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TMI Blog2018 (12) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial year 2011 onwards and its directors ought to have filed statutory returns in compliance of provisions of the Companies Act. In the absence of any material being placed by appellant before the ROC, we fail to understand how ROC would know if the company is doing any business - gone through the record and gave our considerable thoughts on this issue. From the record we observe that the company was incorporated in the year 1991 and since then the company is filing its Balance Sheet and Annual Returns and they have not filed the same from financial year 2011 onwards. Therefore, it can not be believed that the non-filing of returns was a result of lack of legal awareness of the director. The company petition and company appeal has been filed by Mr. Maickavel Ravichandran, Director on behalf of the appellant company and he has stated that he is director and promoter of the company since 26th September, 2011. As perused the Articles of Association of the appellant and find that Sh M. Ravichandran was the director of the company (Page 37) in the year 1991. Similarly Mr. S. Sekar who is also now one of the directors was also a director in the year 1991. Therefore the plea of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers at favourable interest on jewels of gold and silver vessels or government promissory notes and of such other securities as may be approved by the Board of Directors. e) The company shall not do (i) Chit fund Business; (ii) Insurance Business (iii) Banking Business and Trafficking in shares and debentures and the company shall not operate a current account with the members. 3. The primary business of the company is to accept money from its members and in turn provide small ticket loans to its members not exceeding ₹ 15000/- per member/beneficiary. The members and the beneficiaries of the appellant are located in and around the area of Nagapattinam. The Respondent vide show cause dated 20.3.2017 (Page 200-201) issued notice to the appellant intimating that the available record of the company shows that the company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under Section 455. The Respondent further stated that the respondent intend to remove the name of the appellant from the register of companies and also seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not filed Balance Sheet, statutory returns and Annual Returns upto date. Respondent therefore, initiated action under Section 248 of the Companies Act for striking off the name of the appellant. The appellant company was duly served a notice and after following due process of law the appellant company name was struck off and was published in the Gazette of India dated 15th -21st July, 2017 in page No.14800 of Gazette of India under S.No.12077. 6. After hearing the parties the Learned NCLT passed the impugned order dated 13.4.2018. Relevant portion of the impugned order is as under: xxxx It has been stated in the objections that the applicant company was incorporated during the year 1991, and the Balance Sheets and Annual Returns were filed upto 2010. Thereafter, the same have not been filed due to which the name of the Company has been struck off from the Registrar of Companies dated 15-21st July, 2017. Heard the counsel for the applicant. Perused the application alongwith the record placed on file and the objections filed by the Counsel for the ROC. The Income Tax Returns were filed for the AYs 2016-17 and 2017-18 which reflect the payment of tax as nil , the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business. The appellant further submitted that the since the appellant company is struck off, all its assets and liabilities are locked. The appellant submitted that not restoring the company will also result in the assets and liabilities of the appellant going into a limbo and remain useless. 13. Reply/report on behalf of the Respondent has been filed. The respondent stated that the appellant has not filed Balance Sheet and Annual Returns for the financial year 2011 onwards. The Respondent has, therefore, initiated action under Section 248 of the Companies Act, 2013 for striking off the name of the company from the Register of Companies and consequently the name of the petitioner company was struck off from the Register of Companies. The respondent submitted that they had given Notice dated 20.3.2017 in Form No.STK 1 (Page 200) to the appellant that the appellant is not carrying on any business or operation for a period of two immediately preceding financials years and has not made any application within such period for obtaining the status of the dormant company under Section 455. The Respondent further stated that the appellant was given thirty days time to send his represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f provisions of the Companies Act. In the absence of any material being placed by appellant before the ROC, we fail to understand how ROC would know if the company is doing any business. 21 The other issue raised by the appellant is that the default in filing the returns was a result of lack of legal awareness of the directors of the appellant and the appellant did not act in any mala fide manner and non-filing of returns was only due to inadvertence. 22. We have gone through the record and gave our considerable thoughts on this issue. From the record we observe that the company was incorporated in the year 1991 and since then the company is filing its Balance Sheet and Annual Returns and they have not filed the same from financial year 2011 onwards. Therefore, it can not be believed that the non-filing of returns was a result of lack of legal awareness of the director. We further observe that the company petition and company appeal has been filed by Mr. Maickavel Ravichandran, Director on behalf of the appellant company and he has stated that he is director and promoter of the company since 26th September, 2011. We have also perused the Articles of Association of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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