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TMI Blog2022 (12) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... mp. App (AT) No. 28 of 2021. 3. Considering the fact that, according to the Petitioner / Appellant, the 'Income Tax Returns', mentioned supra, filed by it, are required to prove its case, this 'Tribunal', in furtherance of 'Substantial Cause of Justice', allows IA No. 339 of 2021 (filed by the 'Petitioner / Appellant' under Rule 11 of NCLAT Rules, 2016), to place on 'Record' the 'Additional Documents', since no prejudice will be caused to the Respondent on any score. No costs. JUDGMENT (Virtual Mode) Justice M. Venugopal, Member (Judicial): Company Appeal (AT) No. 28 of 2021: Background: 4. The 'Appellant' / 'Company' (Appellant in Appeal No. 215 / 252 (ND) / 2020, has preferred the instant Company Appeal (AT) No. 28 of 2021, before this 'Tribunal', as an 'Affected Person', being dissatisfied with the 'impugned order' dated 04.01.2021, passed by the National Company Law Tribunal. New Delhi Bench, (Court II), in dismissing the 'Appeal'. 5. The 'National Company Law Tribunal', New Delhi Bench, (Court II), while passing the 'impugned order' dated 04.01.2021 in Appeal No. 215 / 252 (ND) / 2020, at Paragraph Nos. 11 to 14, had observed the following: 11. "That the provisions p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company. 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 ....." 14. In view of the above, this Bench is not inclined to interfere with the striking off action taken by the RoC against the Appellant Company under Section 248(5) of the Companies Act, 2013." and resultantly, dismissed the 'Appeal'. 6. According to the Learned Counsel for the Appellant, the 'Appellant' / 'Company', was incorporated under the Companies Act, 1956 on 01.06.1992 as 'Beriwal Chemicals Limited' (vide CIN : U24119DL1992PLC028863), as a 'Public Limited Company', by 'Shares' with the 'Registrar of Companies', Delhi and Haryana', having its Registered Office, situated at C-9/35/Shop No.2, 2nd Floor, Section - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.08.2019, Published Form No. STK-5, whereby the 'List of Companies', whose names were proposed to be 'removed' / 'strike off' were published and the Appellant's name appeared at Sl. No.8709. Through a Gazette Notification dated 29.10.2019, the 'Ministry of Corporate Affairs' (Registrar of Companies), published Form No. STK 7, whereby the 'List of Companies', whose names were 'Struck Off', were published and the Appellant's name appeared at Sl. No.7503. 11. It is the plea of the Appellant that it preferred an 'Appeal' bearing No. 215 / 252 (ND)/2020, before the 'Tribunal' and the same was Listed, on 04.03.2020, and because of the Learned Counsel for the 'Appellant', got stuck up in another case, the matter was adjourned to 01.04.2020 and in view of 'Covid-19 Pandemic', the matter was not heard and later, the case was fixed for 'Hearing', on 23.12.2020, by virtue of the 'Order' dated 25.11.2020, passed by the 'Tribunal'. In the interregnum, filed numerous documents, among other things, the Balance Sheets for the Financial Year 2017-2018, 2018-2019, 2019-2020 and 2020-2021, 'Income Tax Demand'/ and 'Proof of Payment of Income Tax'. 12. According to the Appellant, it had filed 'In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial Statements', for the Years 2017-18, 2018-19, 2019-20 and 2020-21 and the 'Annual Return' for the Financial year 2018-19. In these circumstances, the 'Striking Off' the 'name' of the 'Appellant' is unwarranted and unjustified. 18. Before the 'Tribunal', the 'Respondent / Registrar of Companies', took a plea that the action of 'Striking Off' the 'Appellant / Company', was legal and justified, as the 'Company was not carrying on any Operations, for a period of two years, immediately preceding Financial Years (as indicated by non-filing of the 'Financial Statements' of the 'Company' for two or more years). Further, the 'Company' had not obtained the 'Status of a Dormant Company', as per 'Section 455 of the Companies Act, 2013'. 19. Apart from the above, in the Respondent's Office, the 'Appellant' / 'Company', had submitted its 'Annual Return' and 'Balance Sheet', for the 'Financial Year', ended on 31.03.2018 and 31.03.2016, respectively and later the 'Appellant / Company', had not filed any documents with the Respondent. A 'Public Notice', in Form STK-5 was issued. 20. The stand of the Respondent before the 'Tribunal', was that the total demand raised by the 'Income Tax Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be restored to the Register to enable the matter to be carried to its conclusion, as has been held by this Court in M/s. Indian Explosives Ltd. v Registrar of Companies, CP. No. 185/2008, decided on 21st April, 2010." 26. In the decision in 'Sidhant Garg and Anr. v 'Registrar of Companies and Ors.', in (2012) 171 Comp. Cas. 326, it is observed and held that the word 'just' would mean that 'it is fair and prudent from a commercial point of view to restore the Company and that the Court has to examine the concept of 'justness' not exclusively from the perspective of a creditor or a member or a debtor but from the perspective of the society as a whole.' 27. In the Judgment of the 'Appellate Tribunal' dated 31.01.2019, in the matter of Lakshmi Rattan Cotton Mills Company Ltd. through its Director Sashank Gupta, Kanpur, Uttarpradesh v Union of India, through Secretary, Ministry of Corporate Affairs, (vide Comp. App. (AT) 239 of 2018), wherein at paragraphs 11 and 12, it is observed as under: 11. "Looking to the disputes pending in the High Court, according to us, it would be appropriate to restore the name of the Company to the Registrar of Companies leaving all questions open for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not come in the way of 'Registrar of Companies', Mumbai to recover other 'Statutory' penalties / dues / filings, liable to be paid by the 'Appellant'. Foreign Decision: 29. In the decision in Conti v Uebersee Bank AG, (2000) BCC 172 (Scotland), it is observed as under: "Where a company has been struck off the register at its own request, the officer of the company who had been instrumental in seeking such a striking off had sufficient locus-standi to apply for restoration. Clearly that officer could not claim that he was aggrieved at the time of striking off but a subsequent feeling of grievance would give him locus-standi. The language of the section points to a sense of grievance at the time of application to restore and not at the date of the dissolution." 30. In Re Priceland Ltd. Waltham Foresh London Borough Council v Registrar of Companies and Ors. (1997) 1 BCLC 467, 476, 477 (Ch. D) (Companies Court), it is observed and held as under: ".....In other words, the exercise of discretion only arises after the court has been satisfied that (a) the company was at the time of striking off carrying on business or in operation, or (b) otherwise that it is just that the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the 'Company' or its 'Directors', which requires 'Restoration' in the 'Register of Companies', he may within three years from the date of passing of the order, dissolving the Company under Section 248 of the Companies Act, 2013, file an 'Application', before the 'Tribunal', seeking 'Restoration of name of the Company'. No 'Extinguishment': 36. The 'Right' to pray for 'Restoration' of a 'name' of the 'Company', to the 'Register of Companies', maintained by the 'Registrar of Companies', is not wiped out as long as the 'period of 20 years had not lapsed', as opined by this 'Tribunal'. Power of Tribunal: 37. The words figuring in 'or otherwise', in Section 252 (3) of the Companies Act denotes that, even when the 'Company was not carrying on any 'Business' or was not in 'Operation', at the time of 'Striking Off', the 'Tribunal' has the 'Choice' to 'Order 'Restoration of a Company's name in the Register of Companies', if it appears to it, to be 'Otherwise Just'. Dormant Company: 38. In 'Law', a 'Company', is entitled to 'Apply' for obtaining the character of a 'Dormant Company', by passing a 'Special Resolution' at the General Meeting of the Company or by securing the 'Consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,00,000/-, Rs.3,00,000/-, Rs.60,000/- and Rs.22,500/- respectively), and that apart, is to recover approximately Rs.18,12,500/- from its 'Debtors', in respect of sums. 45. According to the Appellant, its Bank Statements shows that regular transactions and payment of Salaries, Wages, Expenses, etc. and in fact, a 'Discretion', is vested in the 'Tribunal', to 'Restore' the 'name' of the 'Company', to the 'Register of Companies', if it is satisfied that 'the Company', was at that time of its 'name' being 'Struck Off', carrying on 'Business' or in 'Operations' or 'Otherwise', it is just that the 'name' of the 'Company' be 'Restored' to the 'Register of Companies' and 'Order' the 'name' of the 'Company' to be 'Restored'. 46. The 'Appellant / Company' in the instant 'Appeal' has come out with a plea that in the event of 'Revival of the Company' and the 'Restoration of 'name' of the Company', in the 'Register', maintained by the 'Respondent', it shall file 'all Outstanding Statutory Documents', Viz. the 'Financial Statements' for the 'Financial Years' from 2016-17, 2017-18 and the 'Financial Statement' and 'Annual Return' 2018-19, along with the Filing Fees and the Additional Fee, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able' one in 'Law'. Viewed from that angle, the instant 'Appeal' succeeds. Result: 49. In fine, the instant Company Appeal (AT) No. 28 of 2021 is allowed. No costs. The impugned order dated 04.01.2021 in Appeal No. 215 / 252 (ND) / 2020 (filed under Section 252 of the Companies Act, 2013), passed by the 'National Company Law Tribunal', New Delhi Bench (Court II), is set aside by this 'Appellate Tribunal', for the reasons assigned in this 'Appeal'. The 'Notice of 'Striking Off' and 'Dissolution' in Form No. STK-7 dated 29.10.2019, where the 'name' of the 'Appellant' / Company', appearing at Serial No. 7503, is set aside. 50. Before parting with the case, this 'Tribunal', pertinently points out that the 'Restoration' of the 'name' of the 'Appellant' / 'Company', is subject to its filing of all outstanding documents required by Law and completion of all 'Statutory' formalities including payment of any late fee (for the outstanding period) or any other 'charges' / 'prescribed fee', which are leviable by the 'Respondent' for late filing of 'Statutory Returns' and also on payment of cost of Rs.60,000/- (Rupees Sixty Thousand only), to be paid to the 'Prime Minister Relief Fund', withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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