2022 (12) TMI 319 - AT - Companies Law

Tribunal Restores Struck Off Company Name Under Companies Act

M/s. BBC Developers Private Limited, Mr. Biswajit Karmakar Versus Registrar of Companies, Odisha

The Tribunal allowed the Appeal under Section 421 of the Companies Act, 2013, setting aside the NCLT's order dismissing the restoration of the Struck Off ... Seeking restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC) - section 252 of companies Act - HELD THAT:- In view of the fact that the Appellant Company have purchased the lands between 2011-2013 and Audit Reports along with Balance Sheet and Financial Statements of the Appellant Company from 2012-2013 to 2019-2020 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 (Cuttack Bench, Cuttack) as well as RoC, Odisha is not sustainable in law. The name of the Appellant Company be restored to the Register of Companies subject to the compliances imposed - application allowed. Issues:- Appeal under Section 421 of the Companies Act, 2013 against the order of NCLT dismissing the restoration of the name of a Struck Off Company.- Consideration of assets, business operations, and compliance with statutory requirements by the Appellant Company.- Failure of NCLT to consider assets and business operations of the Appellant Company.- Compliance with statutory requirements by the Appellant Company and actions of the Respondent.- Decision on restoration of the name of the Appellant Company in the Register of Companies.Analysis:1. The Appellant filed an Appeal under Section 421 of the Companies Act, 2013 challenging the order of NCLT dismissing the restoration of the name of the Struck Off Company. The Appellant contended that the Tribunal failed to consider the intact assets and ongoing business operations of the Company, crucial for determining if the Company is carrying on business within the meaning of Section 248 of the Act.2. The Appellant Company, incorporated in 2011, purchased immovable properties for business purposes. Despite facing challenges in filing Financial Statements and Annual Returns, the Company remained operational, with audited accounts each year. However, the Respondent issued notices under Section 248(1)(c) due to non-filing of statutory returns, leading to the Company's name being listed for striking off.3. The Appellant argued that they did not receive any notices or an opportunity to be heard before the name strike-off action. Conversely, the Respondent highlighted the non-filing of statutory returns and lack of response to show cause notices, justifying the Company's removal from the Register.4. The Tribunal, after considering submissions and evidence, found that the Appellant Company maintained substantial assets and ongoing business operations, contrary to the Respondent's claims. The Tribunal concluded that the Company was indeed carrying on business and set aside the NCLT's order, directing the restoration of the Company's name in the Register of Companies.5. To restore the name, the Tribunal imposed conditions: payment of costs to the RoC, filing of all Annual Returns and Balance Sheets, and compliance with requisite charges/fees. Additionally, the RoC retained the authority to take punitive actions for non-compliance with statutory requirements by the Company and its Directors.6. The Tribunal allowed the Appeal, emphasizing the importance of considering the Company's assets and operations before striking off its name. The judgment was to be uploaded on the Tribunal's website and sent to the NCLT for further action.