TaxTMI 
TaxTMI 
2019 (8) TMI 1002
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....on the business to acquire by purchase, lease, exchange, hire or otherwise develop or operate land, building and hereditaments of any tenure or description including agricultural, land, mines, quarries, tea or coffee gardens, farms, gardens, orchards, groves, plantations and any estate or interest therein and any right over or connected with land and buildings so situates or to turn the same to account as may seem expedient and in particular by preparing building sites and by constructing, reconstructing, altering, improving, decorating, furnishing and maintaining hotels, rooms, flats, entertainment centres, multiplex complexes, convention halls, exhibition centres, club houses, resorts, shopping malls, houses, restaurants, bars, markets, shops, gardens, workshops, mills, factories, warehouses, cold storages, wharves, godowns, offices, hostels, gardens, swimming pools, playground, buildings and to deal in shares and securities, to do all kinds of financial business, work and conveniences of all kinds by leasing, hiring or disposing of the same to manage land, building and other properties whether belonging to the company or not, and to collect rents and income, and to supply tenant....
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....f the name of the company in the register of Companies maintained by the ROC. 4. The Ld. Practising Company Secretary on behalf of the company appeared and submitted that there were 7 (seven) shareholders holding shares of face value of Re 1/- in the company. The company was a going concern having unsecured loan of Rs. 14,50,000/- as its liabilities and had also made investment of Rs. 18,37,000/- in the shares of different companies. It was also pleaded that company had filed Income Tax Return for the financial year 2014-15 and had also filed copy of the bank statement along with the petition for the period from 2011 till 2017. It was also submitted that company had received couple of work orders which the company was unable to execute due to its legal status of a struck off company. It has also been pleaded that company came to know such legal status only when the representative of the company tried to file statutory documents as per the requirements of the Companies Act, 2013 as the company was not aware of the notification regarding striking off the name from the Register of Companies. The Ld. Company Secretary has further pleaded that directors of the....
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....ness or in operation for the last two (2) years. iv) It is evident from the records that the Company has not filed its balance sheets and annual returns since the financial year 31.03.2015 with the office of the respondent. As per Section 252 of the Companies Act, 2013, a struck off company can be restored only on the direction of the Hon'ble NCLT within a period of three (3) years from the date of the order of the Registrar. In this regard, it is submitted that in terms of the said provisions, the Hon'ble NCLT while passing an order for restoration it is to be satisfied that the company is carrying on business or in operation. The notices under section 248(1) of the Companies Act, 2013 (STK-I) dated 07.06.2018 was issued by speed post to the company and its directors that the company is not carrying on any business or operation for a period last two immediate preceding financial years and has not made any application within such period for obtaining the status of a dormant company under section 455 of the Act. v) That as per the available records maintained by the office of the Registrar of Companies, West Bengal M/s. Moon....
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...., Maharashtra, Mumbai. Aggrieved by the aforesaid order, ROC, Mumbai has filed SLP (c) No. 18693 to 18703/2018 before the Hon'ble Supreme Court. In the aforesaid SLP, the Hon'ble Supreme Court vide order dated 06.08.2018 stayed the operation of the order passed by the Hon'ble High Court at Bombay. In view of the above, any plea of the petitioner for activation of the DIN of the directors of the company should not be allowed. vii) Accordingly, it is submitted that if this Hon'ble NCLT on being satisfied that the Company was in operation at the time of striking off the name of the Company if at all, directs the respondent to restore the name of the Company, then there may be a direction upon the petitioners to make up to date filing of all statutory documents and to make all legal compliances prescribed under the Companies Act, 2013 immediately after restoration of the name of the Company. That in this regard it is submitted that presently the status of the company is 'struck off' and the company can be allowed to be revived under section 252 of the Companies Act, 2013 on its own merits directing petitioner to file all the pending statutory r....
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....ial year 2018-19 and the balance is only Rs. 18,337/-. Thus, on the basis of above factual position, even a man of ordinary prudence can form an opinion that no business / operations are being carried on. 9. The company has claimed to be in operations and the basis for such claims has been two work orders, copy of which have been placed at pages 188 and 189 of the Paper Book. The work orders are in relation to labour jobs for fabrication work and have been received on 12.02.2019 and 14.03.2019 respectively. No description as regards the nature of such fabrication work has been given nor any material has been produced to show that this job work has been executed or in progress. It is further worthwhile to note that as per both clauses of main objects of sub-clause A of clause III of MoA, such activity of fabrication (labour job) can be carried on, but neither Board resolution had been brought on record to show such intent of the company nor any evidence such as GST registration has been produced before us. 10. Thus, on the facts as narrated above, it is conclusively established that the company cannot be considered to be in operation. Further, merely so....
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....d an opinion that company was not carrying on business due to non-filing of annual financial statements, which has been corroborated on the basis of factual analysis of the financial statements filed along with this appeal and, therefore, there exists no ground for us to interfere with that opinion. 12. (i) In the appeal, it has been contended on behalf of the company that due to removal of the name of the company, its directors also got disqualified to function as directors under section 167(1) of the Companies Act, 2013 and that caused great hardship not only to them but also to the other companies where they were directors. There has been taken a plea that such action of Registrar was in violation of fundamental right as prescribed in Article 19(1)(g) of the Constitution of India. At the very outset, we make it amply clear that this Forum is not competent to deal with the constitutionality of the provisions of section 248 on the ground of violation of fundamental right as prescribed under Article 19(1)(g) of the Constitution. Having said so, however, it is a settled principle that fundamental rights enshrined in the Constitution of India are not unfettered and are....
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....officer continues even after dissolution of the company and remain enforceable as per provisions of section 248(7) and assets of the company also remain available for the payment or discharge of its liabilities and obligations as per proviso to section 248(6). It is also noteworthy that an obligation has been cast upon the Registrar under section 248(6) to satisfy himself that sufficient provisions have been made for realization of assets and for payments for discharge of its liabilities and obligations by the company within a reasonable period and for this purpose, Registrar can obtain necessary undertaking from Managing Director, Director or other persons in-charge of management of the company. However, when company or directors or other officers do not respond to the notice of ROC issued u/s 248(1), such compliance by ROC cannot be done and, in that event, other safeguards provided in section 248(6) and 248(7) as narrated hereinbefore to protect the interests of various parties remain available. (iv) Now we shall look at the provisions of section 455. Section 455 provides an opportunity to the company to retain its legal entity / existence during certain period as....
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....operate for different classes of companies, provisions of those sections will have to be applied. Hence, when a company is struck off under section 455(6), such company cannot be revived as such company is removed from register of dormant companies maintained by Registrar under the provisions of section 455(3) of Companies Act, 2013 whereas section 252 deals with the restoration of name of companies in register of companies maintained by Registrar in terms of provisions of section 2 (74) of Companies Act, 2013. This view can be further supported by the fact that as per Rule 3 of Companies (Miscellaneous) Rules, 2014 company can apply for classification as dormant company if restrictions mentioned therein do not exist in case of such company. For example, under section 252(3), even workmen can apply for restoration of the name of the company whereas a company having any workmen's dues cannot be classified as dormant company as per proviso to rule 3 of Companies (Miscellaneous) Rules, 2014. Similarly, company should not have any unsecured or secured loans for classification as dormant company. (ix) At the cost of repetition, we state that legislature has made speci....