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TMI Blog2021 (6) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 2013. Whilst, the Company is carrying the business and if it is in operational however, non-filing the Annual Returns and the financial statement as required under law inadvertently may not be a ground for removing the name of the company - the company is in operational and as per Section 252 of the Companies Act the Learned NCLT ought to have restored the name of the Company to the Register of Companies. The SCN and any consequential order in respect of striking off the company are hereby set aside - ROC is hereby directed to restore the name of the Company i.e. Hiraj Hospitality Pvt. Ltd. on the Register of Companies - application allowed. - Company Appeal (AT) No. 148 of 2020 - - - Dated:- 21-6-2021 - [ Kanthi Narahari ] Member ( Technical ) For the Appellants : Mr.Devesh R Desai, PCS For the Respondent : Mr. Vijay Joshi, Advocate for ROC JUDGMENT KANTHI NARAHARI, MEMBER (TECHNICAL) Preamble: The Present Appeal arises out of the order dated 29.01.2020 passed by the National Company Law Tribunal (NCLT) Ahmedabad Bench, Ahmedabad whereby the NCLT dismissed the Appeal/Application filed by the Appellant Company. Appellants Submissions: 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yees are working with the company and the company has been paying regular salaries to its employees. He submitted that in support of the same he filed photocopy of the details of the employees and their attendance as Annexure 7 page 170 to 175, of the Appeal Paper Book. 8. The Learned Counsel submitted that the Hon ble NCLT dismissed the Application on the ground that the Company did not generate any income/revenue from its operations since the financial year ending 31.03.2017 to 31.03.2018 and the company did not show TDS deduction as showing in Annual Accounts and having not provided future plan to revive the company. 9. In view of the aforesaid grounds the Hon ble NCLT dismissed the Application seeking restoration of the company. The Learned counsel requested the Bench to allow the Appeal by setting aside the impugned order of the Hon ble NCLT. Respondents Submissions: 10. The Learned Counsel appearing for the ROC submitted that the Company i.e. Hiraj Hospitality Pvt. Ltd. failed in filing of its statutory returns for a continuous period of more than two years, the name of the company has been considered for striking off by the ROC, Gujarat in a suo-moto action under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pleadings and documents of the Appellants and the Respondent, dismissed the Application/Appeal on the following reasons at paragraph 17,18,19,20,21 22. 17. On perusal of the Balance Sheet for the F.Y.2016-17 and 2017-18, it is found that the Company is running in losses and also failed to produce any document with regard to the future prospect of business or any proposal for future business supported with any project report to show their bonafide. 18. Admittedly, as against Authorized Share Capital of ₹ 2,00,000/- and Issued, Subscribed Paid Up Capital of ₹ 2,00,000/- , the company is incurring losses for the preceding last few financial years i.e. accumulated loss as on 31.03.2019 is ₹ 1,46,60,340/-. 19. The Appellant has failed to substantiate/justify the cause of the losses and has miserably failed to show their bonafide with regard to their future plan or prospects which may necessitate to revive the company. 20. On further perusal of the Income Tax Return Acknowledgment for the 3 years, which reflects NIL income continuously, however, they are showing TDS deduction but no supporting documents has been filed to substantiate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the reply the company states that the financial statement for the Financial Year 2016-2017, 2017-2018 2018-2019 and Income Tax Acknowledgment for Assessment Year 2018-2019 shows that the company is carrying on its business activities as per the objects enumerated in the Memorandum of Association and it is fully operational. While so the ROC vide order dated 13.11.2019 struck off the name of the company from the Register of Companies. 21. Section 248 of the Companies Act, 2013 deal with power of Registrar to remove name of Company from Register of Companies. Sub-Section 1 read as under where the Registrar has reasonable cost to believe that (a) a company has failed to commence its business within one year of its incorporation or (c) a 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. (emphasis supplied) 22. There is no doubt that the ROC has power to remove the name of company from the Register of companies for the aforesaid grounds. However, the statute, provides Appeal to the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed just for placing the company and all other persons in the same position as nearly as may be as if the name of the Company had not been struck off from the Register of Companies. 24. The Learned Counsel for the Respondent taken a stand before the NCLT that the Tribunal may pass an appropriate order or restore the name of the Company subject to the conditions, as stated in their reply filed before the Learned NCLT in its impugned order dated 29.01.2020 reproduced the condition as stated by the ROC in paragraph 15 where from it is seen that the ROC put the condition namely viz imposing the cost for their ignorance and negligence etc. However, the ROC has taken a different stand before this Tribunal. Findings: 25. From the Pleadings it is evident that the company is carrying on business and it is in operational. However, the admitted fact that the company is not filed the Annual Returns for two preceding years and the same has been admitted by the Appellant and the Company for their default showing that they are ignorant of the law. 26. The main ground for the removal of the company from the Register of Companies is that if the company is not carrying any business or o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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