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TMI Blog2019 (2) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... on business, or, II. the Company at the time of striking off was in operation; or, III. Otherwise, that it is just that the company be restored to the Register. The Appellants want that the pleadings in the petition filed in NCLT with regard to the claims being made that the Company was in operation when it was struck off and that there exist just reasons to restore the name of the Company. We do not have the benefit of observations of the learned NCLT with regard to various documents which have now been filed in appeal as they were not before learned NCLT when the impugned order was passed. It would be appropriate that the matter is remitted back to the learned NCLT for re-hearing. Appeal is allowed - The impugned judgment and order is quashed and set aside. The original Petition is restored to file of National Company Law Tribunal, Delhi - The matter is remitted back to the learned NCLT for re-hearing. - Company Appeal (AT) No. 84 of 2018 - - - Dated:- 14-12-2018 - Mr A.I.S. Cheema, Member (Judicial) And Mr Balvinder Singh, Member (Technical) For The Appellants : Mr. N.P.S Chawla, Mr. Kaustubh Prakash, Mr. Sujoy Datta, Mr. Vinay Vaish, Mr. Mohit Das, Mr. Aaryan Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gularly complying with the provisions of the Old Act and has been filing requisite documents and that they have been holding Annual General Meetings regularly and its accounts are also being maintained and audited regularly till date. Paragraph-9 of the petition claimed that the Petitioner had been carrying in its building the business of running a cinema hall under the name and style of PALACE continuously without any interruption till 2002 . The Petitioner then claimed that due to onset of multiplex and change in market conditions the cinema was faced with dwindling demand and in view of major renovations required the business of cinema was in abeyance The pleadings in paragraph-9 of the petition further are During the period of abeyance, the Petitioner was unable to file/electronically upload the documentation as required by the Registrar from time to time owing to, being short-staffed and absence of professional help. However, the promotors/directors with a renewed vigor have now decided to restore the cinema to its old glory and are thereby requesting to restore the company s name in the Register of the Companies maintained by Registrar of Companies, NCT of Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of the Company and finally struck off the name of Company undersection 560(5) of the Old Act vide notification published in the Official Gazette of India dated 23rd June, 2017. 4. In paragraph-4 of the Reply, the ROC stated that in view of non-filing of statutory documents, the Company be put to strict proof of composition of Board of Directors; the state of operation of the business and viability of running the company and making necessary statutory compliance in future if company was to be revived. The ROC claimed that Company had failed to produce any statutory document as proof of it being in operation and carrying on business and put to proof. ROC stated that notices under Section 560 of the Old Act were not traceable as the records of ROC had been shifted to Indian Institute of Corporate Affairs Campus. ROC claimed that although the Petitioner claimed that because of being short staffed, the compliance could not be done but the Synopsis of the petition had claimed that part time employee/Accountant was there and that the stand was contrary. It also claimed that no Income tax returns were produced in support of the claim of being operational till date. 5. It ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no mention of any subsequent business being run after 2002 and this showed that the Company was not running any business on the date of striking off the Company by ROC on 23rd June, 2007 (date of gazette notification). Non-filing of Balance Sheet and Annual Returns since 1999 caused the ROC to believe that the Company was not carrying out any business; iv) The Petitioner-Company failed to produce any statutory documents as proof of being in operation and carrying on business; v) Copies of Income Tax Return have showed that Income Tax Returns were filed till 2004 and then have been filed for the year 2015 and 2016 and it shows that no Returns had been filed from 2005 till 2014; vi) NCLT referred to provisions of Section 560 of the Old Act and held that the Petitioner had not been able to show that on 23rd June, 2007, when it was struck off, it was in fact carrying on any business and were in operation of the business; vii) The Petitioner has not been able to show any evidence to prove that it even filed Income Tax Return from 2005 till 2014; viii) The Balance Sheets for years 1999-2000 to 2015-16 filed on 4th September, 2017 were not taken on record as they were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is claimed that there was Demand Notice dated 19.01.2007 from the Recovery Officer, Employees State Insurance Corporation for payment of ESI dues and the same were paid on 07.03.2007. Copy of the Bank Statement has been filed in this regard as Annexure-A6 to the Appeal. The documents as mentioned above have been referred by Appellant as evidence showing that even after 1999, the Company had been in operation. The Appellant claimed that it continued to be in operation. According to the Appellant, Annexure-A7 is copy of Index of charges relating to the Appellant No. 1 which shows that on the assets of the Appellant, active charge was there of Punjab Sindh Bank since 1973 which continues to be shown as open in the master data of the company. It is claimed by Appellant that as active charge was there, the Company could not have been struck off. 10. The Appellant has further claimed, referring to documents at Annexure-A8 that the Appellant was unaware of the company being struck off and continued to pay property tax and water tax to the Municipal Corporation and Delhi Jal Board in 2009, 2010 and subsequently also. One of the grounds raised in the appeal is that learned NCLT sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant after the impugned order was passed by NCLT. 14. In appeal, ROC filed affidavit (vide diary No. 5851) reiterating the stand it had taken in the NCLT and while supporting the decision of the NCLT in the impugned order, left the matter to the Tribunal to pass appropriate orders on merits. Vide order dated 27th August, 2018, we directed ROC to file detailed affidavit and show copies of documents with regard to compliance as required under Section 560(1)(2) (3) of the Old Act. ROC filed another affidavit vide diary no. 7129 repeating earlier claims made and claimed in paragraph-7 of the Reply Affidavit that the notices under Section 560 of the Old Act were not readily traceable as the records of ROC had been shifted to Indian Institute of Corporate Affairs. It was claimed that efforts have been made to search for the records but the same being quite old, could not be traced out. It however relied on the Gazette Notification dated 23rd June, 2017 under Section 560(5) of the Old Act. Subsequently, Deputy ROC along with learned Counsel for ROC appeared and claimed that they were making efforts to search for the records and the same were yet to be traced out. 15. We have th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was carrying business or was in operation. For this purpose, the documents subsequent to the date of striking off the name of the Company would not be material for consideration of the first two aspects as mentioned above although those documents may be relevant for considering the question whether it would be just that the name of the Company should be restored. 19. As far as records, the claim that the Company was in operation, there were no such pleadings in the Company Petition that although the Company was not in business since 2002, it continued to be in operation even thereafter till the name of the Company was struck off. The additional documents now being relied on were not filed before NCLT and there were no pleadings on this count also. 20. We have heard Counsels for both the sides. Learned Counsel for the Appellant submitted that in the present matter there are documents to show that on complaint of workmen, authority had initiated action and the company was defending the same. It is stated that documents have been filed to show that the property tax was being paid. Reference is made to one Annexure- A7 (page no. 162) to submit that in the Charges Registered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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