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TMI Blog2022 (4) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... g financial years. On a query from the Bench to the Learned Counsel appearing for the First Respondent/RoC as to which Mode of Despatch the aforenoted Notice was sent, it was informed to the Bench that the Notice was sent by ordinary process. Hence there is no Proof of Service which could be ascertained. However, a general notice with respect to all the names which have been struck off from the RoC has been said to be listed on the website of Ministry of Corporate Affairs (MCA) - Having regard to the fact that the publication in the newspaper only refers to the link of the website of the MCA but it does not state anywhere the names of the companies, which are only reflected/specified in the website, and admittedly a general notice relating to thousands of companies, this Tribunal is of the considered view that notice in the proper form which is dated and sent by a Mode of Despatch establishing a Proof of Service would be considered sufficient notice , keeping in view the facts and circumstances of the attendant case on hand. A perusal of the Notices given for conducting AGM Meeting are 2.9.2015, 2.9.216, both which fall within the relevant period of two years prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zero in the said acknowledgements. We have also seen from the Director s Report for the year ended 31.03.2016 that gives the impressing that the Company is not carrying on any business as most of the figures are shown in brackets , zero and nil . The Profit Loss Account for the year ended 31.03.2016 gives the same picture. IN short, the Applicant Company failed to establish that it was carrying on any business at the time of striking off its name from the Register of the Companies. Further, no valid ground has been shown for non-compliance of the provisions of the Companies Act, 2013 since 2012. Thus, the decision with regard to the striking off the name of the Applicant Company by the RoC is fully justified in the light of the fact that the Company is not doing any business for a long and it is a sham Company. In the light of facts and circumstances mentioned above, the Applicant Company does not deserve any order for restoration of its name in the Register of Companies. Accordingly, the Petition stands dismissed. However, there is no order as to cost. 2. Submissions of the Appellant The Learned Counsel appearing for the Appellant Company contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod and notice of the AGM have been annexed in the Appeal Book. The Learned Counsel for the Appellant has placed reliance on the ratio of the judgement in Three Star Properties Pvt Ltd V. Kanwar Pal Singh (Company Appeal No.127/252/ND/2018 to buttress his argument that further, it is also seen that where litigations are pending and where immovable property rights involved as held in CP No.406/2009 by the Hon ble Delhi High Court, as in the instant case too as facts vouch, it is only proper that the name of the company be restored to the Register. This Tribunal is of the view that hence there exists a just ground for the restoration of the name of the appellant company in the Register of RoC but, however, the restoration is subject to the following terms and conditions . The Learned Counsel for the Appellant submits that the Appellant company owns a piece of land bearing Municipal Nos 2119 to 2121 built on plot/khasra No.494-495 in Block J measuring 354 sq yds situated at Gali No.58, Naiwala, Karol Bagh, Delhi State, New Delhi; that the registered office of the Appellant Company is also situated in the said plot which establishes that the Appellant Company has been in ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No Return filed 2019-20 No Return filed It is submitted that the restoration of the Company be subject to payment of outstanding tax/dues of the Income Tax Department. It is also submitted that once the Income tax proceedings are completed and demand is crystallized, the demand never gets time barred by any limitation. Hence, the company should be restored with an undertaking to clear its tax liability due and payable to the Income Tax Department. 5. Assessment At the outset, we address ourselves to the contention of the Learned Counsel for the Appellant company that sufficient notice under Section 248(1(c) of the Act was not sent hence the provisions of said Section was not complied with, on account of which the Appellant Company was not given an opportunity to present their case. At this juncture we find it relevant to produce the subject notice relied upon by 1st Respondent in support of its case that the Appellant Company was in the knowledge of the said notice. Additionally it is also the case of the First Respondent that si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by ordinary process. Hence there is no Proof of Service which could be ascertained. However, a general notice with respect to all the names which have been struck off from the RoC has been said to be listed on the website of Ministry of Corporate Affairs (MCA). A perusal of the reply affidavit filed by the RoC indeed shows that the website of the MCA under Form STK-7 shows a total of 17993 + companies were shown to have been struck off from the register of the companies. Having regard to the fact that the publication in the newspaper only refers to the link of the website of the MCA but it does not state anywhere the names of the companies, which are only reflected/specified in the website, and admittedly a general notice relating to thousands of companies, this Tribunal is of the considered view that notice in the proper form which is dated and sent by a Mode of Despatch establishing a Proof of Service would be considered sufficient notice , keeping in view the facts and circumstances of the attendant case on hand. Section 252 deals with Appeal to Tribunal and the same is reproduced as under:- 252. Appeal to Tribunal-(1) Any person aggrieved by an order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny had not been struck off from the register of companies. What has to be essentially examined by this Tribunal , keeping in view the provision of Section 252(3) of the Act is a) Whether the Appellant Company was carrying on business or in operation at the time of its name being struck off? b) Whether the Appellant company had any assets/immovable property at the time the name was being struck off? c) Whether the Company has held any AGM; if it was carrying on business two years prior to the date of striking of the company which in the instant case is 30.06.2017? NCLT has referred to the Income Tax returns for the Assessment Year 2011-12, 2012-13, 2013-14, 2016-17, 2017-18 and observed that the figures are shown as zero in the said acknowledgements. We find force in the contention of the Appellant Company that this observation is incorrect as in the Income Tax Returns acknowledgements for the years 2016-17 and 2017-18 it is shown that the current loss of ₹ 29305/- and ₹ 26081/-. As the strike notice was published on 30.06.2017, the relevant period in the instant case is the preceding two years i.e. 30.06.2015 and 30.06.2016. The Affidavits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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