2021 (1) TMI 347 - Tri - Companies Law

Restoration of name of Respondent company in the ROC - Section 252 (3) of the Companies Act, 2013 - HELD THAT - Section 252 (3) of the Companies Act, 2013 confers on this Tribunal powers to Order to restore the name of the Company in the Register maintained, provided such application is filed by (i) the Company or (ii) by any Member or (iii) any creditor or (iv) any workmen of the Company within 20 years from the date of publication of the notices under Section 248 (5) in Official Gazette about striking off name of such Company provided further that it is seen from the material on record that at the time its name being struck off, the Company was doing its business or carrying its operations - In this case, the applicant produced on record the copy of Audited Annual Accounts for all defaulting years. As per the audited reports of the Profit and Loss accounts of the Company, it is evident that the Company has not been generating any revenue from its operations and has incurred losses in all the defaulting years. Financial Statements do not suggest any business transactions for which the Company was incorporated. There is no material consumed, or work in progress or debtors or Finance cost. There are no expenses in respect of the Employee benefits, which indicate that the Company had nobody in its employment during the defaulting years - The Appellant has not submitted the details of Bank Account or GST Certificate, Rent Agreement, any document in relation to existence of its registered office nor any Income Tax Return or any sale and purchase invoices details, which support his contention that the company was a running entity when the name of the company was struck off. This prima facie suggests that the Company was not doing any business activities. Application dismissed.

Summary

Issues:
Application under Section 252(3) of the Companies Act, 2013 to revoke the order striking off the company's name.

Analysis:
1. The company, a Private Limited Company, was incorporated with specific objectives, managed by two directors to carry out business activities related to land development, construction, and contracting.
2. The appellant, a director and shareholder, filed an application under Section 252(3) of the Companies Act, 2013, seeking to revoke the order of striking off the company's name by the Registrar of Companies, Odisha.
3. The Registrar of Companies struck off the company's name under Section 248(5) of the Companies Act, 2013, due to non-filing of statutory returns and lack of business operations, leading to the dissolution of the company.
4. The appellant presented evidence, including incorporation certificate, audited annual accounts, and PAN of the company, to support the claim that the company was a going concern carrying out business activities.
5. The Registrar of Companies, Odisha, defended the striking off stating non-filing of statutory returns and lack of response to show cause notice, leading to the publication of the strike-off notice in the Official Gazette.
6. The Tribunal examined the audited annual accounts provided by the appellant, showing no revenue generation, consistent losses, and lack of business transactions or employees during the defaulting years.
7. Lack of supporting documents such as bank account details, GST certificate, rent agreement, income tax returns, or sales invoices indicated the company was not actively engaged in business activities during the default period.
8. The Tribunal, considering the facts and evidence on record, dismissed the application under Section 252(3) of the Companies Act, 2013, leading to the appeal being dismissed accordingly.
9. The Tribunal directed the provision of a free copy of the order to the appellant, sent a copy to the Registrar of Companies, Odisha, and instructed the issuance of an urgent certified copy upon formalities' compliance.