2021 (7) TMI 875 - Tri - Companies Law

Restoration of name of Company in the Register of Companies - 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. The Company had not generated any revenue from its operations during the financial years 2010-11 to 2013-14 and 2016-17 to 2017-18, and in all these years it had incurred losses. However, the Financial Statements indicate that immediately before the Company was Struck Off it had generated revenues from operations during the financial year ended on March 31, 2015 and March 31, 2016. During the said two years it has also recorded profits - appellant has filed along with the application a copy of Income Tax return Acknowledgement for the Assessment Year 2019-20, which indicate Gross Total Income of ₹ 1,74,740/- and amount of ₹ 51,354/- paid as tax - also, Appellant has produced a copy of bank statement for the period 01.04.2019 to 31.03.2019 which indicate that the Company is maintaining Bank Account No. 510101005003376 with Corporation Bank. Thus, the Company is a going concern and was in operation when its name was struck off - The Registrar of Companies, the respondent herein, is ordered to restore the original status of the Appellant Company - application allowed.

Issues:
1. Application under Section 252(3) of the Companies Act, 2013 to revoke the order striking off the company's name.
2. Compliance with statutory filing requirements and restoration of the company's name in the Register of Companies.
3. Evidence presented by the appellant to support the claim of being a going concern.
4. Decision and directions of the National Company Law Tribunal, Cuttack Bench.

Analysis:

Issue 1: Application under Section 252(3) of the Companies Act, 2013
The case involved an application filed by one of the directors and shareholders of a struck-off company under Section 252(3) of the Companies Act, 2013, seeking the restoration of the company's name in the Register of Companies. The company, a Private Limited Company, was struck off by the Registrar of Companies, Odisha, due to defaults in statutory filing compliances, specifically for failing to file Financial Statements and Annual Returns for multiple years.

Issue 2: Compliance with statutory filing requirements and restoration
The appellant argued that the non-filing was due to management issues, although the company was operational. The Tribunal considered evidence presented, including Audited Annual Accounts, Company Master Data, Memorandum of Association, Articles of Association, Income Tax Return, and Bank Account Statement. The Registrar of Companies had initiated proceedings under Section 248 of the Companies Act, 2013, leading to the striking off of the company's name.

Issue 3: Evidence of the company being a going concern
The appellant provided financial statements showing that the company had not generated revenue during certain years but had recorded profits in others, indicating it was a going concern. Additionally, a bank statement and Income Tax Return Acknowledgement for a specific year were submitted to support the claim that the company was operational when its name was struck off.

Issue 4: Decision and directions of the Tribunal
After reviewing the submissions, facts, and documents, the Tribunal accepted the appellant's request and directed the Registrar of Companies, Odisha, to restore the company's name in the Register. Specific orders were given regarding the filing of pending statutory documents, payment of costs for revival, compliance with directions, and publication of the order in the Official Gazette. The restoration was subject to certain conditions and did not preclude further actions for any other violations committed by the company.

In conclusion, the Tribunal's decision in the matter of CP (Appeal) No. 140/CTB/2020 resulted in the restoration of the company's name in the Register of Companies, subject to compliance with specified requirements and payment of costs.

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