the company's name as illegal and setting it aside. The restoration of the company's name to the Register of Companies was ordered upon fulfillment of filing requirements, payment of fees, and a contribution to the Prime Minister's Relief Fund. The decision emphasized compliance with statutory obligations and the company's right to restoration based on operational status and evidence presented.