2018 (12) TMI 1375

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....ncourage the members to save money by making easy and periodical subscription. b) To receive deposits from its members at favourable and reasonable interest rates. c) To invest the moneys received from the members to their benefits without doing the Banking business as defined under the Banking Regulations Act, 1949. i) In immovable properties such as houses and lands. ii)) in government securities and in securities enumerated in the Indian Trusts Act and other securities approved by the Board of Directors. d) to grant loan to the members at favourable interest on jewels of gold and silver vessels or government promissory notes and of such other securities as may be approved by the Board of Directors. e) The company shall not do (i) Chit fund Business; (ii) Insurance Business (iii) Banking Business and Trafficking in shares and debentures and the company shall not operate a current account with the members. 3. The primary business of the company is to accept money from its members and in turn provide small ticket loans to its members not exceeding Rs. 15000/- per member/beneficiary. The members and the beneficiaries of the ap....

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....countant and he has made himself scarce. Then the appellant company approached the counsel and the said counsel did investigation and checked the MCA portal and found that the name of the company had been struck off. The appellant represented to the ROC to consider revival of the appellant company. The appellant stated that the appellant has been active since incorporation and has also been maintaining all the requisite documentation, as per the provisions of the Companies Act, 2013. 5. ROC submitted its report before the NCLT. Respondent stated that the appellant company has not filed Balance Sheet, statutory returns and Annual Returns upto date. Respondent therefore, initiated action under Section 248 of the Companies Act for striking off the name of the appellant. The appellant company was duly served a notice and after following due process of law the appellant company name was struck off and was published in the Gazette of India dated 15th -21st July, 2017 in page No.14800 of Gazette of India under S.No.12077. 6. After hearing the parties the Learned NCLT passed the impugned order dated 13.4.2018. Relevant portion of the impugned order is as under: "xxxx It has ....

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....e observations of the NCLT that the appellant is not engaged in any business is contrary to the facts of of the case as is evident from a cursory examination of the Financial Statement and Income Tax Returns of the Appellant. 11. The appellant submitted that the default in filing the returns was a result of lack of legal awareness of the directors of the appellant and the appellant did not act in any mala fide manner and non-filing of returns was only due to inadvertence. 12. The appellant submitted that NCLT has erred in treating payment of nil tax and incurring of loss as tantamount to not carrying on any business. The appellant further submitted that the since the appellant company is struck off, all its assets and liabilities are locked. The appellant submitted that not restoring the company will also result in the assets and liabilities of the appellant going into a limbo and remain useless. 13. Reply/report on behalf of the Respondent has been filed. The respondent stated that the appellant has not filed Balance Sheet and Annual Returns for the financial year 2011 onwards. The Respondent has, therefore, initiated action under Section 248 of the Companies Act, 2013 fo....

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....lar and English Language. Therefore, it can not be said that proper procedure was not followed and no opportunity was given to the appellant of being heard and principles of natural justice has been complied with. 19. The next issue raised by the appellant is that the appellant is carrying on the business and the Respondent has wrongly struck off appellant name from the register of companies. 20. We have gone through the record and found that the appellant has not filed Balance Sheet and Annual Returns for the financial year 2011 onwards and its directors ought to have filed statutory returns in compliance of provisions of the Companies Act. In the absence of any material being placed by appellant before the ROC, we fail to understand how ROC would know if the company is doing any business. 21 The other issue raised by the appellant is that the default in filing the returns was a result of lack of legal awareness of the directors of the appellant and the appellant did not act in any mala fide manner and non-filing of returns was only due to inadvertence. 22. We have gone through the record and gave our considerable thoughts on this issue. From the record we observe that....