KMI Building Solutions Pvt Ltd. vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Directors of M/s KMI Building Solutions Private Limited (for brevity the 'Company'), under Section 252 of the

Companies Act, 1956 (for brevity 'the Act') against the order of striking off the name of the company, passed by the respondent under section 248 (1)

of the Act, issued vide notification no. ROC / DELHI / 248(5) / STK-7 / 4865 and published on 08.08.2018 by Registrar of Companies, the respondent

herein.

It is stated that the company is incorporated as a Private Limited Company with the Registrar of Companies, NOT of Delhi and Haryana under the

Companies Act, 1956 on 23.04.2012 with CIN U45209 DL2012 PTC 234635, having its registered office at 9C, Pocket â€" 1, Mayur Vihar, Phase

â€" 1, Delhi â€" 110091, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 1,00,000/-divided into 10,000 equity shares of Rs. 10/- each. The issued, subscribed and paid

up share capital of the Company is Rs. 1,00,0001- divided into 10,000 equity shares of Rs. 10/- each, as per the Master Data Annexed.

The main objects of the company are:

(i) To purchase acquire, take on /ease or in any other such lawful manner, any land, buildings and structures and to develop the same and

dispose of or maintain the same and build township, markers, commercial complex, commercial complex with all or any related amenities or

conveniences such as drainage and to act as commission agents and dealers in farm land building whether commercial, residential whether

meant for purchase, sale, resale or let out.

(ii) To lay out, develop, construct, build, erect, demolish, alter, repair or do any other such civil and constructional work in connection with

any buildings or building schemes, roads, highways, sewers, bridges, canals, dam, reservoirs, embankments, irrigations, improvements

sanitary, water electric works and power supply works or any other such structural or work related thereto and for such purpose to

prepare estimates, designs, plans, specification or models related thereto.

(iii) To purchase land for sale, and to develop into farm land plots, construct buildings and flats for sale on instalments or otherwise and to

act as real estate agents and to carry on the business as civil contractors for constructions of markets, commercial complex, amusement

park roads, buildings, houses, flats, school complex consisting main building, playgrounds, library and laboratory's building, hostel

buildings, and residential flats, factory's sheds and buildings, dams, canals, tanks, bridges, hydel projects, power houses, tunnels, culvers,

drains, channels, sewages, garden and such other necessary related civil and constructional works of all types.

(iv) To sell, let or dispose of the markets, commercial complex, lands, houses, buildings and other immovable property at the company and to

set up develop.

(v) And the other main objects.

It is submitted by the appellant that a sweeping action was initiated by the ROC, at the instance of MCA, in striking off the names of several

Companies who had failed to file their Statutory Returns. The Appellant had not filed its Financial Statement since Financial years 2015-16, 2016-17 &

2017-18, thereby giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off vide STK-7

dated 08.08.2018 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance

with law and issuing a notification in the Official Gazette. The names of the affected companies were posted on its website.

The Appellant states that in pursuance of a purported Public Notice bearing No. ROC/DELHI/248/STK-5/2912 dated 18.06.2018, the Respondent

herein had issued notice bearing no. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018, whereby name of 24280 companies have been struck off

w.e.f. 08.08.2018 from the Registrar of Companies.

The name of the company is reflected at SI. No. 10981 of the notice bearing No. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018. In view of

the above notice, name of the company has been struck off from the Register of Companies and the Company has been dissolved.

As per the notice of non-compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statement since

Financial years 2015-16, 2016-17 & 2017-18, the name of the company was struck off in terms of provision of Section 248(1) of the Companies Act,

2013 read with Rule 7 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016_

The financial statement upto the year ending 31.03.2015 alongwith other statutory documents were duly filed by the Company with the ROC (duly

reflecting in the Master Data of the Company). The company was active and was carrying out its business during period of striking off but the

reporting of such activities through Annual Returns and Financial Statement had not been filed with Registrar of Companies due to inadvertence on

part of the management. The said facts are evident from the Bank Account statement of the Company for the relevant period.

The Appellant has brought forward the following documents about it being in operation and functional during the period of striking off:

i. The copy of Bank Statements of the Company of Union Bank of India, for the period 01.04.2017 to 29.03.2019 showing various transaction details

of the company and reflecting closing balance of Rs. 2,09,21,647.73 as on 29.03.2019.

ii. The copies of financial statements of the company for the period from 31.03.2015 to 31.03.2018. The Balance Sheet as on 31.03.2018 reflects

Revenue from NonCurrent Assets in form of Tangible assets of Rs. 5,79,041,00 and Current Assets in form of Inventories of Rs. 2,20,90,871.18.

Cash & cash equivalents of Rs. 6,84,759.13.

iii. The copies of Income Tax Returns for the Assessment Years 2016-17 and 2018-19. The tax paid by the company for A.Y. 2018-19 is Rs. NIL.

iv. Copy of GST Registration Certificate dated 16.07.2018.

The ROC has filed its reply on 16.10.2019 in which it has been submitted that the Company has not filed its Financial Statement since Financial

year ended on 31.03.2016. However, the ROC further submits that the company has not filed its Annual Returns and balance sheet for a period of

two immediately preceding financial years, or obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.

The grounds contemplated under section 252 of Companies Act, 2013, are that the company was carrying on business or was in operation at the

time of striking off its name, and where it appears ""just"" to the adjudicating authority that the name of the company is to be restored to the Register of

Companies and the Section 252(3) further contemplates that one of the above three conditions are required to be satisfied before exercising

jurisdiction to restore the company to its original name on the register of the Registrar of Companies.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and during the period preceding strike off,

therefore it could not be termed as defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) of

the Companies Act, 2013 which vests this Tribunal with a discretion where the Company, whose name has been struck off, and such Company is able

to demonstrate that there is a running business as on the date when the name was struck off and also keeping in consideration that it is just to do so,

can restore the name of the Company, in the Register and in the interest of all stakeholders, including the Appellant itself, who seeks restoration of the

name of the Company in the register maintained by Registrar of Companies, the company deserved to be restored.

Accordingly, this appeal is allowed. The Public Notice of Registrar of Companies striking off the name of the company is hereby declared illegal

and set aside. The restoration of the company's name to the Register of Registrar of Companies is ordered subject to its filing of all outstanding

documents with proper filing fees along with additional fees required under law and completion of all formalities, including payment of any late fee or

any other charges which are leviable by the respondent for the late filing of statutory returns, and also subject to payment of cost of Rs. 25,000/- to be

paid to Prime Minister's Relief Fund. The name of the Appellant Company shall then, as a consequence, stand restored to the Register of the

Registrar of Companies, as if the name of the company had not been struck off in accordance with Section 248(1) of the Companies Act, 2013.

The appeal is disposed of accordingly.

Let the copy of the order be served to the parties.