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TMI Blog2022 (6) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... rated on 28th April, 2006 under the Companies Act, 1956 and is engaged in the field of 'Real Estate Development Projects'. The Appellant has submitted that there is an ongoing dispute with 'Mathura Vrindavan Development Authority' (MVDA) and the 'Hon'ble High Court of Judicature at Allahabad' vide its order dated 04th February, 2016 in Writ -C No. 38625 of 2012 (appearing at page no. 58 of the Appeal Paper Book) has observed as follows: "The Writ Petition is pending since 2012. In our opinion, if the petitioner has any grievance in the matter, he is at liberty to approach the State Government under Section 41(3) of the U.P.Urban Planning and Development Act, at the first instance. The Writ Petition is dismissed with the aforesaid liberty." 3. It is also stated by the learned counsel for the Appellant that there is an advance against MVDA to the extent of Rs. 71,00,000/- appearing under the heading Long-Term Loans and advances (Non-current Assets) in the 'Balance Sheet' of the Appellant Company as at 31st March, 2017 duly audited by the 'Chartered Accountant' FRN-01253N for SAGC And Associates - Sanjeev Kumar Garg (Partner) M.No.093936. 4. It was also stated by the learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned, the name of the above mentioned company shall be liable to be removed from the register of companies. However, the directors of the company shall be liable for appropriate action under the Act." 7. The Respondent has also stated that no 'Income Tax Return' have been annexed by the Appellant. The dispute between the Appellant Company with a third party cannot be a ground for non-filing of 'Balance Sheet' or' Annual Income Tax Return'. If it is a real estate company, it should have placed ownership of certain land and property or fixed assets or some projects under development which they have not done and accordingly, this appeal deserves to be dismissed. 8. The NCLT while passing the impugned order dated 21st December, 2020 has observed at para 5, 6, 8, & 10 as depicted below: "Para 5 - It is averred by the Appellant that it has an ongoing dispute with the Mathura Vrindavan Development Authority. Therefore, it could not file its Annual Returns, Financial Statement and Income Tax Returns with the statutory authorities. Para 6 - It is further submitted by the Appellant that "it received the order from the Hon'ble High Court of Judicature at Allahabad on 04.02.2016, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hest bidder and for meeting the requirement of 25 % of the bid offer, they deposited a Cheques of State Bank of India for Rs. 3 lakhs and the same was bounced. The Appellant failed to get the bid because of non-compliance of the terms and conditions of the auctions and hence its security money was also forfeited. The Hon'ble High Court of Judicature at Allahabad has asked the Appellant to approach the 'State Government' under Section 41(3) of the 'U.P Urban Planning And Development Act', if he has any grievance in the matter. The Appellant has approached the State Government on 10.04.2018 (as per the oral submission) and has not received any response so far. d) It is quite astonished to observed that the Hon'ble High Court of Judicature at Allahabad passed the order on 04th February, 2016 and the Appellant has approached the 'State Government' on 10.04.2018 after the lapsed of two years. This itself seems to be a casual approach of the Appellant. e) The Appellant's 'Balance Sheet' just reflects certain loans and advances and other non-current assets including certain long term borrowings and certain advances for properties as appearing at page 62 of the Appeal paper book and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 3 [section 455; or] [(d) the subscribers to the memorandum have not paid the subscription which they had undertaken to pay at the time of incorporation of a company and a declaration to this effect has not been filed within one hundred and eighty days of its incorporation under sub-section (1) of section 10A; or (e) the company is not carrying on any business or operations, as revealed after the physical verification carried out under sub-section (9) of section 12.] he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. (2) Without prejudice to the provisions of sub-section (1), a company may, after extinguishing all its liabilities, by a special resolution or consent of seventy-five per cent. members in terms of paid-up share ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies: Provided that before passing any order under this section, the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned : Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period of three years from the date of passing of the order dissolving the company under section 248, file an application before the Tribunal seeking restoration of name of such company. (2) A copy of the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sheet on 2016-17 which has been signed by these two Directors and the Chartered Accountant - FRN-01253N for SAGC And Associates - Sanjeev Kumar Garg (Partner) M.No.093936. k) In the past also, this Tribunal has taken a soft attitude for restoration of the name of the company, perhaps keeping in mind the growth of the economy. The Income tax department also did not inform any negative input about the company. Although, they have not submitted their reply in writing but in the oral submissions on specific query, they did not spell out any negative input about the company. The ROC is also dissatisfied only on the limited ground that the Appellant company has not filed their Balance Sheet and hence have assumed that they are not doing any business or operation. This power, in any case, always vest with the ROC to take appropriate measures under Section 248, if the RoC has the reasonable cause to believe certain events as enumerated in Section 248 (1) of the Act. l) The RoC is empowered to review this Company even after few years and they can take appropriate measures in accordance with the provisions of the Act. So far as the present case of the Appellant is concerned, simply, bec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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