2022 (12) TMI 318 - AT - Companies Law

Appellate Tribunal reinstates company name after finding assets and operations

Dashmesh Impex Private Limited, Kamal Kishore, Lokesh Tayal Versus The Registrar of Companies, NCT of Delhi & Haryana

The Appellate Tribunal overturned the NCLT's decision to dismiss the appeal for restoration of the company's name in the Register maintained by the RoC. ... Seeking restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC) - section 252 of Companies Act, 2013 - HELD THAT:- In view of the fact that the financial statements 2016-2017, 2017-2018, 2018-2019, 2019-2020 and Income Tax Return of the Appellant Company shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, the order passed by the NCLT, New Delhi as well as RoC, NCT Delhi & Haryana is not sustainable in law. The name of the Appellant Company be restored to the Register of Companies subject to the conditions imposed - application allowed. Issues Involved:1. Appeal under Section 421(1) of the Companies Act, 2013 against the order of National Company Law Tribunal (NCLT) dismissing the appeal for restoration of the company's name in the Register maintained by the Registrar of Companies (RoC).2. Consideration of grounds for rejecting the appeal by the Tribunal.3. Compliance with statutory requirements for restoration of the company's name in the Register maintained by the RoC.Issue 1: Appeal Against NCLT Order:The Appellant filed an appeal under Section 421(1) of the Companies Act, 2013, challenging the NCLT's order dated 10.08.2021, which dismissed the appeal for restoration of the company's name in the Register maintained by the RoC. The Appellant was aggrieved by the NCLT's decision in Appeal 171/252/ND/2020.Issue 2: Grounds for Rejecting the Appeal:The Appellant argued that the Tribunal failed to consider that the RoC did not raise any objections for rejecting the appeal and shifted the burden of proof on the Appellant to show that the company was carrying on business. The Appellant highlighted that the company's property was reflected in the balance sheet, and income tax returns indicated business operations before the striking off date.Issue 3: Compliance for Restoration:After hearing both parties and reviewing financial statements and tax returns, it was concluded that the company had substantial assets, indicating ongoing business operations. The Tribunal found the NCLT's order unsustainable in law and directed the restoration of the company's name in the Register subject to specified compliances.The Appellant Company, a closely held entity engaged in software development and garment-related businesses, faced the removal of its name from the Register by the RoC. The RoC's actions were based on the belief that the company was not operational due to incomplete financial filings. However, the Appellant contended that it had assets, regularly filed tax returns, and conducted business activities.The Appellant's appeal highlighted the RoC's lack of objections and the burden placed on the company to prove its operations. The Respondent argued that statutory notices were issued, and public notifications were made regarding the company's removal. Despite this, the Tribunal found that the company possessed substantial assets, leading to the reversal of the NCLT's decision and the restoration of the company's name in the Register.In conclusion, the Appellate Tribunal set aside the NCLT's order, directing the Appellant to pay costs, file necessary documents, and comply with statutory requirements for the company's restoration. The decision emphasized the importance of considering a company's assets and operations before striking its name off the Register, ensuring fair treatment and adherence to legal procedures.