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TMI Blog2019 (7) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... is shown to have been engaged in granting short term loans and advances to its sister concern which was not the intended object of the Company. Indulging in business activity not falling within the ambit of object of the Company or not being incidental or ancillary thereto cannot be termed a legitimate business for demonstrating that the Company was in operation. The finding recorded by the Tribunal and the conclusions deducible from the material on record do not warrant interference as no contrary view is possible - A Shell Company or a Company having assets but advancing loans to sister concerns or corporate persons for siphoning of the funds, evading tax or indulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression or otherwise which would be a travesty of justice besides defeating the very object of the Company. Such course would neither be just nor warranted. The Appellant has failed to make out a just ground warranting interference with the impugned order which is neither shown to be legally infirm nor are the findings recorded therein shown to be erroneous, much less perverse - appeal dismissed - decided aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant Company was unintentional. It sought restoration of its name on the aforesaid ground. The Registrar of Companies contested the appeal on the ground that the Appellant Company failed to file its Annual Returns and Financial Statements for more than two consecutive years and it did not pray for obtaining the status of a Dormant Company . The Appellant Company was accordingly struck off after complying with the mandate of Section 248 of the Act as there were reasonable grounds to believe that the Appellant Company was not carrying on any business or was not in operation for a period of two immediately preceding financial years. The Tribunal found that the Appellant Company had not filed its statutory returns and balance sheets since 2014. It is contended that the ROC has issued notice under Section 248(1) of the Act r/w Rule 7 of the Companies (Removal of names of companies from the Register of Companies) Rules, 2016 in the prescribed form for removal of the name of the Company from the Register of the Companies. The petitioner Company s name is appearing at S. No. 272 of the Register of Companies notice (STK 7) dated 30.06.2017 which was published in the official gazette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant Company is eligible to be restored even under the Condonation of Delay Scheme 2018 (CODS) as the Appellant Company applied for its restoration much before closure of CODS. It is further submitted that the Director s DIN should be activated for doing business in other Companies and LLPs where they have ceased to be Directors due to deactivation of Director s DIN. Lastly it is submitted that the restoration of the Appellant Company can be ordered under Section 252 on the ground that it is just to restore the Company to the Register of Companies. 5. Per contra, it is contended on behalf of ROC that notice contemplated under Section 248(1) of the Act r/w the Rule 3 of the Companies (Removal of names of companies from the Register of Companies) Rules, 2016, the notice dated 22.03.2017 was issued on 06.04.2017 by Speed Post to the Appellant Company and its Directors, copies whereof form Annexure (ii) to the Counter Affidavit. The copy of notice was published in the official website calling for objections to proposed removal/ striking off of the name of the Company within 30 days from the publication of the notice. The copy forms Annexure B to the Counter Affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of issue raised in this appeal. Any observation by the Tribunal on the issue not being the subject matter of appeal would be beyond its province and cannot be supported. Viewed thus, finding in respect of maintainability being legally infirm and unwarranted is overturned. 7. Now coming to the core issue, we take note of the affidavit in opposition filed by the Respondent ROC, West Bengal spelling out in detail the procedure adopted in passing of impugned order. It is noticed that the notice contemplated under Section 248(1) of the Act r/w the Rule 3 of the Companies (Removal of names of companies from the Register of Companies) Rules, 2016 dated 22.03.2017 was issued on 06.04.2017 by Speed Post to the Appellant Company and its Directors. The copy of notice was published in the official website calling for objections to proposed removal/ striking off of the name of the Company within 30 days from the publication of the notice. The copy of notice was published in the Official Gazette on 06th May, 2017 to 12th May, 2017. Public Notice dated 7th April, 2017 was published in Times of India and in Bengali Newspaper Anand Bazar Patrika both issues dated 30th A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany or not being incidental or ancillary thereto cannot be termed a legitimate business for demonstrating that the Company was in operation. The finding recorded by the Tribunal and the conclusions deducible from the material on record do not warrant interference as no contrary view is possible. 9. Section 252 (3) of the Companies Act, 2013 empowers the Tribunal to order restoration of a Company whose name has been struck off from the Register of Companies, if such company, any member or creditor or workman thereof feeling aggrieved by such striking off applies before the Tribunal seeking restoration of the struck off company to the Register of Companies before the expiry of twenty years from the publication in Official Gazette of notice under Section 248(5). The exercise of such power is properly regulated and depends upon satisfaction of the Tribunal that the Company at the time of its name being struck off was carrying on business or in operation or otherwise it is just that the name of company be restored. We do not find ourselves persuaded to agree with the proposition canvassed by learned counsel for the Appellant that inspite of Appellant s inability to demon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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