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TMI Blog2019 (5) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... We have come to the conclusion that in the light of huge investment made by the directors/company and the appellant is continuously making efforts to set up the industry and also still depositing the instalments towards land, it would be just that the name of the company is directed to be restored. - appeal allowed. - COMPANY APPEAL(AT) NO.231 OF 2018 - - - Dated:- 8-4-2019 - A.I.S. Cheema Member (Judicial) and Mr. Balvinder Singh Member (Technical) For Appellant:-Mr.Goutham Shivshankar, Advocate For Respondents: - Mr. Gaurav Rohilla, Advocate. JUDGEMENT The present appeal has been filed by the appellant under Section 421 of the Companies Act, 2013 impugning the order dated 10th April, 2018 passed by the National Company Law Tribunal (NCLT), Bangalore Bench in CP No.40/BB/2018. 02. The brief facts of the case are that the appellant Company was incorporated on 5th August 2010 under the name and style of Insys Instruments Systems (India) Private Limited with the Registrar of Companies, Karnataka with its registered office at Bangalore-560080. 03. The main objects of the Company is to carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration of the name of the Company in the Register maintained by the Registrar of Companies, Karnataka, shall file all outstanding statutory documents i.e., the financial statements and annual returns upto date. 10. The Registrar of Companies, Karnataka, Bengaluru filed it reply before the NCLT Bangalore. 11. The Registrar of Companies, Karnataka, Bengaluru denied all the averments made in the petition except those which are specifically admitted herein and submitted his report as follows that: 12. It is submitted that on verification of the MCA 21 portal in the month of March 2017 when action under Section 248(1) of the Companies Act, 2013 was initiated against the eligible Companies, it was seen that the appellant Company has not filed either the Balance Sheet or the Annual Returns from the date of incorporation till 2015-16. Therefore, the Respondent had reasonable cause to believe that the appellant Company is not carrying on any business or operation and therefore a notice in Form STK-1 date 18.03.2017 was sent to the Company. Further, STK-1 notice dated 31.03.2017 was sent to all the Directors of the Company to the address available in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Register of Companies) Rules, 2016 after following the procedure as per the law, giving opportunity to the appellant Company to file its Statutory Returns and upon non-filing of Statutory Returns the name of the Company was struck off, vide has notice No. STK-7/ROC(B)/2017 dated 17.07.2017 19. After hearing the parties, the learned NCLT passed the impugned order dated 10.4.218. The relevant portion of the same is as follows:- After going through the Petition and various balance sheets provided for the years 2011-12, 2012-13, 2013-14, 2014-15, 2015-16, 2016-17 it reflects that, there is no revenue from operations. Similarly, in the balance sheet as at 31/03/2017 it reflects that, there are only 2(two) Current Assets i.e., Cash and Cash equivalents of ₹ 24,989/- and other Current Assets of ₹ 25,000/-. This other Current Assets of ₹ 25,000/- is also preliminary expenses (pre-operation expenses). The company has no revenue from operation. This reflects that, the company is not doing any business and they are in processing for allotment of land from KIADB, but the reasons known that, the matter is still under correspondence for ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant company is not carrying on any business, the appellant company should be considered to be fully operating and that the same is sufficient in view of Section 252(3) of the Companies Act to restore the appellant company. 25. The appellant submitted that if the appellant company is not restored, the shareholders of the company will be severely affected and therefore it is in the interest of the appellant company as well as its members to restore the name of the appellant company. 26. The appellant submitted that the ROC without providing any notice to the Appellant company and without affording it with an opportunity to explain wrongly struck off the name of the appellant company from the register of the ROC. 27. The appellant submitted that the Appellate Tribunal should consider these facts and restore the name of the company 28. Reply on behalf of the 1st respondent has been filed. 1st respondent. 1st respondent reiterated its facts what he has stated in the Company Petition that on verification of the MCA 21 portal in the month of March 2017 when action under Section 248(1) of the Companies Act, 2013 was initiated against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consideration the above observations and to pass such order as deems fit and proper in the circumstances of the case. 33. We have heard the learned counsel for the parties and perused the record. 34. Learned counsel for the appellant argued that the ROC without providing any notice to the Appellant company and without affording it with an opportunity to explain wrongly struck off the name of the appellant company from the register of the ROC. On the other hand the ROC argued that on verification of the MCA 21 portal in the month of March 2017 it was seen that the appellant Company has not filed either the Balance Sheet or the Annual Returns from the date of incorporation till 2015-16, therefore, a notice in Form STK-1 dated 18.03.2017 was sent to the Company. Learned counsel for Respondent further argued that notice dated 31.03.2017 was sent to all the Directors of the Company to the address available in the MCA 21 portal. Learned counsel for the respondent argued that in the said notice that was sent to the Company and to the Directors of the Company, it was interalia mentioned that the Company is not carrying on any business or operation for three imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat even though the appellant company is not carrying on any business, the appellant company should be considered to be fully operating and that the same is sufficient in view of Section 252(3) of the Companies Act, 2013 to restore the company. 37. On this issue, Learned counsel for the respondent argued that the Hon ble Appellate Tribunal may take decision as it may deem fit and proper. 38. We have heard the parties on this issue. We observe from the allotment letter dated 16.12.2016 (Page 104) that the appellant company was allotted 0.50 acres of land for setting up an industry for the manufacture of Aerospace Components on certain terms and conditions as mentioned therein. We further observe from para 3(a)(i) of the said letter dated 16.12.2016 (Page 105) that a sum of ₹ 50,00,005/- has been paid by the appellant towards 40% of the tentative premium of land and EMD. We have gone through the Balance Sheets for the March 2014 (Page 161) and March 2017 (Page 123) and find that there is no reflection of ₹ 5000005/- in these Balance Sheets. We have also gone through letter dated 21st November, 2016 (Page No.109) of the appellant addressed to KI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant has not been reflected in the Balance Sheets but as the appellant argued that the amount has been invested by the Directors, therefore, the same should have been reflected in the Balance Sheet. We expected that the Balance Sheets to be filed with the ROC are true and fair reflecting all transactions of the company. 42. From the above discussions and observations we have come to the conclusion that in the light of huge investment made by the directors/company and the appellant is continuously making efforts to set up the industry and also still depositing the instalments towards land, 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 appellant company shall be restored to the Register of Companies subject to the following compliances: ii) Appellants shall pay costs of ₹ 10000/- to the Register of Companies within 30 days. The minimum costs is being imposed seeing that the company is a Start Up company. iii) Within 30 days of restoration of the company s name in the register maintained ..... X X X X Extracts X X X X X X X X Extracts X X X X
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