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TMI Blog2024 (9) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved against the company having its name struck off, which may happen when a company gets its name struck off as per the provisions of section 248(2) for which longer period of limitation of 20 years are provided. Thus, when a Company is struck off by the ROC as per the provision of section 248(1) on violation of certain provisions of the Companies Act, provision for revival of the company is provided u/s 252(1) and when a Company is struck off u/s 248(2) on its application to ROC having discharged its liabilities and passing of special resolution by the shareholders, provision for revival of the company is provided u/s 252(3). In the present case under appeal also, STK-1 dated 18.07.2022 was issued by the ROC after finding that the subscription which the company had undertaken to pay at the time of incorporation of the Company and a declaration to this effect, has not been filed within 180 days of its incorporation under sub-section (1) of section 10A, which is in violation of section 248(1)(d). Therefore, the ROC after giving notice u/s 248(5) vide STK-5 dated 30.08.2022, struck off the Company from the Register of the Companied by issuing notification in STK-7 dated 18.10.2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export, distribute or deal in agriculture produce of all description, like fruits, vegetable, seeds and herbal products and trade in all the products required for cultivation, harvesting, production and developments of seeds, vegetable, fruits and herbal items, carry on the business of planters, growers and cultivators of seeds, vegetable, fruits and herbs and to cultivate, grow, produce or deal in vegetable, fruits and herbs and to undertake the activities for its processing, preservation or storage with the installation for plant, machinery, cold storage, air conditioning, refrigeration and other equipment and to provide consulting and support services. 4. The appellant contends that it received a notice in Form STK-1 from the Registrar of Companies, Kanpur, Uttar Pradesh, regarding the removal of the company's name from the Register of Companies, in accordance with subsection (1) of Section 248 of the Companies Act, 2013, and rule 3 of the Companies (Removal of names of Companies from the register of the Companies) Rules, 2016, dated 18.07.2022, with reference number RoC Kanpur 248(1)8202842022. The reason cited was that the subscribers to the Memorandum had not fulfilled th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or objections to the proposed removal of the Appellant Company's name from the Register of Companies within 30 days from the notice's publication date. 10. The Appellant Company states that the company and its directors were unable to submit their representation in response to Public Notice No. 03/37/STK-7/Striking off 248(1)(d)/2022/1995 dated 30/08/2022 in Form STK-5, which invited objections to the proposed removal of the Appellant Company's name from the Register of Companies within 30 days from the publication date. This was because the notice was not served on the Company and its directors. 11. Consequently, the name of the Appellant Company was struck off from the Register of Companies by the Registrar of Companies, Kanpur, on 18/10/2022 and the said appellant company was dissolved vide STK-7 published in the Gazette of India Part-III Section-I vide Public Notice of ROC, Uttar Pradesh, Kanpur, No. 03/37/STK7/Striking off 248(1)(d)/2022/10351 dated 18.10.2022. A copy of Form STK-7 has been attached as Annexure-11 of the Appeal. 12. In view of the facts and circumstances of the case as explained above, the Appellant Company has prayed to pass appropriate order in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts under the Companies Act and the Income Tax Act, if deemed appropriate by this Tribunal 16. A counter affidavit was filed by the Appellant in response to the replies filed by ROC and Income Tax respectively. In its response to the ROC, the Appellant stated that it was incorporated on 30.12.2020 and was mandated to adhere to the provisions of Section 10A of the Companies Act, 2013, within 180 days of its incorporation, which would be until June 2021. However, the onset of the second wave of the COVID-19 pandemic on 13.03.2021, hindered the company's ability to fulfill this compliance requirement. 17. In its response to the report of the Income Tax Department, the Appellant stated that the Company was established on 30.12.2020. According to the Companies Act, 2013, it was required to comply with Section 10A within 180 days of its incorporation, until June 2021. However, the onset of the second wave of the COVID-19 pandemic on March 13, 2021, significantly hindered the company's ability to fulfill this requirement. This timing indicates that the company was established amidst the ongoing challenges of the pandemic, which prevented it from commencing operations and meeting r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies......... 252(3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under subsection (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored, to the Register of Companies............. 21. A company can be struck off from the Register of the Companies either as per the provisions of section 248(1) or as per the provision of section 248(2) of the Companies Act, 2013. Under the provisions of section 248(1), the ROC on having reasonable cause to believe of certain failures of the Company in complying with the provisions of the Companies Act, 2013, is empowered to strike off the company after giving reasonable opportunity to the said company to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Act, 2013. While, going through the section 252(3) of the Companies Act, it is found that the instant provision is made when the company is struck of voluntarily on the behest of the Promoter(s)/Director(s), whereas, section 252(1) of the Companies Act, provides that, when the company is struck of by the Registrar of Companies on the failure in filing of statutory returns by the Company. For the sake of brevity, both the provisions are produced here under: 252(1) Any person aggrieved by ah order of the Registrar, notifying a company as 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......... 252(3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instance of the ROC for non-compliance of statutory returns, then in that event, aggrieved person may file an appeal to the tribunal within a period of three years from the date of the action of the Registrar. 15. Even if it is assumed, there is misquoting of the section, which is not going to vitiate the case but then even in that case also this application cannot be allowed as this was struck off on the instance ROC from the register of the ROC under section 248 (1) of the Act. In that event, an appeal is to be filed within three years from the date of struck off by the ROC, the Appellant has filed the application after 3 years i.e. on 09.07.2020, whereas, the Company was struck off on 21.06.2017. Therefore, the appeal is barred by limitation as per section 252(1) of the Companies Act, 2013, hence dismissed. No cost. 24. In an Order passed by us in case of VGK Electric Vehicle Industry Private Ltd. vs. ROC in CP No. 33/ALD/2023 dated 05.10.2023 also, after finding that the company was struck off by the ROC and dissolved as per the provision of section 248(1), it was held by us that appeal filed u/s 252(1) would be maintainable and not the appeal filed u/s 252(3). 25. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been found to be maintainable as per the provision of section 252(1) of the Companies Act, 2013. 27. After having held that the present appeal is considered by us as filed under section 252(1) of the Companies act, 2013, we have further considered the facts and circumstances and response from the concerned statutory authorities connected with the functioning of the companies as discussed in aforesaid paras, we find that the emergence of the second wave of the COVID-19 pandemic during the period of the years 2020 and 2021, impeded the company's capacity to commence business operations and meeting regulatory obligations. 28. The Appellant Company has also filed an undertaking submitted on behalf of its shareholders, ensuring compliance with the provisions of the Companies Act regarding any penalties related to the failure to pay the subscription amount for shares upon incorporation. Therefore, we allow the instant appeal to the extent of directing the ROC, Uttar Pradesh, Kanpur to restore the name of the appellant Company on the Register of Companies in the same position as nearly as may be as if the name of the company had not been struck off from the Registrar Of Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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