M/S Khari Constructions Private Limited And Ors vs Registrar Of Companies And Anr

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Directors of M/s Khari Constructions Private Limited (for brevity the ‘Company’), under Section 252 of

the Companies Act, 2013 (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 / 2879 and published on 30.06.2017 by Registrar of Companies,

the respondent herein.

The Appellant states that, the company was incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and

Haryana under the Companies Act, 1956 on 28.07.2011 with CIN U45400 DL2011 PTC 222960, having its registered office at C-3/8, C-8 Block,

Ashok Vihar, Phase â€" II, New Delhi â€" 110052, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 45,00,000/- divided into 4,50,000 equity shares of Rs. 10/-each. The issued, subscribed and paid

up share capital of the Company is Rs. 1,00,000/- 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 lease 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, markets, commercial complex with hall or related conveniences thereon and to equip

the same or any part of the other building, or any related amenities or conveniences such as drainage.

(ii) To act as commission agents and dealers in farm land building whether commercial, residential whether meant for purchase, sale, resale

or let out.

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

with any building or building schemes, roads, highways, sewers, bridges, dam, reservoir, embankments, irrigations, improvements, sanitary,

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

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

(iv) To carry on the business as civil contractors for constructions of markets, commercial complex, amusement parks roads, buildings,

houses, flats, school complex, consisting main buildings, playgrounds, library and laboratory’s buildings, hostel buildings, and

residential flats, factory’s sheds and buildings, dams, canals, tanks, bridges, hydel projects, power house, tunnels, culverts, drains,

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

(v) To sell, let, mortgage or dispose of the markets, commercial complex, lands, houses, buildings and other immovable property of the

company.

(vi) And the other main objects.

The appellant further states 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 Annual Returns and Financial Statement since Financial

Years ended 2013, thereby giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off

vide notice STK-7 dated 30.06.2017 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-5/721 dated 27.04.2017, the Respondent

herein had issued notice bearing no. ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017, whereby name of 24280 companies have been struck off

w.e.f. 07.06.2017 from the Registrar of Companies. The name of the company is reflected at Sl. No. 10417 of the notice bearing No.

ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017. 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 ended 2013, 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 appellant has submitted that the financial statement upto the year ending 31.03.2013 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 the

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 Sale Deed executed on 09.09.2011 in respect of property bearing no. A-100/5, Wazirpur Industrial Area, Delhi Industrial Plot,

measuring 410 sq. mts.

ii. The copy of Bank Statements of the Company of Indian Overseas Bank for the period 01.01.2016 to 25.03.2018 showing various transaction details

of the company and reflecting closing balance of Rs. 5,703.19 as on 25.03.2018.

iii. The copies of Audited Financial Statements of the company for the period from F. Y. 2015-16 to 2017-18. The Balance Sheet as on 31.03.2018

reflects non-current assets of Rs. 2,14,00,000 and Current Assets from cash and cash equivalents of Rs. 84,349/-.

The ROC has filed its reply on 20.08.2019 in which it has been stated that the Company had not filed its Financial Statement since Financial Year

ended on 31.03.2014. However, the ROC further submits that the company was struck off by the office of Respondent, as neither the company was

carrying on any operation for a period of two immediately preceding financial years, nor it obtained the status of a Dormant Company under Section

455 of the Companies Act, 2013.

The Income Tax Department has not filed any reply in spite of being given repeated opportunities to do the same. Hence, the present appeal is

being decided in the absence of any reply from the Income Tax Department.

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 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.

A copy of order be sent to the Income Tax Department for record & consideration.