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TMI Blog2019 (4) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... f order under Section 248(5), have to satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for payment or discharge of its liabilities and obligations and, if necessary, to obtain undertaking from the appellant and the assets of the company will be made available for payment. By not responding to the ROC of its notice, the appellants shall not be relieved from the responsibility which they were bound to give in the shape of undertaking under this provision. Seeing the balance sheets and the company s huge investment which the company is having since 2011 and there are large amount of the loan and advances, it is possible that creditors could also be aggrieved persons, feeling aggrieved of company s name being struck off, may file an application for restoration of company s name, if its name is not restored. Thus it would be just and equitable to restore the name of the company to even avoid further legal proceedings. The name of Respondent No.2 company shall be restored to the Register of Companies - appeal disposed off. - Company Appeal (AT) No.171 of 2018 - - - Dated:- 24-1-2019 - Mr A.I.S. Cheema, Member (Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Dissolution, dated 30.6.2017 (Page 87) on the subject. 4. On coming to know, the original petitioners, 2nd, 3rd appellants and 2nd respondent herein, filed the company appeal/petition under Section 252(3) of Companies Act, 2013 before the NCLT, Kolkata praying that the name of the 2nd respondent be restored to the register of the Registrar of Companies and direct to modify the master data by modifying the status from Strike Off to Active . 5. 1st respondent filed their reply and stated that under Section 248 of the Companies Act, 2013 the Registrar can strike off the name of a company from his register after complying with certain formalities as provided in the said Section when he has reasonable cause to believe that the company is not carrying on business or in operation. 1st respondent further stated that the competent authority has struck off the name of the 2nd respondent under Section 248 since he had reasonable cause to believe that the 2nd respondent was not carrying in business or in operation for the last three years. 1st respondent stated that the 2nd respondent company filed its Balance Sheets and Annual Returns upto 2013 and thereafter did not file any Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant appeal. c) The name of the company namely M/s Horizon Ispat Company Private Limited be restored to the file and/or to the register of the Registrar of Companies, West Bengal. d) The respondent be directed to rectify the master data by modifying the status of the company namely M/s Horizon Ispat Company Private Limited from Strike Off to Active within the specific time as may be allowed by this Hon ble Tribunal. e) An order be passed directing the respondent to place the name of the company in the same position as if the name of the company namely, M/s Horizon Ispat Company Pvt Ltd had not been struck off. f) An order of injunction be passed restraining the respondent whether by itself or by servants, men or assigns from taking any steps or further steps in terms of the Gazettee of India notification dated June 30, 2017. g) Ad-interim orders in terms of prayers above; h) Cost of and/or incidental to this application be paid by the respondent; i) Such further or other order or orders as this Hon ble Tribunal may deem fit and proper. 8. The appellants have stated that the NCLT has caused injustice by passing the impugned order dated 6th April, 2018. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter did not file any Balance Sheet and Annual Returns under the Companies Act, 2013 before the ROC. 1st respondent further submitted that the Ministry of Corporate Affairs vide letter No.F.No.3.53/2017-CL II dated 17.02.2017 has observed that a large number of companies which have failed to file their Financial Statements or Annual Returns for the immediately two preceding financial years and have also not filed application under Section 455(1) of the Companies Act, 2013 for marking the company as Dormant and directed the ROC to take appropriate action for removal of names of such companies from ROC under Section 248 of the Companies Act, 2013. 2nd respondent was struck off after complying with the provision of Section 248 of the Companies Act, 2013. 17. 1st respondent submitted that as per Section 252 of the Companies Act, 2013 a struck off company can be restored only on the direction of the NCLT within a period of three years from the date of the order of the ROC. 1st respondent further submitted that in terms of the said provisions the Hon ble NCLT while passing an order of restoration is to be satisfied that the company is carrying on business or in operation. 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies. We have further perused the Income Tax Return Acknowledgement filed by the appellants for the Assessment year 2014-15, 2015-16 and 2016-17. We have noted, as per acknowledgement, that the Income Tax Returns have been filed on 30.3.2016, 31.3.2017 and 16.8.2017 respectively. These Income Tax Return for the year 2014-15 have been signed by Mr. Ashok Kumar Agarwal, Director and the Income Tax Returns for the years 2015-16 and 2016-17 have been signed by Mr. Basant Kumar Berlia, Director. We further noted that the Balance Sheets for years March, 2014, March 2015 and March, 2016 purport to have been signed by both directors and the Chartered Accountant on 27.8.2014, 27.9.2015 and 27.8.2016 respectively. These dates i.e. 30.3.2016 and 31.3.2017 for filing Income Tax Return for the FY 2014-15 and 2015-16 are prior to issuance of notice dated 7.4.2017. Similarly, the dates i.e. 27.8.2014, 27.9.2015 and 27.8.2016 on which dates the Balance Sheets purport to have been signed by both the directors and the Chartered Accountant are also prior to issuance of notice dated 7.4.2017. If these documents were then available there is no reason why Notice dated 7.4.2017 was not responded to. Agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the financial year ending on 31.3.2017 is zero. None of these documents satisfy us that the company is a going concern, or in operation. 27. We have gone through the argument of 1st respondent in which it is stated that as per Section 252 of Companies Act, 2013 a company can be restored only on the direction of Hon ble NCLT within a period of three years from the date of the order of the Registrar. We also noted that the appellants had filed Company petition before the NCLT under Section 252(3) of the Companies Act, 2013. Section 252(3) of the Companies Act, 2013 states as under: If a company, or any member or creditor or workmen 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give in the shape of undertaking under this provision. 29. Appellants have argued that the Hon ble NCLT has erred in law in dismissing the appeal filed by them under Section 252(3) of the Companies Act, 2013. Appellants have argued that they have the fixed assets since 2011 and they have filed the returns upto 31.3.2013. We have noted that the Balance Sheet as on 31.3.2013 has not been filed with the appeal but the same has been filed for the years 31.3.2014, 31.3.2015, 31.3.2016. We have perused the Balance Sheet as on 31st March, 2014 in which the figures of previous year i.e. 31.3.2013 have also been reflected. In this Balance Sheet the Fixed Assets (land) of ₹ 1,479,660.00 (Page 101) for the year as on 31.3.2014 and 31.3.2013 have been shown. Further the long terms loan and advances to the tune of ₹ 108,311,111.00 (Page101) for the years 2013 and 2014 have been shown. These advances have been paid to M/s Laxmi township Ltd and Bandana Developers Pvt Ltd (Page 105). We have also perused the copies of conveyance deeds filed by the appellants at Page No.226 to 300 and found that the conveyance deeds were executed in favour of 2nd respondent on 4.5.2011, 30.4.2011. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be just and equitable to restore the name of the company to even avoid further legal proceedings. 31. The ROC in its reply also mentioned that pursuant to Section 164(2)(a) read with Section 167(1) of the Companies Act, the directors of the company are disqualified and also directors of the 2nd respondent stand vacated from their directorship. We are noting that the issue is restoration of the company and not related to disqualification of the directors or otherwise. As this is not the matter of the appal, therefore, no opinion has been expressed by us over this matter as it is beyond the ambit of this appeal. 32. From the above discussions and observations we have come to the conclusion that in the light of huge investment made by the company and above reasons it would be just that the name of the company is directed to be restored. The following orders/directions are passed:- (i) Impugned order is quashed and set aside. The name of Respondent No.2 company shall be restored to the Register of Companies subject to the following compliances: (ii) Appellants shall pay costs of ₹ 1 lac to the Register of Companies within 30 days. (iii) Within 30 days of res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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