9911796707
TMI Blog2017 (12) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... t company was not carrying on any business or operation for a period of two immediately preceding financial year. The appellant company cannot thus be regarded as a defunct company. The fact remains that there is no plausible explanation as to why it has not filed its annual returns and balance sheets before the ROC. There is thus a serious lapse on the part of the appellant company. In the facts and circumstances explained in the preceding paras we are of the view that the appellant company fulfils the requirement of Section 252(1) read with Section 252(3) of the Companies Act which overwhelming warrant its restoration. As a sequel to the above discussion this appeal is allowed. The appellant company is restored to its original name. - C.P. NO. 258(ND)/2017 - - - Dated:- 7-11-2017 - MR. M.M. KUMAR AND MS. DEEPA KRISHAN, JJ. For The Petitoner : Mr. Shobhan Mahanti, Advocate with Mr. Rakesh Kumar, Company Secretary For The Respondent : Mr. Manish Raj, learned Company Prosecutor JUDGMENT M.M. KUMAR, PRESIDENT The instant appeal has been preferred through its authorized representative Mr. Sunil Verma by MicroTech Infoserve Private Limited. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand of the appellant is that neither the company nor its directors could send any representation in response to the letter received or public notice published. They had in fact engaged Shri Yashpal Saini, Chartered Accountant as a Financial Advisor to take care of the compliances of the Company. The notice was also handed over to him and he was to prepare the representation. Shri Saini was however not able to attend to the aforesaid professional duty as he was admitted to Max Super Speciality Hospital on 26.04.2017. He came to know from the Master data of the appellant company on 14.08.2017 that the name of the appellant company has been struck off pursuant to Section 248 of the Companies Act. 5. The appellant company has claimed that at the time when its name was struck off it was carrying on business and its operation were in progress. It has 84 employees on its payroll as on 31.05.2017 and it has paid a salary of ₹ 6,86,179/- to its employees for the month of May, 2017, According to the appellant this fact alone proves beyond doubt that the appellant company has being carrying on its business at the time of striking off its name from the register of the Registrar of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport for the relevant financial years. 8. The turnover of the appellant company has increased almost five times in the financial year 2016-17 and it is expected to increase manifold in the future. Appellant company further submitted that it has entered into Memorandum of Understanding with Accel Frontline Limited and E-connect Solutions Private Limited in relation to tender floated by Dakshin Haryana Bijli Vitran Nigam, a Haryana Government Undertaking for engaging the services in the field of Customer Support Solutions as detailed in tender offer document number 22/2017 dated 10.04.2017 and tender offer document number 23/2017 dated 09.08.2017. 9. The appellant company has the following assets and liabilities as on 31.03.2017: Liabilities Amount (Rs.) Assets Amount (Rs.) Secured loan 37,86,323.93 Fixed assets 13,51,140.00 Unsecured loan 11,87,237.00 Deposits 3,79,421.75 Sundry creditors 68,03,479.00 Loans advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as published in newspapers, namely Hindustan Times (English) and Hindustan (Hindi) on 28.04.2017, in form STK-5A. (Copies of notices are annexed collectively as Annexure-II). v. Public notice STK-5 was published in the Official Gazette of India on 06.05.2017. (Copy annexed herewith as Annexure-III). 11. After completion of all formal steps the name of the appellant s company along with many others was struck off. 12. In the parawise reply it has been highlighted that the appellant s company did not file its annual return and balance sheet since financial year ended on 31.03.2013, The non-filing of statutory documents lead the Registrar of Companies to infer and believe that the appellant company was inactive and therefore, it was struck off w.e.f. 07.06.2017 after following the due procedure. The STK -7 was published on the website of the MCA on 30.06.2017 and in the official gazette on 08.07.2017. The Registrar of Companies has asserted that later on annual returns and balance sheet were filed in respect of three years which is evident from the following table: Annul return filing details Date of filing of Annual Return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication before the Tribunal seeking restoration of name of such company. (2) A copy of the order passed by the Tribunal shall be filed by the company with the Registrar within thirty days from the date of the order and on receipt of the order, the Registrar shall cause the name of the company to be restored in the register of companies and shall issue a fresh certificate of incorporation. (3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub - section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 to 31.03.2017 and 01.04.2017 to 30.06.2017. The fact remains that there is no plausible explanation as to why it has not filed its annual returns and balance sheets before the ROC. There is thus a serious lapse on the part of the appellant company. 18. In the facts and circumstances explained in the preceding paras we are of the view that the appellant company fulfils the requirement of Section 252(1) read with Section 252(3) of the Companies Act which overwhelming warrant its restoration. 19. As a sequel to the above discussion this appeal is allowed. The notification published in the Gazette of India dated 08.07.2017 and the order dated 30.06.2017 is hereby declared illegal insofar as the name of the appellant company shown as at entry No. 12408 bearing CIN No. U72900DL2004PTC124398 is set aside. The appellant company is restored to its original name. A copy of this order as per the provisions of Section 252 shall be filed by the appellant company with the Registrar of Companies within thirty days from the date of the order and the Registrar shall then restored the name of the company on the register of the companies and shall also issue a fresh certificate of incorpor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
