2018 (5) TMI 226

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....rred to as the Company) was incorporated under the Companies Act, 1956 on 12th March, 2007 as a Private Limited Company with the Registrar of Companies, Andhra Pradesh and Telangana and its registered office at Flat No.402, Saila Vilas, Rajbhavan Road, Somajiguda, Hyderabad - 500 034, Telangana. (2) The main objects of the company is to carry on business as manufactures Distributors and dealers in all kinds of herbal products and proprietary products, hair, skin, nail and other beauty preparations, deodorants, aerosol and pump-spray products, baby products, petroleum and minerals oil products, chemicals, acids and alkalis, all kinds of perfumery and other compounds, etc. (3) The Authorized Share Capital of the Company is Rs. 1,00,000/- [Rupees one Lakh only] divided into 10,000/- [Ten Thousand only)] Equity Shares of Rs. 10/- [Rupees Ten] each. The Issued, Subscribed and Paid-up Share Capital of the Applicant is Rs. 1,00,000/- [Rupees One Lakh only)] divided into 10,000 (Rupees Ten Thousand) Equity Shares of Rs. 10/- (Rupees Ten Only) each. (4) The Company has not filed Annual Returns for the financial years 2011-12, 2012-13, 2013-14, 2014-15 and 2015-16.....

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....ry of Corporate Affairs Vide No. ROC(H)/248(5)/STK-7/2017 dated 21.07.2017 (9) Due to administrative reasons, the Company could not file the RoC returns from FY 2011-12. The Directors of the Company have consulted the legal experts and on the opinion it was thought that the Annual Returns and Financial Statements for the years 2011-12, 2012-13, 2013-14, 2014-15, 2015-16 can be filed with the Registrar of Companies with additional fee as contemplated under Sections 92 and 137 read with Section 403 of the Companies Act, 2013 during the month of September, 2017 prior to conducting the recent Annual General Meeting. Other than the said reason, there was no intentional delay on part of the Company and its Directors in complying with the provisions of the Companies Act, 2013. (10) The Directors have come to know that RoC has struck off the name of the 1st Respondent Company, from the Register of Companies. The Applicants being the Promoter shareholders and Directors understood the said fact of striking off from the register while trying to file the said returns during the second week of September, 2017. The Master data available in the Portal of MCA displaying that the ....

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....cant. She has further submitted that the Company is filing its Income Tax Returns with the Income Tax Department regularly, and the Annual Returns, and it prepared to submit all the Annual Accounts and the annual Returns pertaining to five Financial Years 2011-12, 2012-13, 2013-14, 2014-15 and 2015-16 within the time stipulated by the Tribunal and also ready to pay the required Compounding Fee/Additional fee in accordance with the Rules. 5. He has also relied upon the judgment of the Hon'ble Bombay High Court in the matter of Purushottamdass v. Registrar of Companies & Ors.. [1986] 60 Comp. Cas. 154 (Bom), by inter alia stating that; "the object of Section 560(6) of the Companies Act is to give a chance to the Company, its members and creditors to revive the company which has been struck off by the Registrar of Companies, within period of 20 years, and given them an opportunity of carrying on the business only after the company judge is satisfied that such restoration is necessary in the interest of justice." 6. Mr. Ramesh Chandra Mishra, RoC by reiterating the averments made in his report Ref. No. ROCH/LEGAL/SEC252/53083/Klienz/STACK/2017/2778 Dated 05.12.2017, ....

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....alisation of all amounts due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company: Provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the Register of Companies. Appeal to Tribunal deals with under Section 252 of the Companies Act, which reads as follows: 252 (1) Any person aggrieved by an order of the registrar, notifying a company is 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 under restoration of the name of t....

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....erned Company u/s. 248(5), the Registrar of Companies, is under duty to follow provision 6 of section 248, which mandates the Registrar of Companies to satisfy himself that sufficient provisions has been made for realisation of all amounts due to the Company and for payment or discharge of its liabilities and obligations etc. Therefore, in the interest of Company and its employees and public employment, the case has to be considered favourably. The employees are to be paid their wages for the services rendered. And thus, striking off the name of Company would also result in serious repercussions like Debit Freeze accounts of the Company with its Bankers etc. Therefore, a lenient view is required to be taken by the Tribunal in the interest of justice. 9. As per section 252(3) as extracted above, a Company, or any member or creditor workman, if they feel aggrieved by striking off its name can approach the Tribunal by way of application, before expiry of 20 years after date of publication. On being filed an application, the Tribunal can order to restore striking off company on its role, if it is satisfied that the company was, at the time of its name being struck off, carrying on b....

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....f 2013 also confers such rights to its citizen by permitting them to incorporate a Company under the Act to carry on any profession, Trade and Business. In the instant case, it is not in dispute that the Company is incorporated in accordance with Act and prima facie to prove that the Applicant Company is following all extant provisions of Companies Act in consonance with its Memorandum of Association and Articles of Association of the Company till the impugned violation(s) are noticed. It is not in dispute that Registrar of the Companies is empowered to take the impugned action and only the point here is that he has to strictly comply with the provisions as extracted above. A Court/Tribunal cannot interfere with normal activities of business of a Company being carried on in accordance with law unless any serious violation of law committed by a Company. As stated supra, the impugned violations are not so severe so as to take serious view of it. Moreover, the Company has come forward to file all required documents and comply in accordance with law by making payment of along prescribed/additional fee along with fine. It is also relevant to point out here that there is no bar for a Com....